30 June 2018

Trade challenges and public health

'Trade challenges at the World Trade Organization to national noncommunicable disease prevention policies: A thematic document analysis of trade and health policy space' by Pepita Barlow, Ronald Labonte, Martin McKee and David Stuckler in (2018) PLOS Medicine comments
It has long been contested that trade rules and agreements are used to dispute regulations aimed at preventing noncommunicable diseases (NCDs). Yet most analyses of trade rules and agreements focus on trade disputes, potentially overlooking how a challenge to a regulation’s consistency with trade rules may lead to ‘policy or regulatory chill’ effects whereby countries delay, alter, or repeal regulations in order to avoid the costs of a dispute. Systematic empirical analysis of this pathway to impact was previously prevented by a dearth of systematically coded data. ... 
Here, we analyse a newly created dataset of trade challenges about food, beverage, and tobacco regulations among 122 World Trade Organization (WTO) members from January 1, 1995 to December 31, 2016. We thematically describe the scope and frequency of trade challenges, analyse economic asymmetries between countries raising and defending them, and summarise 4 cases of their possible influence. Between 1995 and 2016, 93 food, beverage, and tobacco regulations were challenged at the WTO. ‘Unnecessary’ trade costs were the focus of 16.4% of the challenges. Only one (1.1%) challenge remained unresolved and escalated to a trade dispute. Thirty-nine (41.9%) challenges focussed on labelling regulations, and 18 (19.4%) focussed on quality standards and restrictions on certain products like processed meats and cigarette flavourings. High-income countries raised 77.4% (n = 72) of all challenges raised against low- and lower-middle–income countries. We further identified 4 cases in Indonesia, Chile, Colombia, and Saudi Arabia in which challenges were associated with changes to food and beverage regulations. Data limitations precluded a comprehensive evaluation of policy impact and challenge validity. ... 
Policy makers appear to face significant pressure to design food, beverage, and tobacco regulations that other countries will deem consistent with trade rules. Trade-related influence on public health policy is likely to be understated by analyses limited to formal trade disputes.

BioOffsets

'Are Koalas Fungible? Biodiversity Offsetting and the Law' by David Takacs in (2018) 26 NYU Environmental Law Journal comments
Humans are decimating nonhuman species and ecosystems, undercutting our own life support systems. In response, conservationists are crafting new ideas to sustain the biodiversity that sustains us all, and lawyers and policymakers are sculpting those ideas into law. 
Laws facilitating “biodiversity offsetting” are now on the books or in process in over 100 jurisdictions. Where biodiversity offsetting is permitted, developers may degrade or destroy biodiversity in one place in exchange for “offsetting” the damage elsewhere. 
But is life fungible? What does it signify — for human and nonhuman communities — when laws permit us to destroy koalas with certainty right here and now in exchange for offsetting hypothetical koalas in the future, over yonder? 
This Article describes this burgeoning practice of biodiversity offsetting, drawing on fieldwork in the United States, Australia, South Africa, and the United Kingdom. The Article explores the many, vehement objections to the process, and counter with the responses to those objections. It concludes that given the shortcomings of laws that guide traditional conservation efforts, and the specter of increasing human demands on a planet threatened by global climate change, offsetting done right can be one tool in a reconfigured approach to preserving nonhuman (and thus human) life on Earth. 
But how can offsetting be done “right?” Can it ever be anything other than a sop to developers? This Article develops criteria for what effective biodiversity offsetting would look like, explaining how offsetting can fit into landscape-level planning that serves human and nonhuman needs, and illustrate some examples of “best practice” offsetting from the field. 
The Article concludes with observations about what biodiversity offsetting says about conservation in the twenty-first century and what sustainable biodiversity conservation in the twenty-first century requires of biodiversity offsetting as we careen into a future of exploding human needs, chaotic climate change, and a renewed need to acknowledge our oft-overlooked crucial dependence on the natural world that sustains us all.

Monkey Selfie

'The Monkey Selfie case and the concept of authorship: an EU perspective' by Eleonora Rosati in (2017) 12(1) Journal of Intellectual Property Law and Practice 973–977 comments
 The question whether a macaque named Naruto can be regarded as the author of protectable works (self-portrait photographs, ie selfies) has captured popular attention, and has been the subject of litigation in the USA. Further to the 2016 decision of the US District Court for the Northern District of California that rejected that a monkey could have standing and the subsequent appeal to the Court of Appeals for the Ninth Circuit, the case was settled out of court in 2017. 
This short contribution discusses whether, generally speaking, copyright can vest in works by non-human authors. It does so from the perspective of international and EU laws, addressing issues such as originality, and the concept of ‘authorship’ in relevant legislative texts. 
It concludes that, while there remain ambiguities regarding who can qualify as an author, arguments can be advanced against consideration of works by non-human authors as protectable by copyright. However, the article also highlights how this issue is likely to resurface with reinvigorated force (and relevance) in light of technological advancement, notably in the context of artificial intelligence.

29 June 2018

Resilience

The latest Australian National Audit Office report on cyber-resilience looks at the Department of the Treasury, National Archives of Australia and Geoscience Australia.  The objective was to assess the effectiveness of the management of cyber risks by those bodies.

ANAO in summary comments
Background 
1. Cyber security is a strategic priority for the Australian government. A secure cyberspace provides trust and confidence for individuals, business and the public sector to share ideas, collaborate and innovate. 
2 To strengthen trust online, effective implementation of a comprehensive cyber security strategy across government systems is critical to protect Australians’ privacy and Australia’s social, economic and national security interests from targeted cyber intrusions and emerging cyber threats. The Attorney-General’s Department Protective Security Policy Framework outlines the core requirements for the effective use of protective information and communications technology (ICT) security. 
2. In February 2017, the Australian Signals Directorate issued the updated Strategies to Mitigate Cyber Security Incidents as a priority list of practical actions entities can take to make their ICT environment more secure. It referred to these cyber security strategies as the Essential Eight and recommended that entities implement the strategies as a security baseline. In June 2017, the Australian Signals Directorate also released the Essential Eight Maturity Model, to assist entities to assess the level of implementation of the Essential Eight mitigation strategies. A revised Model was issued in October 2017. 
3. Of the eight mitigation strategies, four are mandatory (the Top Four).  Since 2013, entities have been required to undertake an annual self-assessment against the mandatory requirements of the Protective Security Policy Framework. Key elements to achieving compliance with the mandatory mitigation strategies are: sufficient investment; appropriate processes; and a culture that recognises the importance of and requirements for cyber resilience. 
4. Three entities were included in the audit: Department of the Treasury (Treasury), National Archives of Australia (National Archives), and Geoscience Australia. These entities were selected based on the character and sensitivity of the information collected, stored and reported. 
5. Since 2013–14, the Australian National Audit Office (ANAO) has conducted three performance audits to assess the cyber resilience of 11 different government entities.4 These audits have identified high rates of non-compliance with the requirements of the Protective Security Policy Framework. 
Audit rationale 
6. The ANAO decided to conduct this fourth audit of entities’ management of cyber risks recognising ongoing parliamentary interest (including enquiries by the Joint Committee of Public Accounts and Audit) and the level of non-compliance with mandatory requirements identified in previous audits. In Report 467: Cybersecurity Compliance, the Joint Committee of Public Accounts and Audit recommended that the ANAO outlines the behaviours and practices it would expect in a cyber resilient entity and assess against these. Audit objective and criteria 
7. The objective of the audit was to assess the effectiveness of the management of cyber risks by the Department of the Treasury, National Archives of Australia and Geoscience Australia. 
8. The audit criteria were: do entities have effective arrangements in place for managing cyber risks; do entities monitor and report against cyber security deliverables; and were entities cyber resilient, with a culture of cyber resilience? 
Conclusion 
9. As with the ANAO’s previous audits of cyber security, this audit identified relatively low levels of effectiveness of Commonwealth entities in managing cyber risks, with only one of the three audited entities compliant with the Top Four mitigation strategies. None of the three entities had implemented the four non-mandatory strategies in the Essential Eight and were largely at early stages of consideration and implementation. These findings provide further evidence that the implementation of the current framework is not achieving compliance with cyber security requirements, and needs to be strengthened. 
10. Of the three entities, only Treasury was compliant with the Top Four mitigation strategies and cyber resilient. National Archives was not compliant with the Top Four mitigation strategies but had sound ICT general controls and so was assessed as not cyber resilient but internally resilient. Geoscience Australia was not compliant with the Top Four mitigation strategies and did not have sound ICT general controls so was assessed as vulnerable to cyber attacks. All three entities had implemented only one of the four non-mandatory mitigation strategies in the Essential Eight, and were not well progressed in considering an implementation position for the other three strategies. Figure S.1 shows each entity’s cyber resilience. 
11. Two entities had accurately self-assessed and reported their level of compliance with the Top Four mitigation strategies, and the other entity had not. There are shortcomings in the Essential Eight Maturity Model that limits its usefulness in its current form, and could lead to entities inadvertently overstating their cyber security compliance if it is used in performing the self-assessment. With activities underway to revise security reporting under the Protective Security Policy Framework, it is timely to also strengthen guidance supporting entities to self-assess compliance with the mandatory mitigation strategies and processes to verify the correctness of those assessments. 
12. The three entities had partly effective arrangements for managing cyber security risks, with specialist staff in dedicated security positions contributing to existing ICT processes and broader business models. However, the entities did not adopt a risk-based approach to prioritise improvements to cyber security, with cyber security investments focused on short-term operational needs rather than long-term strategic objectives. Until the National Archives and Geoscience Australia achieve compliance with the mandatory strategies, it is inappropriate to consider that a positive cyber resilience culture is in place.

