20 October 2018

Not a silver bullet

An interesting answer to the wrong question? The new NIST Blockchain Technology Overview by Dylan Yaga, Peter Mell, Nik Roby and Karen Scarfone comments that
Blockchains are tamper evident and tamper resistant digital ledgers implemented in a distributed fashion (i.e., without a central repository) and usually without a central authority (i.e., a bank, company, or government). At their basic level, they enable a community of users to record transactions in a shared ledger within that community, such that under normal operation of the blockchain network no transaction can be changed once published. This document provides a high-level technical overview of blockchain technology. The purpose is to help readers understand how blockchain technology works. 
The authors go on to state
In 2008, the blockchain idea was combined with several other technologies and computing concepts to create modern cryptocurrencies: electronic cash protected through cryptographic mechanisms instead of a central repository or authority. The first such blockchain based cryptocurrency was Bitcoin.
Within the Bitcoin blockchain, information representing electronic cash is attached to a digital address. Bitcoin users can digitally sign and transfer rights to that information to another user and the Bitcoin blockchain records this transfer publicly, allowing all participants of the network to independently verify the validity of the transactions. The Bitcoin blockchain is stored, maintained, and collaboratively managed by a distributed group of participants. This, along with certain cryptographic mechanisms, makes the blockchain resilient to attempts to alter the ledger later (modifying blocks or forging transactions).
Because there are countless news articles and videos describing the “magic” of blockchain technology, this paper aims to describe the method behind the magic (i.e., how blockchain technology works). Arthur C. Clarke once wrote, “Any sufficiently advanced technology is indistinguishable from magic”. Clarke’s statement is a perfect representation for the emerging applications of blockchain technology. There is hype around the use of blockchain technology, yet the technology is not well understood. It is not magical; it will not solve all problems. As with all new technology, there is a tendency to want to apply it to every sector in every way imaginable. To help promote correct application, this document provides information necessary to develop a high-level understanding of the technology.
Blockchain technology is the foundation of modern cryptocurrencies, so named because of the heavy usage of cryptographic functions. Users utilize public and private keys to digitally sign and securely transact within the system. For cryptocurrency based blockchain networks which utilize mining (see section 4.1), users may solve puzzles using cryptographic hash functions in hopes of being rewarded with a fixed amount of the cryptocurrency. However, blockchain technology may be more broadly applicable than cryptocurrencies. In this work, we focus on the cryptocurrency use case, since that is the primary use of the technology today; however, there is a growing interest in other sectors. Organizations considering implementing blockchain technology need to understand fundamental aspects of the technology. For example, what happens when an organization implements a blockchain network and then decides they need to make modifications to the data stored? When using a database, modifying the actual data can be accomplished through a database query and update. 
Organizations must understand that while changes to the actual blockchain data may be difficult, applications using the blockchain as a data layer work around this by treating later blocks and transactions as updates or modifications to earlier blocks and transactions. This software abstraction allows for modifications to working data, while providing a full history ofchanges. Another critical aspect of blockchain technology is how the participants agree that a transaction is valid. This is called “reaching consensus”, and there are many models for doing so, each with positives and negatives for particular business cases. It is important to understand that a blockchain is just one part of a solution. 
Blockchain implementations are often designed with a specific purpose or function. Example functions include cryptocurrencies, smart contracts (software deployed on the blockchain and executed by computers running that blockchain), and distributed ledger systems between businesses. There has been a constant stream of developments in the field of blockchain technology, with new platforms being announced constantly – the landscape is continuously changing.
There are two general high-level categories for blockchain approaches that have been identified: permissionless, and permissioned. In a permissionless blockchain network anyone can read and write to the blockchain without authorization. Permissioned blockchain networks limit participation to specific people or organizations and allow finer-grained controls. Knowing the differences between these two categories allows an organization to understand which subset of blockchain technologies may be applicable to its needs. 
Despite the many variations of blockchain networks and the rapid development of new blockchain related technologies, most blockchain networks use common core concepts. Blockchains are a distributed ledger comprised of blocks. Each block is comprised of a block header containing metadata about the block, and block data containing a set of transactions and other related data. Every block header (except for the very first block of the blockchain) contains a cryptographic link to the previous block’s header. Each transaction involves one or more blockchain network users and a recording of what happened, and it is digitally signed by the user who submitted the transaction. 
Blockchain technology takes existing, proven concepts and merges them together into a single solution. This document explores the fundamentals of how these technologies work and the differences between blockchain approaches. This includes how the participants in the network come to agree on whether a transaction is valid and what happens when changes need to be made to an existing blockchain deployment. Additionally, this document explores when to consider using a blockchain network. 
The use of blockchain technology is not a silver bullet, and there are issues that must be considered such as how to deal with malicious users, how controls are applied, and the limitations of the implementations. Beyond the technology issues that need to be considered, there are operational and governance issues that affect the behavior of the network. For example, in permissioned blockchain networks, described later in this document, there are design issues surrounding what entity or entities will operate and govern the network for the intended user base. 
Blockchain technology is still new and should be investigated with the mindset of “how could blockchain technology potentially benefit us?” rather than “how can we make our problem fit into the blockchain technology paradigm?”. Organizations should treat blockchain technology like they would any other technological solution at their disposal and use it in appropriate situations.

