02 March 2019

University Data Governance

Data Governance and the Emerging University' by Michael J. Madison inJacob H. Rooksby (ed) Research Handbook on Intellectual Property and Technology Transfer (Edward Elgar, Forthcoming) comments 
Knowledge and information governance questions are tractable primarily in institutional terms, rather than in terms of abstractions such as knowledge itself or individual or social interests. This chapter offers the modern research university as an example. Practices of data-intensive research by university-based researchers, sometimes reduced to the popular phrase “Big Data,” pose governance challenges for the university. The chapter situates those challenges in the traditional understanding of the university as an institution for understanding forms and flows of knowledge. At a broad level, the chapter argues that the new salience of data exposes emerging shifts in the social, cultural, and economic identities of the university, from missions defined in terms of knowledge as such to missions now defined in terms of data and evidence. University-based knowledge production practices framed by the distinction between basic research and “technology transfer” may no longer be sufficient as a comprehensive rhetorical and institutional paradigm for aligning the university with broad social goals or with intellectual property and information law and policy. The concept of the data-intensive university offers a general outline of a new paradigm.

Payments, innovation and Incentives

Payment Transactions Under the EU Second Payment Services Directive (PSD2) – An Outsider’s View' by Benjamin Geva in (2018) Texas International Law Journal comments 
In its proposal for a Directive on payment services in the internal market (hereafter: the Proposal), the Commission of the European Communities (“the Commission”) purported to provide for “a harmonised legal framework” designed to create “a Single Payment Market where improved economies of scale and competition would help to reduce cost of the payment system.” Being “complemented by industry’s initiative for a Single Euro Payment Area (SEPA) aimed at integrating national payment infrastructures and payment products for the euro-zone,” the Proposal was designed to “establish a common framework for the Community payments market creating the conditions for integration and rationalisation of national payment systems.” Focusing on electronic payments, and designed to “leave maximum room for self-regulation of industry,” the Proposal purported to “only harmonise what is necessary to overcome legal barriers to a Single Market, avoiding regulating issues which would go beyond this matter.” Stated otherwise, the measure was designed to fall short of providing for a comprehensive payment law.
'Jefferson's Taper' by Jeremy N. Sheff comments 
This Article reports a new discovery concerning the intellectual genealogy of one of American intellectual property law’s most important texts. The text is Thomas Jefferson’s often-cited letter to Isaac McPherson regarding the absence of a natural right of property in inventions, metaphorically illustrated by a “taper” that spreads light from one person to another without diminishing the light at its source. I demonstrate that Thomas Jefferson likely copied this Parable of the Taper from a nearly identical passage in Cicero’s De Officiis, and I show how this borrowing situates Jefferson’s thoughts on intellectual property firmly within a natural law theory that others have cited as inconsistent with Jefferson’s views. I further demonstrate how that natural law theory rests on a pre-Enlightenment Classical Tradition of distributive justice in which distribution of resources is a matter of private judgment guided by a principle of proportionality to the merit of the recipient — a view that is at odds with the post-Enlightenment Modern Tradition of distributive justice as a collective social obligation that proceeds from an initial assumption of human equality. Jefferson’s lifetime correlates with the historical pivot in the intellectual history of the West from the Classical Tradition to the Modern Tradition, but modern readings of the Parable of the Taper, being grounded in the Modern Tradition, ignore this historical context. Such readings cast Jefferson as a proto-utilitarian at odds with his Lockean contemporaries, who supposedly recognized property as a pre-political right. I argue that, to the contrary, Jefferson’s Taper should be read from the viewpoint of the Classical Tradition, in which case it not only fits comfortably within a natural law framework, but points the way toward a novel natural-law-based argument that inventors and other knowledge-creators actually have moral duties to share their knowledge with their fellow human beings.
'Unfair Disruption' (Stanford Law and Economics Olin Working Paper No. 532) by Mark A. Lemley and Mark P. McKenna comments
New technologies disrupt existing industries. They always have, and they probably always will. Incumbents don’t like their industries to be disrupted. And they often rely on intellectual property (IP), unfair competition, or related legal doctrines as tools to prevent disruptive entry. What that means is that many of the cases in these areas are really about whether competition from new players can force incumbents to change their business models, generally to the advantage of particular players and the detriment of others. These cases are, in an important sense, all unfair competition cases; they are about the ways in which the law permits new entrants to compete with incumbents.
Unfortunately, we lack any comprehensive way of thinking about market disruption in these settings. As a result, courts react quite differently to disruptive technology or business models in different cases. As one example, consider intellectual property (IP) cases brought against new technologies. Sometimes courts find the disruptive technology to infringe existing IP rights. New technology might fit within the legal definition of a prior invention, appropriately construed. Sometimes the technology might not itself infringe any prior invention, but makes it easier for third parties to infringe IP rights and is deemed illegal for that reason.
Other areas of law reflect similarly mixed feelings about market disruption. Business tort claims like unjust enrichment—and even nominally procompetitive laws like antitrust—are often asserted by companies with a vested interest in restricting a competitor’s new technology. We have seen similar variability in antitrust, unfair competition, and business tort cases. Antitrust and unfair competition cases are brought against incumbents that try to prevent competition, but they are also brought by incumbents upset that their markets are being disrupted. Whether those laws encourage or inhibit market disruption depends critically on what kinds of competition courts deem “unfair.”
Our goal in this paper is to address the broader question of when competition by market disruption is “unfair.” In our view, courts are often overly receptive to market disruption arguments because they tend to be concerned about upsetting the status quo and affecting the settled expectations of market players, particularly when presented with arguments that some new technology will radically alter the industry.
Courts should intervene to prevent market disruption only when they have very good reasons—reasons connected to the fundamental policy concerns of the legal systems called upon to prevent the disruption. To achieve that goal, we must know what the legitimate ends of the asserted law are. Sometimes the legal doctrine used to prevent market disruption is one like unjust enrichment, interference with economic advantage, or unfair competition that doesn’t have a clear animating principle. We think those doctrines should be disfavored, and courts should employ them only when they are tied to some independent metric for deciding whether the defendant’s conduct is unfair or unjust. Other doctrines, like antitrust and IP, have clearer purposes. There, we can evaluate legal challenges to market disruption by testing the fit between the goals of the statute and its use in a particular case.
Courts in many types of cases have recognized this problem and begun to develop tools for dealing with them. But IP law has lagged behind, rarely even recognizing that what seem to be cases of infringement are really challenges to market disruption. We suggest a test that helps separate legitimate cases of IP infringement from cases of pure market disruption. Drawn from the antitrust injury doctrine, our test would treat market disruption as relevant to an IP case only if the disruption is traceable to the act of infringement itself. If the plaintiff would suffer the same injury from a market intervention that is not infringing, that injury cannot be evidence of IP infringement.