28 June 2018

Tracking

'Location Tracking by Police: New Frameworks for Preserving Geolocational Privacy' by Bert-Jaap Koops, Bryce Clayton Newell and Ivan Skorvanek in (2019) 9 UC Irvine Law Review comments
Location information reveals people’s whereabouts, but can also tell much about their habits, preferences, and, ultimately, much of their private lives. Current surveillance technologies used in criminal investigation include many techniques to track someone’s movements; not all are equally intrusive. This raises the following questions: how do jurisdictions draw boundaries between lesser and more serious privacy intrusions? what factors play a role? how are geolocational privacy interests framed? In this Article, we answer these questions through a comparative analysis of location-tracking regulation in eight jurisdictions: Canada, Czechia, Germany, Italy, the Netherlands, Poland, the United Kingdom, and the United States. 
We analyze the legal status of location tracking through human observation, GPS tracking, cell-phone tracking, IMSI-Catchers (Stingrays), silent SMS, automated license-plate recognition, and directional Wi-Fi tracking in these countries. This results in highly context-dependent and case-specific assessments, in which eight factors play a role: use of a technical device, place, intensity, duration, degree of suspicion, object of tracking, covertness, and active generation of data. At a deeper level of analysis, we identify different conceptualizations of privacy underlying these assessments: not only classic privacy frames, such as communications secrecy, protection of home and body, and informational privacy, but also two new privacy frames: freedom of movement in combination with anonymity, and the mosaic theory. Thus, we discern a tentative but unmistakable shift in how lawmakers and courts assess the intrusiveness of location tracking, particularly of people’s movements in public space. 
Traditional privacy frames tend to downplay the seriousness of the privacy infringement enabled by location tracking, and our analysis demonstrates an increasing discomfort with this tendency, leading to the emergence of novel privacy frames (or theories). We conclude that legal privacy frameworks developed in past centuries prove ill-suited for assessing the privacy-intrusiveness of contemporary location-tracking investigation methods, and that emerging, novel frameworks for understanding and protecting privacy may provide lawmakers and courts with the tools needed to address the challenge of preserving (geolocational) privacy in the twenty-first century.

Droit de suite and blockchain

A perspective on droit de suite is provided by 'Democratizing Art Markets: Fractional Ownership and the Securitization of Art' from Amy Whitaker and Roman Kräussl.

The authors comment
Using unique historical sales data from the Leo Castelli Gallery, we introduce a novel model of evaluating art market returns using first-sale prices alongside auction results. We create a sample portfolio to analyze what would have happened if the artists Jasper Johns and Robert Rauschenberg had retained 10% equity in the work they sold through their dealer in the years 1958 to 1963, which was the start-up phase of the artists’ careers. We find that this retained-equity portfolio would have performed from 2.8 up to 140.8 times better (Rauschenberg) and from 24.9 up to 986.8 times better (Johns) than the S&P 500 over the same period. Modeling equity portfolios for artists changes the fundamental structure of art markets. Because the fractional equity is a property right under the Coase theorem, this system introduces a secondary market for shares in artwork. These shares could trade using a technology such as the blockchain and would allow more democratic and diversifiable access to investment in art markets. Our framework extends to other creative industries in which early-stage work is difficult to value.
They conclude
We undertook the analysis of whether fractional equity would outperform the art market because we observed the structural misalignment of price and value. We did not know at the outset that we would see such outsize performance. To outperform the market by a factor of five is handy; to do so by a factor of up 1,000 is suspicious. We acknowledge that we were working with the earliest work of two of the most well known American artists of the twentieth and twenty-first centuries. As stated earlier, we did not intend this work, by any means, to extend to describe the likely trajectory of all artists in markets. Our work here shows more simply what is possible, and given that large possibility, why the question of shared value matters. 
A system of fractional equity has downside risk, of course, but it is not a leveraged asset within this study and so the floor is zero, or is the opportunity cost of foregone gains in other investments. There would surely be many cases in which artists retained equity and received no gains, therefore giving up cash at the moment of sale. Yet to see the potential of the outsize gains leads us to believe that this structural intervention in markets for creative work deserves serious consideration and that it is perhaps artists themselves who should decide whether to take the risk of retained equity. In practice and over time, artists might not even forego income to retain equity; prices might adjust upward. 
We see several directions for future research. First, the magnitude of the degree to which the two artists’ retained equity portfolios outperformed the market leads us to want to design more conservative tests. As such, we would model larger portfolios with more heterogeneous performance, such as artworks sold in group shows, or whole collections. Second, we plan to develop further the ways of modeling the tax implications of donations and the resulting possibility of asset value truncation through donation, and to build valuation models that take into account artists’ costs of production. Third, through appraisal records, we plan to create more of a “mark to market” model rather than a linear imputed return. Finally, we intend to model a more dynamic portfolio construction, i.e., a portfolio with more buying and selling of art, which would start to describe the kind of investor behavior that would grow as fractional shares entered the market and trading in and out of them became relatively liquid. 
Fundamentally, artists have a real claim on the added value in art investors’ subsequent gains. Outside the arts, markets depend on innovation but lack systems to align rewards for creative risk with pay. We conclude by returning to the starting point of the data in this study, which was a handwritten notebook. In cursive handwriting in a small personal notebook, Leo Castelli recorded $300 sales that would go on to become multi-million dollar auction results. And before that, in poorly heated studios, the artists developed the art itself. The moment of value creation is, in its idiosyncrasy, markedly different from the moment of value capture as the work is later resold. The fractional equity model bridges the idiosyncratic starting point and possible stratospheric returns, while offering tools for diversified investment and democratized access to markets for art. The purpose of this study is broader than whether the artists receive a good investment return. The sheer act of assigning the equity is a structural alignment of price and value that generalizes beyond fine art, to represent ways of making the risks of research and development in early stage creative work in any field conform to the market’s ability to assign value. Ultimately, our model solves for the central difficulty of pricing—that is, accurately reflecting the value of—early-stage creative work. Value can be more flexibly, and in the long run more accurately, assigned as a fraction than a dollar amount. Thus, these now famous artworks have something crucial to tell us about the value created by labor, broadly defined. These artists underscore the necessity of seeing early-stage creative work as an act of investment. The blockchain enables a future of work in which anyone can have fractional ownership of the upside they help to create

IP Human Rights

'Does Intellectual Property Need Human Rights?' by Ruth Okediji in (2018) 50(1) New York University Journal of International Law and Politics comments 
The impassioned contest over the nature, scope, and implications of the intellectual property and human rights interface has important consequences for the way nations understand and comply with their obligations in each field. It significantly affects the methods and substance of international assistance offered to developing countries by international organizations, non-governmental organizations, and the extensive network of private experts deployed to facilitate competing outcomes in domestic legislation. The result has been a highly politicized environment for intellectual property norm-setting at all levels of global, regional, and national governance, resulting in a persistent state of norm conflict that weighs heavily on the already complex relations among domestic and international actors involved with intellectual property policymaking. 
This article provides a critical review of the contemporary construction of the intellectual property/human rights interface. On the whole, it advances a view of the human rights frame as problematic for the liberty aspirations and development interests of populations in the global South. Human rights law – both in its ideological orientation towards western liberal political traditions and in its pragmatic reliance on external constituencies for expertise and guidance - tends to stymie the necessary national debate that is a precursor for the cultivation of sophisticated local actors who can more ably challenge the structural challenges imposed by international intellectual property norms. In addition, the international human rights norm-setting process is heavily influenced by justifications for intellectual property. These design features of the relevant human rights institutions create significant challenges for the promise of a redemptive effect of human rights arguments on local intellectual property reform initiatives.