MyHR report

Yet another Parliamentary Committee report on the deeply flawed MyHR scheme, this time from the Senate Community Affairs References Committee.

Its My Health Record system report features the following recommendations, which I discussed in an ABC interview last night.
R1 - 5.12 The committee recommends that record access codes should be applied to each My Health Record as a default and that individuals should be required to choose to remove the code. The committee further recommends that the ability to override access codes in the case of an emergency should only be available to registered healthcare providers for use in extraordinary and urgent situations. 
R2  - 5.15 The committee recommends that the Australian Government amend the My Health Records Act 2012 to protect the privacy of children aged 14 to 17 years unless they expressly request that a parent be a nominated representative. 
R3 - 5.16 The committee recommends that the Minister for Health amend the My Health Record Rule 2016 to extend the period for which a My Health Record can be suspended in the case of serious risk to the healthcare recipient, such as in a domestic violence incident. 
R4 - 5.19 The committee recommends that data which is likely to be identifiable from an individual's My Health Record not be made available for secondary use without the individual's explicit consent. 
R5 - 5.21 The committee recommends that the current prohibition on secondary access to My Health Record data for commercial purposes be strengthened to ensure that My Health Record data cannot be used for commercial purposes. 
R6 - 5.23 The committee recommends that no third-party access to an individual's My Health Record be permissible, without the explicit permission of the patient, except to maintain accurate contact information. 
R7 - 5.25 The committee recommends that the Australian Government amend the My Health Records Act 2012 and the Healthcare Identifiers Act 2010 to ensure that it is clear that an individual's My Health Record cannot be accessed for employment or insurance purposes. 
R8 - 5.26 The committee recommends that access to My Health Records for the purposes of data matching between government departments be explicitly limited only to a person's name, address, date of birth and contact information, and that no other information contained in a person's My Health Record be made available. 
R9 - 5.28 The committee recommends that the legislation be amended to make explicit that a request for record deletion is to be interpreted as a right to be unlisted, and as such, that every record is protected from third-party access even after it is deleted, and that no cached or back-up version of a record can be accessed after a patient has requested its destruction. 
R10 - 5.32 The committee recommends that the Australian Digital Health Agency revise its media strategy to provide more targeted comprehensive education about My Health Record. 
R11 - 5.36 The committee recommends that the Australian Digital Health Agency identify, engage with and provide additional support to vulnerable groups to ensure that they have the means to decide whether to opt out, whether to adjust the access controls within their My Health Record and how to do this. 
R12 - 5.37 The committee recommends that the Australian Government commit additional funding for a broad-based education campaign regarding My Health Record, with particular regard to communicating with vulnerable and hard to reach communities. 
R13 - 5.38 The committee recommends that the Australian Government extend the opt-out period for the My Health Record system for a further twelve months. 
R14 - 5.45 The committee recommends that the My Health Record system's operator, or operators, report regularly and comprehensively to Parliament on the management of the My Health Record system.


The NSW Law Reform Commission has released its consultation paper regarding Consent in relation to sexual offences.