Digital Transformation Report

The Senate Standing Committee on Finance and Public Administration Digital Delivery of Government Services report offers a dim and in places distinctly partisan view of the latest grand vision to transform Commonwealth public administration.

The report comments on a 'Failure of leadership', stating
Transformation of any kind is challenging. It requires internal champions to overcome organisational inertia. 
The committee recognises that there are many senior public servants across the service who have sought to drive digital transformation within their departments. They have been let down in their efforts by the lack of a champion within government as a whole. 
Commenting elsewhere, former DTO CEO Mr Paul Shetler observed the following: "It's extremely difficult to get an incredibly bureaucratised, incredibly balkanised bureaucracy to decide it wants to transform itself. That's an awful lot of inertia in the systems built in...It's obviously possible to do that but you need to have strong support along the way from the ministers and the top. I think that there has to be the ambition to [digitally transform government] and extremely importantly I think there has to be the political will to do so."
The committee considers that the government has not demonstrated that it has the political will to drive digital transformation. This much is evidenced by the role it has given the DTA. 
At the time, the reorganisation of the DTO into the DTA was presented as representing an expansion of the agency's powers. In reality, although the agency's scope of operations did increase (for instance through the acquisition of responsibility for procurement), it was less empowered to take action. 
Now, two years later, the DTA performs a useful role in providing governance standards and guidance. Its contribution is muted because its role is confined to the level of assistance with discrete projects at the operational level. 
Even there, its involvement is limited. At the time of its creation, it was intended to operate as a 'powerful new program management office' that would track ICT and digital projects across the whole of government, stepping in to remediate where things are not working. 
In reality, it had only a minor role in the case studies examined by this committee. 
The DTA is supposed to maintain a watchlist of at risk projects. However the Biometric Identification Services that was suspended this month was not on the list despite being a large project which was already significantly overtime and over budget. 
The DTA has been sidelined in the new digital initiatives undertaken by the government. The committee heard that: Cyber policy will reside at the Department of Home Affairs. Data policy will reside at the Department of the Prime Minister and Cabinet. The newly created Office of the Information Commissioner is organisationally separate from the DTA. No one in the DTA monitors whether the reported notifications by that office relates to Australian Public Service entities—agency performance in relation to security is not in its brief. The soon to be created Data Commissioner will be organisationally separate from the DTA.
Cumulatively, the evidence heard by this committee revealed an organisation that was not at the centre of government thinking about digital transformation, or responsible for the creation and enactment of a broader vision of what that transformation would look like. 
Troublingly, no other organisation is. 
There is a clear need for a whole-of-government vision and strategic plan for the digital transformation of government administration. The evidence is of departments and agencies in silos looking internally and focussing on their own approach to the digital delivery of their particular government service, where in many respects all are facing the same challenges. 
In the absence of any central vision, individual departments (and ministers) may end up pursuing projects that run counter to the aims of digital transformation. In particular, there may be a temptation to view ICT investment solely as a way to realise efficiencies and cut costs, rather than as a mechanism for transforming government service. 
The committee believes that it is a mistake to take such a narrow view. The consequences of adopting this approach can be seen in the "Robo-debt" case study. The committee found it galling that DHS officers could claim that despite the hardships it caused, the program went 'very well' because it saved the government money. For the department the impact of the program on vulnerable people seemed to be an irrelevant in its design; irrelevant in its evaluation. 
The committee was told by Dr Seebeck of the DTA that: "One of the key elements of digital transformation as it was envisaged—and you can track this through the DTO to the DTA—is that focus on user centredness, which is traditionally not the way government has tended to operate. Making sure that the user is absolutely dead centre in terms of any work of any government department, of any proposal that comes forward, is part of that process."
It is difficult, if not impossible, to reconcile a program like "Robo-debt" with the principles of user-centredness that the DTA is supposedly responsible for engendering throughout government. 
This inconsistency is a direct product of the absence of a central vision for digital transformation. A cohesive and shared view, driven by a properly resourced and empowered department or agency, would serve to guide policy development and decision making by the bureaucracy and ministers alike. 
All departments and agencies would derive significant benefit from a whole-of-government strategic plan to achieve the digital transformation of government. Ultimate responsibility for this plan should rest with a central agency that is properly invested with powers and responsibility.
Further
True digital transformation is a higher aspiration. The government to date has been unable to meet even the lower objective of being able to replace aging infrastructure without major mishap. 
Digital projects—rightly or not—have a reputation in the public and private sectors alike for running overtime and over-budget. Over the past five years, however, the government has overseen a litany of failures, largely unprecedented in scale and degree. 
In November 2013, the newly elected Coalition Government initiated an audit of government ICT spending. Although there was some room for improvement, the review was largely positive about the value for money achieved for taxpayers and the nature of risk taken on by departments. 
The same could not be said today. Since the last election we have seen: The failure of the online delivery of the 2016 Census; Repeated crashes of the ATO website; Overrun and delay in the upgrades to the Child Support Agency infrastructure; Abandoning the GOV.AU redesign proposal; Halting the start of online NAPLAN testing; and Abandoning the AAMS apprenticeship platform. 
Shortly before this report was tabled, the already overtime and budget Biometric Identification Services project was suspended by the Australian Criminal Intelligence Commission, with contractors escorted off the premises. [discussed in my article in the next issue of Privacy Law Bulletin]
Each individual instance of failure, delay, and cost overrun can be explained by specific factors at the project level. However issues have arisen at every stage of the project lifecycle, in large and small undertakings, and across departments and agencies. The pattern of faults points to broader systemic problems. 
There seems to be serious deficiencies in the way that departments contract with the private sector. Although some ICT projects are delivered on time and on budget, too often government agencies appear to have assumed a risk that is inconsistent with both the contract price and community expectations. 
There are some examples of improvement. In its contractual arrangements for the WPIT project, for instance, DHS seems more willing to put its partners on risk for failure to deliver than it had been with previous projects in years earlier. 
This is heartening. It is not sufficient or satisfactory, however, to have a learning curve that is half a decade long and billions in taxpayer dollars deep. Nor should each department have to go on its own voyage of discovery. 
An independent audit of completed and ongoing major ICT projects would allow lessons to be drawn from the contracting (and subcontracting) arrangements entered into by departments. It would be able to identify common sources of problems, and compare the allocation and pricing of risk across projects and with best practice.
The Committee offers the following recommendations
1 With the increasing demands for government to improve the digital delivery of services and functions, the committee recommends that the government undertake a review of the digital, cyber and data policy functions performed across government—and then establish key digital performance measures shared and reported across departments and agencies. 
2  The committee recommends that the success of government digital transformation should prioritise measurement of user experience—as this is likely to also drive process improvements beyond simply the application of digital technology. 
3  The committee recommends that the government deliver an annual Ministerial Statement on Digital Transformation that reports on cross-portfolio progress to improve digital transformation, identifying leading performance in departments and agencies and also publicly explaining steps to lift performance on projects failing to meet budget or delivery expectations. 
4  The Committee recommends that the government establish a regular timetable to independently audit ICT contracting and subcontracting arrangements to identify whether government is taking on a level of risk that is consistent with the contract price and community expectations - and to help identify or improve contracting standards or set better principles based approaches to future contracting.. 
5  The Committee recommends that departments examine project budgets to identify and eliminate unnecessary spend on contractors, consultants and external vendors. Further, it should consider developing a longer term strategy to build internal public service capability to help drive the development or in house build of digital activities regularly contracted out by government. 
6  The committee recommends that the Australian Public Service Commissioner be tasked with developing a whole-of-government Australian Public Sector Information and Communications Technology career stream with mandated competencies and skill-sets for Information and Communications Technology professionals, government procurement officers, and Information and Communications Technology project managers. 
7  The committee recommends that the government routinely report on how it intends to lift the number of digital apprentices and trainees that it is currently recruiting into the public service. 
8  The committee recommends that the DTA be tasked with developing education and training initiatives to enhance the digital competency of all APS employees, including SES officers.

27 June 2018

IP norms and innovation

'Anti-Innovation Norms' by Stephanie Plamondon Bair and Laura G Pedraza-Farina in (2018) 112 Northwestern University Law Review 1069 comments
Intellectual property (IP) scholars have recently turned their attention to social norms-informal rules that emerge from and are enforced by non-hierarchically organized social forces-as a promising way to spur innovation in communities as diverse as the fashion industry and the open source software movement. The narrative that has emerged celebrates social norms' ability to solve IP's free-rider problem without incurring IP's costs. 
But this account does not fully consider the dark side of social norms. In fact, certain social norms, when over-enforced, can create substantial barriers to the most socially beneficial creative pursuits. Because intellectual property scholars have left unexplored how social norms can hinder innovation in this way, the harm they cause has gone unmitigated. 
This Article sheds light on the dark side of innovation norms. It coins the term "anti-innovation norms" to label these counterproductive social forces. Using the double lens of sociology and psychology, it gives a full theoretical account of three types of anti-innovation norms: research priority, methodology, and evaluation norms-all of which interfere with socially beneficial boundary-crossing innovation. 
Our elucidation of anti-innovation norms has both theoretical and policy implications. On the theory side, it suggests that IP scholars to date have been too focused on addressing the free-rider problem. This has caused them to overlook other barriers to innovation, like those posed by the set of anti-innovation norms we describe here. This focus on free-riding may also help explain why innovation and norms scholars have paid little attention to debates within the broader literature on law and social norms concerned with identifying situations in which social norms are welfare-reducing. On the policy side, it points to innovation dilemmas that IP is not fully equipped to solve. While changes to the IP doctrines of attribution and fair use in copyright and non-obviousness in patent law can counteract anti-innovation norms at the margin, a comprehensive solution requires innovation scholars to broaden their vision beyond the IP toolkit. We take the first steps in this direction, proposing a number of interventions, including novel funding regimes and tax credits.

26 June 2018

Not booking a one-way ticket to Asgardia

There is a long and colourful history of people - in Australia and elsewhere - setting up their own states, or what are purported to be states, gaining headlines and often ending in tears.

In Australia for example we have had the pseudo-state known as the Empire of Atlantium and the self-declared Prince John, Grand Duke of Avram, Marquis of Mathra, Earl of Enoch, Viscount Ulom, Lord Rama, Cardinal Archbishop of the Royal See of the Continent of Australia, Knight of Bountiful Endeavours, Knight of Sword, Knight of Merit (aka John Rudge).

I'm thus unsurprised to see the latest announcement about the Kingdom of Asgardia, a new 'nation' that will supposedly be located in space (possibly with real estate on the Moon rather than merely space stations) and supposedly feature a data haven that's more effective than Sealand.

The ABC has breathlessly reported
A Russian billionaire has held a lavish ceremony at a castle in Austria to declare himself the leader of a new, independent "space nation" called Asgardia. 
The self-funded event was held at the opulent Hofburg palace in Vienna and included a choral performance of the nation's anthem, an official oath, and a video message from Russian cosmonaut Oleg Artemiev on the International Space Station.  ... 
Asgardia is the brainchild of Russian rocket scientist Igor Ashurbeyli. He wants it to be the first fully independent "nation" in space, with its own government, virtual currency, justice system and calendar. ... While functioning as a real nation, Asgardia would also help protect the Earth and keep the peace in space, according to the project's official website. 
"Is it pioneering, futuristic and visionary — or madness? Call it what you will, and time will tell," Dr Ashurbeyli says. 
At the moment, anyone can become a citizen of Asgardia. But Dr Ashurbeyli has said he wants to attract the world's most creative minds, and may eventually bring in a mandatory IQ test for potential Asgardians. 
More than 200,000 people have already signed up via the nation's website, including thousands of Australians, but Dr Ashurbeyli wants to recruit a total population of about 150 million within the next 10 years.
The promo for Asgardia is somewhat confusing; on occasion the Asgardia site refers to it as a "space kingdom" in "low earth orbit".

In my doctoral dissertation I note the glorious history of pseudo-states, which often hold sway over no more than the teenage president or monarch's bedroom. Asgardia alas does not feature Rocket the Raccoon as its national animal but at least was not called the Kingdom of Chlamydia, Empire of Giardia or Space Republic of Delirium. I am reminded of Frank Zappa's comment on the signifiers of nationhood: "You can't be a real country unless you have a beer and an airline. It helps if you have some kind of a football team, or some nuclear weapons, but at the very least you need a beer."

Its pretensions are contrary to the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (aka Outer Space Treaty) and Montevideo Convention on the Rights and Duties of States 1933. Tthere is no reason to believe that it will achieve one of the key requirements in international law regarding statehood, ie recognition by existing states of Asgardia's existence, the authority of its passports, the immunity of its head of state - King Igor - and diplomats under the Foreign State Immunities Act 1985 (Cth), Vienna Convention on Diplomatic Relations 1961, Diplomatic Privileges and Immunities Act 1967 (Cth) and so forth.

Among Australian case law on non-recognition of such fantasy states see ACCC v Purple Harmony Plates Pty Ltd (No 3) [2002] FCA 1487, Commissioner for Fair Trading, Department of Commerce v Hunter [2008] NSWSC 277, Australian Prudential Regulation Authority v Siminton (No 6) [2007] FCA 1608, Casley v Commissioner of Taxation [2007] HCATrans 590 and Deputy Commissioner of Taxation v Casley [2017] WASC 161, Roman and Anor v Commonwealth of Australia and Ors [2004] NTSC 9, Williamson v Hodgson [2010] WASC 95, Maxwell (also known as Harley Robert Williamson) v Bruse [2012] WASC 12 and Avram v Official Trustee in Bankruptcy [2001] FCA 1480.

Hutt is noted here; Roman here.

Discrimination

The US Human Rights Campaign Foundation has released an indicative report on the US 'LGBTQ Workplace Climate'. The report covers data from a small survey in February and March 2018.

Salient claims are -
Despite Legal Gains, LGBTQ Workers Remain Closeted on the Job 
● 46% of LGBTQ workers are closeted at work 
● 50% of non-LGBTQ workers reported that there are no employees at their company who are open about being LGBTQ 
● Top reasons for not being open at work about their sexual orientation and gender identity:
› Possibility of being stereotyped: 38% 
› Possibly making people feel uncomfortable: 36% 
› Possibility of losing connections or relationships with coworkers: 31% 
› People might think I will be attracted to them just because I am LGBTQ: 27%
Broad Social Acceptance for LGBTQ Community at All-Time High, But Subtle Biases Remain 
● 1 in 5 LGBTQ workers have been told or had coworkers imply that they should dress more feminine or masculine (compared to 1 in 24 non-LGBTQ workers) 
● Both populations share: 73% of LGBTQ workers and 78% of non-LGBTQ workers say that they are comfortable talking about their spouse, partner, or dating to coworkers, but:
› ¼ LGBTQ employers report that coworkers who they are out to seem uncomfortable once they say something related to their sexual orientation or gender identity (e.g. mentioning a partner, spouse, personal history, etc.) 
› 36% of non-LGBTQ workers say they would feel uncomfortable hearing an LGBTQ colleague talk about dating, and 
59% of non-LGBTQ workers think that it is unprofessional to talk about sexual orientation and gender identity in the workplace
Sexual Orientation for LGBTQ People is Still Sexualized 
● 54% of non-LGBTQ workers said that they would be very comfortable working with an LGBTQ coworker; of those who wouldn’t be very comfortable, a majority said it was because they “didn’t want to hear about their coworker’s sex life” 
● 18% of LGBTQ workers reported that someone at work has made sexually inappropriate comments to them because their coworker thought their sexual orientation or gender identity made it okay 
● 53% of LGBTQ workers report hearing jokes about lesbian or gay people people (and 41% transgender-specific and 37% bisexual-specific jokes), while only 37% of their nonLGBTQ counterparts report hearing the same jokes 
Major Employers Losing Talent 
Engagement to Anti-LGBTQ Biases at Work 
Working in an unwelcoming environment that is not always accepting of LGBTQ people leads to:
● 25% of LGBTQ workers feeling distracted from work 
● 28% lying about their personal life 
● 17% felt exhausted from spending time and energy hiding their sexual orientation and 13% from gender identity 
● 20% of LGBTQ workers avoided a special event at work such as lunch, happy hour, or a holiday party 
● 25% of LGBTQ workers avoided certain people at work 
● 31% felt unhappy or depressed at work 
● 20% have stayed home from work because the workplace wasn’t always accepting of LGBTQ people 
● 20% searched for a different job 
LGBTQ Workers Lack Faith in Accountability Systems, Sometimes With Good Reason 
● The top reason LGBTQ workers don’t tell a supervisor or Human Resources about negative comments about LGBTQ people is because they don’t think anything would be done about it and because they don't want to hurt their relationships with coworkers 
● 1 in 10 employees have heard their own supervisor make negative comments about LGBTQ people – this statistic has remained the same since our first study in 2008 
● 45% of LGBTQ workers agree with the statement that enforcement of the non-discrimination policy is dependent on their supervisor’s own feelings towards LGBTQ people 
● 13% felt that they would be fired because their workplace was unwelcoming of LGBTQ people 
LGBTQ Climate Directly Affects Retention and Turnover 
● 1 in 4 LGBTQ workers have stayed in a job primarily because the environment was very accepting of LGBTQ people 
● 1 in 10 LGBTQ workers have left a job because the environment was not very accepting of LGBTQ people