The Commission's Terms of Reference are
 to review and report on consent and knowledge of consent in relation to sexual assault offences, as dealt with in s 61HA of the Crimes Act 1900 (NSW). In undertaking this review, the Commission should have regard to:
1. Whether s 61HA should be amended, including how the section could be simplified or modernised; 
2. All relevant issues relating to the practical application of s 61HA, including the experiences of sexual assault survivors in the criminal justice system; 
3. Sexual assault research and expert opinion; 
4. The impact or potential impact of relevant case law and developments in law, policy and practice by the Commonwealth, in other States and Territories of Australia, and internationally, on the content and application of s 61HA; and 
5. Any other matters that the NSW Law Reform Commission considers relevant.
The Papaper asks the following questions -
3. The meaning of consent 
Q3.1: Alternatives to a consent-based approach (1) Should the law in NSW retain a definition of sexual assault based on an absence of consent? If so, why? If not, why not? (2) If the law was to define sexual assault differently, how should this be done? 
Q3.2: The meaning of consent (1) Is the NSW definition of consent clear and adequate? (2) What are the benefits, if any, of the NSW definition? (3) What problems, if any, arise from the NSW definition? (4) What are the potential benefits of adopting an affirmative consent standard? (5) What are the potential problems with adopting an affirmative consent standard? (6) If NSW was to adopt an affirmative consent standard, how should it be framed? (7) Should the NSW definition of consent recognise other aspects of consent, such as withdrawal of consent and use of contraception? If so, what should it say? (8) Do you have any other ideas about how the definition of consent should be framed? 
4. Negation of consent 
Q4.1: Negation of consent (1) Should NSW law continue to list circumstances that negate consent or may negate consent? If not, in what other ways should the law be framed? (2) Should the lists of circumstances that negate consent, or may negate consent, be changed? If so, how? 
5. Knowledge about consent 
Q5.1: Actual knowledge and recklessness (1) Should “actual knowledge” remain part of the mental element for sexual assault offences? If so, why? If not, why not? (2) Should “recklessness” remain part of the mental element for sexual assault offences? If so, why? If not, why not? (3) Should “reckless” be defined in the legislation? If so, how should it be defined? (4) Should the term “reckless” be replaced by “indifferent”? If so, why? If not, why not? 
Q5.2: The “no reCasonable grounds” test (1) What are the benefits of the “no reasonable grounds” test? (2) What are the disadvantages of the “no reasonable grounds” test? 
Q5.3: A “reasonable belief” test (1) Should NSW adopt a “reasonable belief” test? If so, why? If not, why not? (2) If so, what form should this take? 
Q5.4: Legislative guidance on “reasonable grounds” (1) Should there be legislative guidance on what constitutes “reasonable grounds” or “reasonable belief”? If so, why? If not, why not? (2) If so, what should this include? 
Q5.5: Evidence of the accused’s belief (1) Should the law require the accused to provide evidence of the “reasonableness” of their belief? If so, why? If not, why not? (2) If so, what form should this requirement take? 
Q5.6: “Negligent” sexual assault Should NSW adopt a “negligent” sexual assault offence? If so, why? If not, why not? 
Q5.7: “No reasonable grounds” and other forms of knowledge (1) Should a test of “no reasonable grounds” (or similar) remain part of the mental element for sexual assault offences? (2) If not, are other forms of knowledge sufficient? 
Q5.8: Defining “steps” (1) Should the legislation define “steps taken to ascertain consent”? If so, why? If not, why not? (2) If so, how should “steps” be defined? 
Q5.9: Steps to ascertain consent (1) Should the law require people to take steps to work out if their sexual partner consents? If so, why? If not, why not? (2) If so, what steps should the law require people to take? 
Q5.10: Considering other matters (1) Should the law require a fact finder to consider other matters when making findings about the accused’s knowledge? If so, why? If not, why not? (2) If so, what should these other matters be? 
Q5.11: Excluding the accused’s self-induced intoxication (1) Should a fact finder be required to exclude the accused’s self-induced intoxication from consideration when making findings about knowledge? If so, why? If not, why not? (2) Should the legislation provide detail on when the accused’s intoxication can be regarded as self-induced? If so, what details should be included? 
Q5.12: Excluding other matters (1) Should the legislation direct a fact finder to exclude other matters from consideration when making findings about the accused’s knowledge? If so, what matters should be excluded? (2) Is there another way to exclude certain considerations when making findings about the accused’s knowledge? If so, what form could this take? 
Q5.13: A single mental element (1) Should all three forms of knowledge be retained? If so, why? If not, why not? (2) If not, what should be the mental element for sexual assault offences? 
Q5.14: Knowledge of consent under a mistaken belief Does the law regarding knowledge of consent under a mistaken belief need to be clarified? If so, how should it be clarified? 
Q5.15: Other issues about the mental element Are there any other issues about the mental element of sexual assault offences that you wish to raise? 
6. Issues related to s 61HA 
Q6.1: Upcoming amendments (1) What are the benefits of the new s 61HE applying to other sexual offences? (2) What are the problems with the new s 61HE applying to other sexual offences? (3) Do you support applying the legislative definition of consent and the knowledge element to the new offences? If so, why? If not, why not? 
Q6.2: Language and structure (1) Should changes be made to the language and/or structure of s 61HA (and the new s 61HE)? If so, what changes should be made? (2) Should the definition of “sexual intercourse” be amended? If so, how should sexual intercourse be defined? 
Q6.3: Jury directions on consent Are the current jury directions on consent in the NSW Criminal Trial Courts Bench Book clear and adequate? If not, how could they be improved? 
Q6.4: Jury directions on other related matters Should jury directions about consent deal with other related matters in addition to those that they currently deal with? If so, what matters should they deal with? 
Q6.5: Legislated jury directions (1) Should jury directions on consent and/or other related matters be set out in NSW legislation? If so, how should these directions be expressed? (2) What are the benefits of legislated jury directions on consent and/or other related matters? (3) What are the disadvantages of legislated jury directions on consent and/or other related matters? 
Question 6.6: Amendments to expert evidence law (1) Is the law on expert evidence sufficiently clear about the use of expert evidence about the behavioural responses of people who experience sexual assault? If so, why? If not, why not? (2) Should the law expressly provide for the introduction of expert evidence on the behavioural responses of people who experience sexual assault? If so, why? If not, why not?