AI proofing

Preparing For The Best And Worst Of Times by John Buchanan, Rose Ryan, Michael Anderson, Rafel A Calvo, Nick Glozier and Sandra Peter responds to the challenge by the NSW Department of Education to a 'a consortium of University of Sydney academics to consider the important question of what today’s kindergarteners will need to thrive and not just survive in the 21st century'.

The report states
The Department is particularly interested in the predicted changes that Artificial Intelligence (AI) and other developing technologies could bring to Australia’s economy, workplace and community. This report, which integrates insights from scholars in faculties as diverse as engineering and medicine, business and education is not a definitive analysis of all potentially relevant issues; rather, it explores some of the challenges and opportunities around these emerging technologies and what this might mean for education, particularly school education. 
Section 1 outlines the methodology for this interdisciplinary approach and how this report was prepared. 
Section 2 considers the three dimensions of impact associated with artificial intelligence. Its most overt impact is on job numbers and content. Its covert impact is on means of decision-making and social connection. Its impact as an amplifier of other changes is significant, especially given its capacity to  intensify dynamics associated with labour market fragmentation, globalisation, inequality and climate change. The central challenge is not to predict the future but to prepare for uncertainty. This is best achieved by developing in individuals the capacity to adapt successfully to changing situations. 
Section 3 considers how education might best nurture this capacity. The relationship between education and the labour market is not as obvious as commonly thought. Moreover, recent literature on improving people’s employability reveals formal education is only one (and not necessarily the most important) factor determining labour market success. That said, appropriate education is a vital ingredient. Arguably the most prevalent current narrative concerns the need for educators to focus on ‘soft’, ‘generic employability’ or so-called ‘21st century skills’.  Typically, these are defined as 'literacy and numeracy' and capabilities concerning ‘problem solving’, ‘creativity’, ‘communication’ and ‘collaboration’. This narrative, while superficially attractive, is ultimately not sufficient for guiding education policy and practice in an AI era. Any effective approach must grapple with four issues.
1. What types of pupils are we developing: highly flexible labour or florishing productive citizens? Many prescriptions in the current ‘future of work’ literature are predominantly concerned with developing what is best described as the ultra-flexible worker - ie people able to meet ever-changing market requirements. Drawing on the health, humanities and social science disciplines we highlight the importance of nurturing productive, flourishing citizens. 
2. How can education contribute to the development of human flourishing over the life course? Human development is a complex, multi-dimensional process. The early school years are critical for developing individuals’ ‘learner identity’. Primary schools in particular have a crucial role to play in shaping people’s learning dispositions. These concern such things as curiosity, the ability to concentrate, resilience and learning relationships. If nurtured well, they result in people empowered to learn, wanting to learn and excited by learning. If not developed early, their absence can have lasting effects on people’s willingness, interest in and capacity to learn and adapt. 
3. What is the relationship between developing general learning dispositions and developing specialist expertise? Using literature from disciplines as diverse as cognitive psychology, education, philosophy, engineering and applied labour economics we show specific knowledge is important. We highlight how gaining ‘generic’  skills (or, more accurately, learning dispositions concerning such things as collaboration and problem solving) are often best acquired in the context of mastering specific disciplinary, trade or professional expertise (i.e. having something substantive to contribute to a team or solving a problem). 
4. Are current approaches to gaining specialised knowledge providing students with welldeveloped learning dispositions? The mainstream academic curriculum focuses on fairly abstract analytical skills, perceived by many students as ‘too academic.’ Much vocational education and training in schools, on the other hand, focuses on developing narrow skills relevant to an immediate job. Academic disciplines need to better highlight their potential broader relevance to life (and not just the labour market). Keynes once observed that there is nothing more practical than a good theory. Why this is the case and how abstraction can be appropriately applied ‘in real life’ deserve closer attention. For vocational education, greater attention needs to be devoted to giving students underpinning knowledge for a broadly defined domain of expertise to increase their capacity to adapt to changing opportunities. 
Section 4 considers the implications for schools. There is a need to engage more effectively with AI and its broader impacts. Increasing ICT literacy is important but involves much more than teaching all students how to code. Rather, it involves equipping young people with digital fluency, ie to handle the ‘covert’ and ‘amplifying’ impact of AI as well as its more overt consequences for job destruction and transformation of job content. 
Widespread debate is needed on how to define domains of specialised knowledge necessary for underpinning the development of ‘generic’ skills. Recognised academic disciplines are important, but they are not the only categories for defining expertise. Special attention is especially needed for the vocational offering in schools. Take the example of care work. Instead of doing courses in ‘aged care’, ‘disability support’, ‘youth work’ or ‘drugs and alcohol support’, for example, consideration should be given to preparing people for ‘care work’ more broadly defined. This would provide the context for  practicing in the more specialised sectors. Closer engagement with the world of work challenges us to consider how we define domains of occupational capability. Notions of job clusters or vocational streams of connected occupations deserve closer attention from a wide range of stakeholders, within schools and beyond. 
The challenges associated with AI require more than marginal adjustments to established arrangements, best conceived of as an education ‘settlement’ or ‘compact’. Education, like most social domains, is structured by an array of stakeholders contributing in different ways. Currently employers and the community are not as actively engaged in local schools and education as they could be. Many are quick to criticise the status quo, but few are helping build new arrangements. The country’s education effort would benefit immensely from closer engagement with employers in the private and public sectors, and community organisations. While schools have been endeavouring to do this, quality engagement from the business sector has been limited. The importance of specialised knowledge - both academic and vocational - highlights the continuing importance of professional teachers. We conclude by asking whether it is time for a new education settlement. Such a settlement would give greater recognition to teacher professionalism on the one hand and support closer connections with quality employers and arts and community organisations on the other to develop the flourishing citizens of tomorrow

Braithwaite VET review and consumer protection

The All eyes on quality: Review of the National Vocational Education and Training Regulator Act 2011 report by Valerie Braithwaite has now been released by the Assistant Minister for Vocational Education and Skills.