18 October 2018

Fairness and Fatness

'Fairness and Abstraction in Sociotechnical Systems' (ACM Conference on Fairness, Accountability, and Transparency (FAT*) by Andrew D. Selbst,  danah boyd, Sorelle Friedler, Suresh Venkatasubramanian and Janet Vertesi comments
A primary goal of the FAT* community is to develop machine-learning based systems that, once introduced into a social context, can produce social and legal goals such as fairness, justice, and due process. Bedrock concepts in computer science such as abstraction and modular design are used to define notions of fairness and discrimination, to produce fairness-aware learning algorithms, and to intervene at different stages of a decision-making pipeline to produce "fair" outcomes. In this paper, however, we contend that these concepts render technical interventions ineffective, inaccurate, and sometimes dangerously misguided when they enter the societal context that surrounds decision-making systems. We outline this mismatch with five "traps" that fair-ML work can fall into even as it attempts to be more context-aware in comparison with traditional data science. We draw on studies of sociotechnical systems in Science and Technology Studies to explain why such traps occur and how to avoid them. Finally, we suggest ways in which technical designers can mitigate the traps through a refocusing of design in terms of process rather than solutions, and by drawing abstraction boundaries to include social actors rather than purely technical ones.
'Fat horses and starving sparrows' by Rebecca Giblin  in (2018) 232 Overland comments
‘One of the most salient features of our culture is that there is so much bullshit’ – so begins moral philosopher Harry Frankfurt’s treatise on bullshit and its function. Bullshit comes, he argues, from one who ‘does not care whether the things he says describe reality correctly’, but says them regardless, in pursuit of their desired ends.
Bullshit has been enjoying unprecedented success in recent years. The Mexicans will pay for the wall. Britain’s National Health Service will enjoy a weekly £350m injection after Brexit. Australia stops the boats to prevent drownings at sea. But the bullshit I’m interested in right now is that populating Australia’s copyright reform debates.
A great deal of this bullshit is motivated by good intentions – most notably, the desire to sustain writers’ incomes in an era of precipitous, disastrous decline. In the last major survey, conducted by Macquarie University researchers in 2015, Australian authors were found to earn an annual average of just $12,900 from their writing work; the median, at $2,800, is even more concerning. In the UK, which has better longitudinal data, earnings of professional writers have dropped 42 per cent in real terms between 2005 and 2017, according to the Authors’ Licensing and Collecting Society. In that same time, the proportion able to make a living solely from writing work fell from 40 per cent to 13.7 per cent. The jobs at newspapers and magazines that used to so often be relied on to bolster book earnings have largely evaporated. Many of us know people who have lost their writing jobs, or who are just barely clinging on. Much of the blame is aimed at Google and Facebook, and understandably so: the two companies have managed to vacuum up some 60 per cent of global online ad revenue, despite investing almost nothing in producing the content to which it’s attached.
But pure intentions don’t stop bullshit from being bullshit. Frankfurt’s theory doesn’t require nefarious aims – simply the saying of things, regardless of truth, in pursuit of desired ends. As he puts it, ‘[t]he bullshitter … does not reject the authority of the truth, as the liar does, and oppose himself to it. He pays no attention to it at all.’
Frankfurt sees bullshit as the greatest enemy of truth. I don’t know if I agree, but I do think bullshit is dangerous. In this case, the bullshitters’ indifference to facts is hurting the interests of the authors they are ostensibly trying to protect.
So what is the bullshit I’m talking about? And what are the issues and interests it serves to obscure?
Let’s start with ‘free is not fair’, the catchy slogan of a campaign led by the Copyright Agency, which has been used to argue against the proposed adoption of a ‘fair use’ exception to copyright. For those who haven’t been following, there has been fierce debate over whether Australia ought to adopt a flexible exception to copyright infringement that would permit, without payment, any kind of use, so long as it’s ‘fair’. This is already the law in countries such as the US, with ‘fairness’ determined by taking into account all relevant factors, including the effect of the use on the potential market for or value of the copyright material.
Many people claiming that ‘free is not fair’ know a lot about copyright. They know that our law has permitted, for over a century, fair use for purposes such as research, criticism/review and news reporting. And, unless you think you should pay for every use of every copyrighted thing – for example, every time you access a webpage, use a search engine, forward an email or retweet a photo – you know free can be fair. The slogan even contradicts itself, since under a fair-use exception, if the use of a work for free is not fair, it wouldn’t be permitted. That is the entire point. Thus ‘free is not fair’ is textbook bullshit.
The widespread claim that the Productivity Commission recommended copyright be reduced from its current period (life of the creator plus seventy years) to a flat twenty-five years is bullshit, too. I’ll come back to what the commission did say shortly, but for now it’s sufficient to say that it made no such recommendation. In fact, the commission explicitly stated that international law would prevent it from making such a change. The publishers who pushed the claim knew all this, but ran with it anyway.
Of course, there is also bullshit coming from the other side of the debate. Those seeking to expand user rights sometimes make blithe assurances that this will have negligible impact on uses that are currently paid. Fair use certainly should work that way, since courts would be required to take into account potential market harms in determining whether a use is ‘fair’ at all. But the distinct lack of emphasis on safeguards or guarantees can justifiably give rise to concerns that those making the claims do not ‘care whether the things he says describe reality correctly’ – especially if they come from those who are already gobbling up your lunch.
Counterintuitively though, it’s the ostensibly pro-author claims that risk harming authors the most. Those arguing to maintain the current regulations may see these slogans as benign simplifications. After all, copyright is arcane and complex. Free is not fair is a simpler sell than Free is sometimes fair, but we worry judges might find things to be fair when we think they should be paid for.
Similarly, The Productivity Commission wants to take away your copyrights is a proxy for We think its recommendations are against our interests in ways that are too complex to explain, so we are going to arouse your outrage against a non-existent threat to undermine what else it had to say.
However well intentioned these claims might be, they sell authors short. The reasons why can be found in the two fundamental rationales for granting copyright in the first place. ...
Giblin goes on to comment
Australia’s current approach to protecting authors is a manifestation of trickledown economics, that theory of horses and sparrows: feed the horses enough oats and some will fall through to feed the birds. There are plenty of oats. By 2016, according to their own publicly released data, publishing behemoths Penguin Random House and Simon and; Schuster had seen their profit margins grow to 16 per cent. Yet a recent study, The Contribution of the Publishing Industry to the UK Economy, estimated that just 3 per cent of earnings went to the authors from whose minds sprang those rivers of gold. In other words, we have fat horses and starving sparrows.
This is why bullshit in the copyright debate is dangerous. By conflating authors’ interests with those of investors, we obscure the important differences between them. And it distracts us from the questions we should be asking – such as how can we secure authors a fairer share, while also maintaining incentives.