The report states
Apprenticeships and traineeships; full qualifications, skill sets and micro-credentials: Australia’s vocational education and training (VET) sector provides a vital contribution to the skilling of the country’s workforce and hence its economy.
As the Productivity Commission noted in Shifting the Dial – Five year productivity review: “Not only does the system need to provide broad ranging job-related training relevant to employers, it must do so for a wide variety of students with very different needs. It is expected to be a place where young people leaving school can pursue non-academic pathways, where workers can retrain and gain new skills to keep pace with a changing economy, and where people marginalised by the traditional education system can get a second chance.”
However, as the Productivity Commission also noted, the VET sector has experienced significant disruptions in recent years, most notably the fallout from the VET FEE-HELP scheme, which gave rise to seriously unscrupulous behaviour resulting in significant harm being done not only to the sector’s reputation but to the wellbeing – financial and emotional – of a significant cohort of students.
In 2011, Australian governments agreed to change the regulatory structure for VET. Gone were the majority of state-based regulators, replaced with a new national regulator, the Australian Skills Quality Authority (ASQA), established under the National Vocational Education and Training Regulator Act 2011 (the NVETR Act). Regulating over 4,000 registered training organisations (RTOs), ASQA oversees entrance to the market, continuation within the market, and ultimately the exit of RTOs that choose to withdraw their provision. This report shows that ASQA quite frequently also removes their privilege of offering nationally recognised training.
Six years on, and in the face of evolving regulatory practice and theory and a changing VET regulatory landscape, the Australian Government initiated a review of ASQA’s establishing legislation, as well as the broader VET legislative and quality frameworks. Ensuring that these frameworks support a responsive, effective and efficient approach to regulation to further the quality of the national VET sector was an important motivation for the review.
While aware that the technical terms of reference would guide the focus of the review, it was clear during the review’s commission that the student experience – and more importantly safeguarding desirable student outcomes – would provide the prism for viewing the current regulatory framework and recommendations for improvements. The conduct of the review has been informed by the terms of reference outlined in Appendix A in the sense that the review seeks out principles that inform the interpretation of the legislative and regulatory framework and have implications for student outcomes. It is through these principles that the terms of reference are addressed. The narrative and recommendations arising from the review are unapologetically broader than might be expected from a narrow reading of the relevant legislation. This review recognises that the operations of the regulator are indivisible from the legislative framework under which it operates, and how it interprets that framework.
Chapter 2 provides an explanation of how and why principles are important in ensuring regulatory action achieves desirable student outcomes, that is, competent graduates who have had a positive learning experience. Principles enable regulatory partnerships. Partnerships bring cooperation so that many other parties can become ‘eyes’ for ASQA and broadcasters of quality messages. Chapter 2 sets out the principles for a regulatory framework that can simultaneously build a positive culture of cooperation, reward excellence and embrace innovation, while also curbing unacceptable conduct through a system of controls and sanctions. Subsequent chapters review sector concerns over matters raised in the terms of reference and ASQA’s capacity to respond within the current legislative and regulatory framework. Sector concerns can be addressed through recommendations that strengthen ASQA’s capacity to act within the legislative and regulatory framework while promoting greater use of principles and regulatory conversations (Chapters 4 and 5). Change of this kind would assist ASQA explain its regulatory actions to the sector more clearly and partner with stakeholders in leading the sector through the compliance floor and toward the ceiling of improved training quality and student outcomes.
As described in Chapter 3, the review was informed by meetings with key players in the sector, a public submissions process and visits to a number of RTOs, details of which are outlined in Appendices C and D. It is important to reflect that during the conduct of the review, it was clear that the vast majority of RTOs, trainers and assessors were committed to delivering high quality training. There were examples of high quality curriculum materials, pedagogy, training and learning facilities, in addition to well-articulated visions of what the training was achieving and contributing to the lives of the learners. However, submissions and stakeholders also presented evidence of how students had faced disadvantage. When RTOs closed and failed to provide student records to allow learners to demonstrate to other trainers achieved skills and completed units of competency, the students had no basis for gaining recognition for their prior learning. Some of the worst abuses involved unconscionable contracts between RTOs and students that placed learners at serious disadvantage.
There was acknowledgement that ASQA has a challenging role in maintaining and improving quality in the VET sector. While it has a wide range of regulatory powers at its disposal, the size of the market it oversees is significant. It regulates a continuum of organisations ranging from the highest performers to those acting on the edges of almost criminal enterprise. ASQA has, within a relatively short period of time, evolved its regulatory practice from predominantly simply processing applications to the development of a sophisticated risk-based model, and more recently to the introduction of a five-stage student-centred audit model. Stakeholders commented favourably on this evolution. Equally the review has identified paths to further improvement.
The VET sector would benefit from improvements in the strategic collection, analysis and circulation of data as well as a stronger ability to manage entrance to the market. These issues are discussed in Chapter 5 with recommendations for greater openness and timeliness in relation to access to the National Centre for Vocational Education Research (NCVER) RTO-aggregated data, and a higher bar for gaining and maintaining registration as a VET provider.
The review has not found that, at this stage of the evolution of the regulatory framework, there are major deficits in its functions and powers that disable ASQA from appropriately regulating the current VET environment. There is a strong expectation that quick and effective regulatory action be taken against providers whose non-compliance is harming students, employers and the reputation of the sector. But the review has found that providing ASQA and other regulatory agencies have better access to data that is as close as possible to real time, there is scope for ASQA to use its current powers to sanction such RTOs while drawing on back-up support from partnership networks in the sector. Deepening the quality of regulatory conversations in ways that sharpen and refine existing tools is the imperative rather than creating a wide range of new formal powers. As discussed in Chapters 4 and 5, the sector broadly supports ASQA working in partnership with it. There is readiness to embrace opportunities to connect the formal regulator with other experts and partners in the regulatory culture to lift standards.
Equally important and aligned with these developments is the principle that ASQA cannot mandate quality: As a regulator its role is to motivate RTOs to reflect on their performance, what they might do better and how they might go about improving their performance. Recommendations in this review favour continuous improvement over mandating quality standards that all RTOs must achieve. Ultimately, the way ASQA should regulate for quality (as opposed to sufficiency) is to look at how well RTOs go about setting their own higher standards, checking if such standards are met, motivating through praise and encouragement and support when they have achieved improvement, and advising on options when they have not.
The dominant theme that has emerged can be captured by reference to the ethos of the regulatory framework, and more tangibly, ASQA’s regulatory philosophy and culture (Chapter 4). There were concerns about the compliance burden on RTOs, the inconsistency of audits and auditors, the difficulty in making sense of ASQA’s regulatory approach, and a disconnect from what RTOs considered important for regulation of the sector. In short, ASQA’s regulatory task is made more difficult and the sector’s anxieties are increased by a lack of supportive regulatory conversations. A new path for restoring some balance in this regard has been opened through a general appreciation of ASQA’s move to its new audit model that recognises the need to prioritise the student experience and outcomes. As this model is fully rolled out, there is opportunity to address some of the sector’s concerns that are summarised in Appendix D. More regulatory conversation to pre-empt compliance audits, using partners to regulate on issues where RTOs admit non-compliance, the inclusion of more people who can help with compliance in post-audit conversations are essentially cooperative strategies that can give ASQA more time to focus on the hard cases (see Chapter 5). Transparency of ASQA audits is a further recommendation in Chapter 5 to widen and inform the sector on where systemic weaknesses lie and where strengths may be found. With timely data and a sector that has an improved understanding of how ASQA operates, ASQA will be better positioned to encourage compliance and sanction when compliance conversations fail.
Deepening VET professionalisation and the commitment of the teaching workforce to continuous improvement in the quality of teaching and learning are also imperative. During the conduct of the review, the Australian Government Department of Education and Training referred recommendations three and four from the Training and Assessment Working Group Report, recommendations that focused on improving the quality and professionalisation of the VET workforce. While this review did not find that the actions contained in the two recommendations would, by themselves, lead to significant improvements in VET quality, they did mirror two of four emerging issues that were concerns and challenges for the sector’s future – training quality and teaching professionalism (RTO ethics and student protection and wellbeing being the other two emerging issues). Convincing RTOs to invest in quality teachers and providing career paths for VET teachers gave rise to three recommendations in Chapter 5. Requiring RTOs to reflect on and report their progress in lifting the quality of teachers in their RTO is a recommendation buttressed by sector engagement in finding ways to reward quality teachers. The review recommends kick-starting efforts to create a more vibrant labour market in VET teaching through creating the position of Master Assessor. Master Assessors are also master trainers who adopt a leadership role in professional development and provide a service in what is essentially external assessment for high risk VET industries in the sector. ASQA can interrogate an RTO’s success in delivering desirable student outcomes through engaging the services of a Master Assessor.
Throughout the review, stories arose of students whose experiences of their VET journey could be classed as disappointing if not demoralising. Stories were told of students incurring enormous debts for training they did not start or were unlikely to be able to successfully complete. Many were unable to secure refunds when their circumstances changed. Abuse and exploitation were seen as persistent problems. Consumer protection has not kept abreast of the increasing commodification of students and the business practices that have exploited them. Chapter 6 focuses on essential reforms to protect vulnerable students and their wellbeing, including reforms to tuition assurance schemes and the establishment of a Tertiary Ombudsman to deal with the fragmentation of consumer protection across the country.
The review accepts that the establishment of ASQA under the NVETR Act has, on balance, been a helpful start to establishing a VET regulatory framework to clean up such abuses. It has reduced overlap and duplication across the country, and the reforms to ASQA’s audit model augur well for the future. It is also acknowledged that ASQA performs its essential role in a complex and challenging environment. Few regulators in Australian history have cancelled registrations for such a large number of businesses in a relatively short period of time; yet few have faced such major challenges of profound importance to Australia’s future.
Further evolution of the regulator’s philosophy and practice, broader partnerships with informal regulatory forces informed by the principles in the regulator’s statute, and improvements in the provision and use of data are likely to pay higher dividends than merely technical changes to a legislative framework that already provides significant ‘teeth’. Focusing the ‘eyes’ of all the sector – government bodies, funders, employers, professional associations, peak bodies and students – on quality is essential to ensure desirable student outcomes and return Australia’s VET sector to its previously enviable international standing. The review suggests that the Government commit to evaluating ASQA according to its success in driving continuous improvement in the quality of education and training and protection of the rights of students, both of which are integral to desirable student outcomes.
The recommendations in the report are -
1. ASQA develop and implement processes to enhance its capabilities and opportunities to proactively engage in regulatory conversations with students, teachers, RTOs, industry and other interested stakeholders. The desired outcomes are to improve the value of the student-focused regulatory approach and involve the sector in developing the regulatory culture that drives ASQA’s use of its legislative powers. 
2. In order to enhance transparency and consistency in the use of the legislative framework, ASQA should build on its regulatory conversations and practice reflections to develop and clearly articulate to the regulatory community the principles applied to the interpretation of legislation and the use of powers. 
3. ASQA works with RTOs to develop positive assurance flags to include in the ASQA risk matrix and develop a mutually agreed method of communicating this information publicly without increasing the compliance burden on RTOs. 
4. The Australian Government amends the legislative framework to ensure that entrants to the registered training market be required to clearly demonstrate educational commitment and knowledge of how to provide best practice support to students. This statement of commitment should be required as a condition of registration and include quality performance objectives, which, if breached, could lead to sanctions and ultimately de-registration. 
5. The Australian Government strengthens the fit and proper person requirements and change notification requirements under the NVETR legislation and where appropriate aligns them with TEQSA and ESOS Act provisions and any other relevant legislation. 
6. The Australian Government amends the legislative framework to ensure greater scrutiny of new providers to: • provide that where an RTO without reasonable justification does not commence providing training within 12 months of being registered, or during its registration ceases to provide training for a 12-month period, its registration automatically lapses, meaning that it would no longer be registered. • prevent RTOs changing the scope of the courses they deliver where an RTO has been operating for less than 12 months. 
7. The legislative framework be revised to require an RTO to assess the quality of its teaching workforce and develop teacher quality improvement actions, which must be submitted to ASQA annually as a part of the Quality Indicator Annual Summary report. 
8. The Training and Education Training Package be reviewed with the purpose of creating a career path for teaching excellence in vocational education and training. 
9. The Australian Government leads a process to raise the standards of teaching and training excellence and professionalism in the sector through creation of the role of Master Assessor. A Master Assessor would be placed at the pinnacle of the VET teacher/trainer career path with the responsibility to mentor through professional development programs and assess the quality of an RTO’s next cohort of graduating students. 
10. The legislative framework be amended to increase the frequency of data provision to the National Centre for Vocational Education Research to quarterly for all RTOs. 
11. The Australian Government prioritises the improvement of policies and systems that allow for transfer of real-time data for timely use by other agencies with regulatory responsibilities for identifying and responding to emerging sectoral and provider-based issues. 
12. a. The Australian Government and the National Centre for Vocational Education Research explore ways to increase student response rates to the Student Outcomes Survey, and b. The National Centre for Vocational Education Research, ASQA, and the sector identify a module of questions that directly addresses the quality of the student journey in the Student Outcomes Survey. 
13. The legislative framework be amended to enable the National Centre for Vocational Education Research to make the RTO level data it holds publicly available and identifiable. 
14. The Australian Government explores ways to strengthen the regulatory framework by expanding the circle of dialogue around improving the quality of the student journey pre- and post-audit to include all stakeholders who could contribute to future improvement in an RTO’s performance. 
15. The National Vocational Education and Training Regulator Act 2011 be amended to require ASQA to publicly release audit reports. 
16. The legislative framework be amended to require RTOs to publish nationally consistent consumer information that is accessible and meaningful to students and meets the basic needs for decision making (for example, course entry requirements, course length, employment outcomes, and fees, including subsidies and course cancellation fees). 
17. The legislative framework be amended to strengthen ASQA’s ability to take action under a general prohibition against misleading or deceptive conduct which reflects Australian Consumer Law requirements. 
18. The legislative framework be amended to require RTOs to strengthen consumer protection in student enrolment agreements through the adoption of contracts that avoid unfair terms as defined in Australian Consumer Law. 
19. The legislative framework be amended to require RTOs to keep electronic records showing a minimum of student completions of units, courses and qualifications over the life of the RTO, preferably using an AVETMISS-compliant student management system. 
20. The Australian Government investigates ways in which, in cases of administration and liquidation, priority is given to the timely provision of student records to ASQA and the protection of students’ investment in their education. 
21. The legislative framework be amended to explicitly address student safety and wellbeing in alignment with the Higher Education Standards Framework (Threshold Standards) 2015. 
22. The Australian Government considers strengthening tuition assurance by assuming responsibility for the operation of all tuition assurance and protection arrangements and ensuring that the scope of these arrangements protects all VET students. 
23. The Australian Government establishes a national Tertiary Sector Ombudsman.