15 October 2018


The major Preventing Harm, Promoting Justice: Responding to LGBT conversion therapy in Australia report by Timothy W. Jones, Anna Brown, Lee Carnie, Gillian Fletcher and William Leonard
addresses the vexed problem of the religious LGBT conversion therapy movement. Conversion therapy emerged in Australian conservative Christian communities in the early 1970s, and has been practised in these and other communities ever since.
It is grounded in the belief that all people are born with the potential to develop into heterosexual people whose gender identity accords with that assigned to them at birth.  It views lesbian, gay, bisexual and transgender people as suffering from ‘sexual brokenness’, which can be cured. Full membership of faith communities can depend on same-sex attracted and gender diverse people committing to live celibate lives and seeking ‘healing’ for their sexual brokenness.
The report states
Psychological research has produced overwhelming clinical evidence that practices aimed at the reorientation of LGBT people do not work and are both harmful and unethical. All Australian health authorities, including the Christian Counsellors Association of Australia, now ‘strongly oppose any form of mental health practice that treats homosexuality as a disorder, or seeks to change a person’s sexual orientation’.  In 2014, nine ex-leaders of the ‘Gay Conversion Therapy Movement’ offered a public apology for the damage their movement had caused. ‘We now stand united in our conviction,’ they said, ‘that conversion therapy is not “therapy” but is instead ineffectual and harmful’. Nonetheless, our research suggests that up to 10% of LGBT Australians are still vulnerable to harmful conversion therapy practices. At least ten organisations in Australia and New Zealand currently advertise the provision of conversion therapies.
Rather than receding, our research suggests that conversion practices and ideologies are being mainstreamed within particular Christian churches. Ex-gay and ex-trans ideology, counselling and pastoral activities are still being promoted in the messages and teachings of many churches, mosques and synagogues, through print and digital media and through some Christian radio programmes.
In Australia, growing professional and government interest in minimising the harms of conversion therapy has not yet been matched by evidence and data. This report provides the first academic research on the nature and extent of LGBT conversion movements in Australia and the first detailed accounts of the impact of conversion therapy on the lives of LGBT Australians of faith. Such data is vital in determining what types of legal and community interventions are appropriate and most likely to be effective in addressing the harms associated with conversion therapy. The report makes recommendations for legal, policy and programmatic reform to respond to conversion practices in Australia. 
This report highlights the nature, extent and impact of LGBT conversion therapies in Australia. The report is designed to help government, support services and faith communities to better respond to those experiencing conflict between their gender identity or sexual orientation and their beliefs.
The study aimed to:
• illuminate the unique experiences and needs of LGBT people of faith who have undergone some form of religion-based conversion therapy; 
• outline the history, prevalence and changing nature of services provided to LGBT people of faith in Australia that pathologise same-sex attraction and gender diverse identities; 
• provide assistance to religious organisations and communities that promote and practise conversion therapy to provide more appropriate support to their LGBT members as they reconcile their religious, gender and sexual identities; 
• canvas international legal models and conduct a human rights based analysis of the issue and the competing rights and interests at play to inform the proposed legislative response; and 
• survey the existing legal landscape in Australia (with a particular focus on Victoria as an illustrative example) and consider legislative and regulatory options to restrict the promotion and provision of conversion therapies and similar practices, including by faith communities and organisations and both registered and unregistered health practitioners. 
Understanding and responding to this complex problem requires an interdisciplinary approach. In this report we have combined historical, social and legal research and analysis to enhance our understanding of conversion therapy practices in Australia and to make recommendations for reforms to prevent harm and promote justice in this area. Our methodology is stepped out in Chapter Two.
The short but dynamic history of the Australian religious LGBT conversion therapy movement is presented in Chapter Three. The historical review shows that attempts to reorient LGBT people are recent. In clinical medicine they were only ever experimental and were never successful.
Prior to the 1970s, the predominant religious approach to LGBT people was pastoral. When mainstream medicine ceased to experiment with the reorientation of LGBT people, faith-based conversion therapies and organisations emerged. These developed independently in Australia before becoming affiliated with like-minded international organisations in the 1980s.
In recent times, the conversion therapy movement has presented itself in more ethically acceptable postures, disguising its anti-LGBT ideology and reorientation efforts in the language of spiritual healing, mental health and religious liberty.
At the heart of this report, in Chapters Four and Five, are the voices and lived experiences of 15 LGBT people with experiences of conversion therapy, documented through social research. The participants engaged with various conversion therapy practices between 1986 and 2016 as part of their struggle to reconcile their sexuality or transgender identity with the beliefs and practices of their religious communities. For the majority of them, this has taken an extraordinary toll and they have ultimately been forced to choose between one part of themselves at the expense of another.
Those who have sacrificed their religious beliefs to be true to their sexuality or gender diverse identity have had to deal with the deep grief that comes with a loss of faith and being separated from their faith-based community, family and friends. Those who have remained faithful to the beliefs of their religious communities have often done so by denying their sexual feelings or gender diverse identity in order to pass as heterosexual and cisgender. Some live in a constant struggle to maintain their diverse gender, sexual identity and faith in the face of varying degrees of rejection from both LGBT and religious communities. 
International human rights experts and legislators in other countries have responded to the issue of conversion therapy and associated practices. Chapter Six reviews the available international human rights law, jurisprudence and commentary on conversion practices and provides an analysis of the competing interests and issues at play to determine the obligations upon States to intervene and prevent the harm occasioned to LGBT people by conversion therapies and related practices. While the focus of UN commentary and analysis has been on more extreme coercive or involuntary practices, international human rights law provides a useful analytical framework to explore the appropriate level of State intervention. A review is also provided of the legal responses to conversion practices that have been developed in countries around the world to inform the model that should be adopted in Australia. The existing law and regulatory landscape in Australia relevant to conversion practices is examined in Chapter Seven. Health law and regulations including complaints mechanisms, professional codes for health practitioners, child abuse reportable conduct schemes, consumer law, anti-discrimination law and other civil law avenues are surveyed.
Gaps in Australian law and recommendations for action to facilitate the end of conversion practices in this country are presented in Chapter Eight. The most important finding of our research is that responding to conversion practices in Australia requires a multi-faceted strategy. We propose a number of legislative and regulatory reforms, with a particular focus on young people given their vulnerability. However, these reforms will not touch many conversion practices that occur in faith-based settings between freely consenting adults. The most effective way to address the harms perpetuated in these environments is through targeted, evidence based interventions, made in partnership with affected communities. It is our hope that this research will raise awareness of the severity of the harms occasioned through conversion therapy, and support the development of more appropriate pastoral care for LGBT people of faith. Preventing Harm, Promoting Justice looks to a future where no person of faith is pressured to choose one valued and sacred part of themselves at the expense of another. It looks to a time where all faith communities recognise and value their LGBT members, where LGBT young people of faith are nurtured and protected and where LGBT people of faith can live and love openly without fear of abuse, ridicule or religious exclusion

14 October 2018

Sports Collapse

Another trainwreck in the VET sector, with The Age reporting that Agoge Education Australia has been told its status as a Registered Training Organisation will be cancelled on 31 October.

Agoge  closed campuses in Sydney, Brisbane, Melbourne and Newcastle in June, having been promoted  as a "global leader in innovative sports education".

Agoge reportedly was  linked to  FC 11, a sports training academy promoted as  "Australia’s leading sports education provider” before its collapse in February with debts of over $5 million and $4945 in the bank.

Problems at both bodies are symptomatic of regulatory failure across the vocational education sector, belatedly addressed in the recent Braithwaite report noted here.

The  Age reports that an investigation by the Australian Quality Skills Authority found Agoge was  in breach of government guidelines for the sector and that its "executive officers and/or high managerial agents failed to meet the fit and proper person requirements".