25 June 2018

Transparency in Health Insurance

The Australian Competition and Consumer Commission's latest report on competition and consumer issues in the private health insurance industry (covering 1 July 2016 to 30 June 2017) highlights the need to improve transparency in that sector.

The report was released amid controversy over HealthEngine's provision to law firms of referrals, ie alerting what one colleague dourly characterises as 'ambulance chasers' of potential litigation opportunities on the basis of patients seeking medical consultations, and controversy about the marketing practice of leading firms.

The ACCC states
This report analyses key competition and consumer developments and trends in the private health insurance industry during the reporting period that have affected consumers’ health cover and out-of-pocket expenses.
A major focus in recent reports has been on whether health insurers and other participants’ practices may be affecting the ability of consumers to make informed decisions when purchasing and comparing private health insurance, or accessing particular products or services under their existing policies.
Consumers remain concerned about the affordability of private health insurance
The affordability of private health insurance continues to be an area of significant consumer concern. A consumer survey conducted in 2016–17 found that the affordability of private health insurance is the second biggest cost of living concern for Australian households, after electricity prices.
Premium increases have been greater than inflation and wage growth in recent years. In response to higher prices, consumers are switching to more affordable policies with greater exclusions and restrictions. In response to higher prices, some consumers appear to be exiting the private health insurance market. There was a small reduction in the proportion of Australians holding private health insurance during 2016–17.
Consumer complaints continue to rise
In 2016–17, complaints about private health insurance to the Private Health Insurance Ombudsman (PHIO) increased by 30 per cent, continuing a trend of increasing complaints which have risen for the fourth consecutive year.
The PHIO reported that 88 per cent of complaints in 2016–17 were about health insurers. The benefits paid by insurers to consumers continued to receive the highest level of complaints— over 30 per cent of total complaints—the main issue of concern being hospital policies with unexpected exclusions and restrictions.
The ACCC continues to pursue enforcement activity in the health sector
Private health insurers and other health industry participants have been the subject of a number of recent ACCC enforcement matters. These include ACCC actions and investigations in relation to NIB, Australian Unity, and Ramsay Health Care Australia. The ACCC has also granted authorisation to health insurer HCF and participating dentists to agree on a maximum price for some dental services, and is awaiting the outcome of an appeal against Medibank. ...
The observations in this report are made in the context of ongoing government consideration of a series of reforms to the sector, with the aim of making private health insurance simpler and more affordable. Many of the consumer issues identified by the ACCC, including in previous private health insurance reports, are under active consideration. The ACCC welcomes the reforms announced by the Australian Government in October 2017 to the private health insurance industry and recommends that competition and consumer law principles be considered as part of the implementation of these reforms.
The ACCC has previously identified that there are continuing challenges in how information is provided to consumers of private health insurance. The ACCC has found that the existing standard information statement—a broad summary of key policy features all health insurers are required to provide to consumers—does not provide sufficient information for consumers to understand the key benefits and limitations of their policies.
The Australian Government has announced that the standard information statement will be replaced with a new minimum data set. The ACCC recognises this significant reform and considers it to be important that the new minimum data set is effective in informing consumers about their private health insurance policies and of changes to the benefits available under those policies. The ACCC considers that the new minimum data set should:
  • provide consumers with more reliable and transparent information in relation to the extent of each policy’s coverage 
  • provide consumers with sufficient information to make informed choices when comparing and selecting policies 
  • enable consumers to understand the extent of their financial exposure to additional health costs 
  • include clear and prominent disclosures with respect to applicable out-of-pocket costs in hospital for all items listed.
The ACCC also considers that private health insurers are capable of providing consumers with significantly more detail on their gap arrangements. The new minimum data set should include a clear description of the gap arrangements for each insurer. The proper disclosure of an insurer’s gap arrangements is fundamental to providing consumers with an informed choice when selecting a policy, as gap arrangements may be a key differentiating factor when comparing hospital insurance policies.
The ACCC will closely monitor developments relating to these and other policy processes and consider the competition and consumer aspects of any reforms.
One thought is that HealthEngine must improve the transparency of its information provision to ensure meaningful consent. Inadequate self-regulation justifies state intervention. Further, health practitioners should strongly dissociate themselves from inadequate disclosure of such sharing.

FTAs and EU Data Protection

Trade and privacy: complicated bedfellows? How to achieve data protection-proof free trade agreements (Institute for Information Law, 2018) by Kristina Irion, Svetlana Yakovleva, and Marija Bartl for BEUC, CDD, TACD and EDRi assesses
how EU standards on privacy and data protection are safeguarded from liberalisation by existing free trade agreements (the General Agreement of Trade in Services (GATS) and the Comprehensive Economic and Trade Agreement (CETA)) and those that are currently under negotiation (the Trans-atlantic Trade and Investment Partnership (TTIP) and the Trade in Services Agreement (TiSA)).
The report
was jointly commissioned by the European Consumer Organisation (BEUC), the Center for Digital Democracy (CDD), the Transatlantic Consumer Dialogue (TACD) and European Digital Rights (EDRi), and executed by the Institute for Information Law (IViR) at the University of Amsterdam. Based on the premise that the EU does not negotiate its privacy and data protection standards, the study clarifies safeguards and risks in respectively the EU legal order and international trade law. 
In the context of the highly-charged discourse surrounding the new generation free trade agreements under negotiation, this study applies legal methods in order to derive nuanced conclusions about the preservation of the EU’s right to regulate privacy and the protection of personal data. The EU legal order itself carries robust safeguards that protect EU privacy and data protection standards from (involuntary) liberalisation via the international trade agreements to which the EU is party. Not only are the fundamental rights to privacy and the protection of personal data well entrenched in EU primary law, but the principle of “autonomy of the EU legal order” and the lack of “direct effect” in conjunction with international trade law moreover preclude EU law from being automatically changed. International trade agreements to which the EU is or will become a party should be consistent with all aspects of EU legislation on data protection, which vests, by international standards, the highest level of protection. Even when it cannot overturn EU legislation, international trade law should not become a venue for challenging the EU approach to the protection of personal data. The EU’s global policy model and its legitimacy vis-à-vis its trade partners must not be undermined. The contemporary ubiquity of the processing of personal data in cross-border trade in services renders data protection measures especially susceptible to being probed for their compliance with the EU’s commitments in international trade agreements. The potential for trade disputes is not just an issue of the EU entering into further commitments on data flows, but a current risk with existing commitments in core disciplines in international trade agreements. The EU’s right to regulate, as recognised in international trade agreements, is subject to certain trade-conforming limitations and conditions. Under the GATS, for example, a party may adopt measures that are not inconsistent with the obligations and commitments assumed under this agreement. In the case that measures are found to be GATS-inconsistent, the general exceptions are the central bulwark for defending a party’s right to regulate, and the only context within which regulatory objectives and concerns can be deliberated. As a concrete example, the EU rules on transfers of personal data to third countries (Chapter IV of the Data Protection Directive), which aim to protect the remainder of EU data protection law from circumvention, have been exposed to a finding of GATS inconsistency. This means that the requirements of the general exceptions must be met in order to defend this EU measure. Entering into additional commitments on free data flows without a prudential carve-out for a party’s privacy and data protection laws would only raise the bar for justification, and compound pressure on the general exceptions. 
The GATS carries an explicit exception on privacy that is subject to a series of tests, leaving a certain margin for interpretation that cannot be fully anticipated from a solely EU-centric perspective. There is an entire spectrum of opinions as to whether or not some measures of EU data protection law would meet the general exceptions. In addition, EU policy and practice could fall short of the required level of consistency, for example in how the Commission administers adequacy decisions. Not only is there a need to update trade rules for the digital economy and cross-border data flows but, from an EU perspective, it is also necessary to upgrade the exception for privacy and data protection. Entrusting the EU’s right to regulate in new generation free trade agreements to the general exceptions, which are modelled after the GATS, would perpetuate a residual legal risk. Note in this respect that EU negotiators injected an additional safeguard for EU rules on the transfer of personal data to third countries in CETA’s Financial Services Chapter. 
This study underscores the formula of the European Parliament that new free trade agreements should contain “a comprehensive, unambiguous, horizontal, self-standing and legally binding provision based on GATS Article XIV which fully exempts the existing and future EU legal framework for the protection of personal data from the scope of this agreement, without any conditions that it must be consistent with other parts of the [agreement].” As long as this is not granted, the EU should not enter into additional commitments concerning free data flows in new and enhanced disciplines that lack any reference to the party’s privacy and data protection laws. In relation to new provisions that each party shall adopt or maintain a privacy and data protection legal framework, they should not be linked to any qualitative conditions (e.g. “adequate”, “non-discriminary”), nor to principles and guidelines of international bodies if these would introduce a ceiling for the acceptable level of protection. The table below [not copied in this blogpost] lists all of the safeguards and risks identified in the study. The recommendations that follow are addressed to EU decision makers and trade negotiators respectively, and list practical steps for how to strengthen and modify existing safeguards on privacy and data protection in order to make them fit for purpose in next generation free trade agreements.
The report offers the following recommendations for EU decision makers and trade negotiators as 'practical steps for how to strengthen and modify existing safeguards on privacy and data protection in order to make them fit for purpose in next generation free trade agreements'.
1. Underscoring the formula of the European Parliament that new free trade agreements better entrust their right to regulate in the field of privacy and data protection to ... a comprehensive, unambiguous, horizontal, self-standing and legally binding provision based on GATS Article XIV which fully exempts the existing and future EU legal framework for the protection of personal data from the scope of this agreement, without any conditions that it must be consistent with other parts of the [agreement]. 
2. Underscoring the European Parliament’s position that additional commitments concerning free data flows in new and enhanced disciplines should not be disconnected from any reference to the party’s privacy and data protection laws. CETA’s Chapter on Financial Services, for example, introduces an exception for regulating the cross-border transfer of personal data.
3. In relation to new positive obligations that each party shall adopt or maintain a privacy and data protection legal framework, these should not be linked to any qualitative conditions (e.g. “necessary”), nor to the principles and guidelines of international bodies if these would introduce a ceiling for the acceptable level of protection. 
4. Pursuant to the EU’s current practice, insert “no direct effect” clauses in free trade agreements and Council decisions approving these free trade agreements. In order to forego any finding of “direct effect”, avoid reference in EU legal acts to specific provisions in free trade agreements.
5. With a view to protecting EU privacy and data protection standards, it should be incumbent on the European Data Protection Supervisor (EDPS) to issue opinions on the texts of free trade agreements that the EU plans to adopt. 
6. When there is reason to believe that a new free trade agreement to which the EU will become a party negatively affects EU privacy and data protection standards, a Member State, the European Parliament, the Council or the Commission should initiate an advisory opinion procedure at the Court of Justice as provided for in Article 218(11) of the TFEU. 
7. Adequacy assessments and decisions by the Commission must not grant differential treatment to some third countries and not to others. The Commission should adopt procedural rules for the administration of the assessment of adequate levels of protection for third countries, thereby facilitating “consistency of enforcement”.
8. The Commission should publish impact assessments on preserving the EU’s right to regulate in areas of public interest and legal reasoning based on which it concludes, with sufficient certainty, that EU data protection law in all aspects satisfies the requirements of the general exceptions modelled after GATS Article XIV(c)(ii).
9. EU institutions should commission a study into enterprise customers’ preferences in the outsourcing and provisioning of computer services involving the personal data processing in order to build an evidence base supporting the fact that EU data protection law is a differentiating factor in the competitive relationship between services and service suppliers.