Michael Katsaris, an Agoge Director and one of the owners of FC 11, is reported as stating that  consumers received a "blue-ribbon course" with an 80 per cent completion rate, above the average for other registered training organisations. He appears to have denied any breach of fiduciary duty, reportedly stating "We always acted honestly when it came to our students and we did everything we could to give them a positive experience. There are so many crooks in the industry and we were one of the only ones trying to do the right thing.''

The Age appears unimpressed, noting that former students of FC11 contacted Fairfax in May when the training provider  when had been put into liquidation, .complaining they had debts of over $25,000 for diplomas that were "not worth the paper they were printed on''. One unhappy customer of  Agoge is reported as having been influenced by marketing material of elite training facilities, sports scientists, high-performance coaches and links to some of the nation’s biggest clubs and associations. Reality appears to have been somewhat different: "When I got to training on the first day, there was a bloke with a bag of soccer balls and some cones. They didn't even have a gym,"

Questions about governance are evident in promotion by FC 11 through endorsements from Football Federation Victoria, Penrith Panthers, NSW Cricket, Sydney Thunder and Sydney Sixers. Some of those entities are now owed significant debts by FC 11.

The Age notes that a  creditors report refers to investigation of whether  FC 11's directors had breached their fiduciary duties: "Our preliminary view is that the company may have been (insolvent) from around October 2016 and remained insolvent at all times to the date of our appointment on 9 February 2018".

Algorithmic Governance

'The ‘rule of law’ implications of data-driven decision-making: a techno-regulatory perspective' by Emre Bayamlıoğlu and Ronald Leenes in (2018) Law, Innovation and Technology comments
Techno-regulation is a prominent mechanism for regulating human behaviour. One type of techno-regulation concerns automated decision-making with legal effects. While automated decision-making (ADM) systems in the public domain have traditionally been based on conscious design of decisional norms, increasingly, Data Science methodologies are used to devise these norms. This data-driven approach causes frictions with the underlying principle of public-sector decision-making, namely adherence to the rule of law. In this paper we discuss three major challenges data-driven ADM poses to the Rule Law: law as a normative enterprise, law as a causative enterprise and law as a moral enterprise.
The authors argue
Since the industrialisation, we have witnessed an influx of novel artefacts, objects, and more recently automated systems that come to play a significant role in what we do, how we perceive and interpret the world, how we make our choices, and under what conditions. 
We see the emergence of ‘algorithmic authority’ as the legitimate power of ‘code’ to direct human action and also to impact which information is considered true. Issues surrounding (big) data analytics and automated decision-making (ADM), such as those touching on privacy and data protection, have been widely studied, but the enabling and restricting role of data-driven solutions as techno-regulatory orders have remained mostly unanalysed. 
Although studies on techno-regulation frequently analyse and characterise technology for its normativity, research theorising the regulatory relevance of Big Data analytics as a normative order in itself is much sparser. 
As the world of data has become the test bed for social sciences, economic innovation and state administration, the need for research explaining and framing the regulatory dimension of the data-driven practices is ever more critical. 
This article contributes to this venture. It departs from the premise that data-driven ADM processes, governed by complex algorithms, are either embodiments of existing normative orders, or they themselves enact ad hoc regulatory orders with or without a legal basis. In terms of regulatory constraints and capacities, data-driven ADM systems go much beyond existing legal decision-making based on codified legal norms. Although both types of systems (data-driven versus code-driven as Mireille Hildebrandt calls them) regulate human behaviour, their assessment from a rule of law perspective is different. In fact, data-driven ADM systems undermine the rule of law and hence, developers, lawyers and subjects of decisions by these systems should pay attention. 
The paper is organised as follows. First, in Section 2, we revisit techno-regulation as a mechanism to regulate human behaviour and describe how conscious implementation of norms is being augmented or replaced by norms derived from data analytics. Next, in Section 3, we discuss some shortcomings and effects of this turn towards data-driven ADM. Section 4 addresses the challenges that these shortcomings cause for the rule of law as the backbone of legal decision-making. Section 5 concludes the paper with some reflections and a call for action.
They conclude
 The pervasive employment of data-driven systems is indicative of our current and future dependence on technologies incorporating, articulating and amplifying computational and calculative rationalities – linking ends to means in novel and humanly unintelligible ways. 
Counting, calculating, accounting and eventually computing – a hectic obsession of modern humans – now has reached the point where we turn blind to almost anything that falls beyond or outside of our measuring capacity. The social complexity we live in dictates a paradigm where knowledge is limited without measurement.  This current prevailing understanding of data analytics and technology is rooted in the political philosophy of modern societies which is predicated upon a distinction between politics and science, according to which, while the former is supposedly based on values, the latter seeks for “objective truth”.  
The problem with the emerging data-driven epistemology is that the kind of knowing it suggests is not always what we aim for or desire if we want to maintain the rule of law, but simply what technology allows us. Or as David Berry put it: ‘subtractive methods of understanding reality (episteme) produce new knowledges and methods for the control of reality (techne)’.  
Data-driven processes increasingly re-embody norms within a form of an instrumentalized rationality. Data-driven instrumental reason converts each dilemma, conflict or antagonism, however material and fundamental, into a mere paradox which could be counteracted by the application of logic – substituting interests with the requirements of the technique and the normativity of law with the performativity of the algorithm. Big data constrains the possibilities for political and moral choices by reducing governance to a technical process of adaptation, and law to a process of optimisation – rendering politics a mere question of “better-doing”.  
If the rule of law is taken as a meta-principle which primarily presupposes an autonomous subject who could effectively reason against the norms and introduce a novel interpretation,  the type of law that the data-driven paradigm implements, leaves no room for effective contestation – but only rationalised logical and probabilistic reasoning. This results in an all or nothing approach which hardly complies with the principles of proportionality, subject autonomy, expediency and certainty. At some point, the binary nature of Turing computation and its logical consistency eliminates any discretionary power as a capacity of the legal system to import extraneous knowledge to produce answers to the ‘hard cases’.⁠ 
As the consequences of such formalisation of reason, our aims and values like justice, equality, happiness, solidarity and tolerance, which have been inherent in or sanctioned by reason since the Enlightenment, lose their intellectual ground. Although such values exist in the constitutions of the sovereign states, they lack any confirmation by reason or agency to link them to an objective reality.

Canadian Law Reform

'The Past, Present, and Future of Law Reform in Canada' by Marcus Moore in (2018) 6(2) The Theory and Practice of Legislation 225–261 comments 
The story of institutional law reform in Canada has been described by one veteran as ‘somewhat troubling.’ It is a story not without significant successes: In Québec civil law, the codifications were remarkable achievements which realised sweeping and highly-esteemed reforms. Among Canadian common law provinces, Ontario founded the Commonwealth’s first law reform commission in 1964, and as early as 1967 Alberta innovated the now internationally-influential joint venture design of its commission. Further, Canada’s original national commission was notable for its ambitious pursuit of social issues, and the second national commission challenged conventional legal paradigms at unparalleled depth. Across the country, many law commissions were established. Yet, what is ‘troubling’ is how many, including long-established and prominent commissions, were since closed or constrained, impeded from accomplishing what they might have. Meanwhile, in Québec civil law, the codifiers’ repeated calls for a permanent commission have gone unheeded. What does the future hold for institutional law reform in Canada? In Québec civil law, there are some signs of movement towards reform continuity. An important question will be whether processes of continuous incremental reform can be developed and managed to alleviate reliance on overwhelming legal overhauls. Elsewhere in Canada, a few Canadian provinces that shuttered commissions have since re-established them in altered forms. The common themes of austerity, ideology, and alleged redundancy in the downfall of past Canadian commissions remain an ever present concern to the survivors, as they simultaneously confront newly emerging challenges. Time will tell whether, because of their experience in reforming themselves in response to their troubling story to date, Canada’s law commissions may be best-positioned to meet institutional law reform’s challenges of the future.


The ACCC in a speech to the National Franchise Convention Legal Symposium has argued - unsurprisingly and persuasively - that
Franchising Code of Conduct needs strengthening to better protect franchisees, including significantly increased penalties for breaches, and requiring improved and more meaningful information disclosure to franchisees. These changes, in combination with stronger unfair contract terms (UCT) law, would help to improve the operations of franchise businesses in Australia. 
ACCC Deputy Chair Keogh commented that
Both the Franchising and Oil Codes, which applies to service stations, are not as effective as they could be. 
We want to see the Franchising Code strengthened, and supported by stronger penalty provisions, to ensure franchise systems operate well for all parties involved, to encourage compliance with franchise agreements, and to keep competition on an even keel. 
It is in the interests of all involved in the sector to have a clear understanding of what is required by law, so that businesses focus on becoming more competitive and growing market share, rather than being tempted to take shortcuts that will ultimately damage the business, but also the reputation of the franchise sector as a whole.
Keogh noted that  the Franchise Council of Australia is recommending franchise systems be registered on a public register but suggested that this may create the perception that information provided by franchisors has been audited and verified, or ‘accredited’, and would result in fewer potential franchisees doing their due diligence. 

Keogh also highlighted concerns regarding B2B UCT laws:
The biggest limitation within the current legislation is that unfair contract terms are not illegal. The worst that can happen under the law is that unfair terms are subject to legal challenge, the Court declares them to be unfair and effectively strikes them out of the contract. But a business does not face a penalty for including them in the first place.
So, lacking a legal impediment, and without fear of financial penalties, businesses have an incentive to include potentially unfair terms in their contracts. We want to see this changed to more adequately protect small businesses, including franchisees