Defamation Model Provisions

The Council of Attorneys-General (formerly SCAG) has released its 43 page  Review of Model Defamation Provisions discussion paper.  The paper reflects the Council's agreement in June last year  to reconvene its Defamation Working Party to consider whether the policy objectives of the Model Defamation Provisions remain valid and whether the provisions remain appropriate to achieve these objectives.

The paper states
The Defamation Working Party (DWP) is comprised of one nominated representative from each Australian state and territory jurisdiction and established under the auspices of the Council of Attorneys General (CAG). The DWP is to be chaired by a representative from the New South Wales (NSW) Department of Justice. NSW will also be represented by its Solicitor General. All other jurisdictions will have one nominated representative. 
The DWP will consider whether the policy objectives of the Model Defamation Provisions (MDPs) remain valid and whether the MDPs remain appropriate to achieve these objectives. The objectives of the MDPs are stipulated in section 3 and are as follows:
(a) to enact provisions to promote uniform laws of defamation in Australia; 
(b) to ensure that the law of defamation does not place unreasonable limits on freedom of expression and, in particular, on the publication and discussion of matters of public interest and importance; 
(c) to provide effective and fair remedies for persons whose reputations are harmed by the publication of defamatory matter; and 
(d) to promote speedy and non-litigious methods of resolving disputes about the publication of defamatory matter. 
In considering the above, the DWP will have reference to the following:
(a) the recommendations and findings of the June 2018 statutory review of the Defamation Act 2005 (NSW); 
(b) any proposals for reform tabled by individual members of the DWP; 
(c) relevant developments in case law in Australian jurisdictions and internationally; 
(d) relevant developments in technology since the commencement of the MDPs; and (e) any other relevant matters. 
The DWP will make recommendations to CAG for any reforms to the MDPs it considers necessary and report on progress to each CAG meeting. Each State and Territory in Australia has substantially uniform defamation law. The Model Defamation Provisions were endorsed by the former Standing Committee of Attorneys-General in November 2004 and each state and territory enacted legislation to implement them, collectively referred to as the National Uniform Defamation Law. The Model Defamation Provisions are available on the Australasian Parliamentary Counsel’s Committee website at www.pcc.gov.au.
The paper features the following questions
Question 1 Do the policy objectives of the Model Defamation Provisions remain valid? 
Question 2 Should the Model Defamation Provisions be amended to broaden or to narrow the right of corporations to sue for defamation? 
Question 3 (a) Should the Model Defamation Provisions be amended to include a ‘single publication rule’? (b) If the single publication rule is supported: (i) should the time limit that operates in relation to the first publication of the matter be the same as the limitation period for all defamation claims? (ii) should the rule apply to online publications only? (iii) should the rule should operate only in relation to the same publisher, similar to section 8 (single publication rule) of the Defamation Act 2013 (UK)? 
Question 4 (a) Should the Model Defamation Provisions be amended to clarify how clauses 14 (when offer to make amends may be made) and 18 (effect of failure to accept reasonable offer to make amends) interact, and, particularly, how the requirement that an offer be made ‘as soon as practicable’ under clause 18 should be applied? (b) Should the Model Defamation Provisions be amended to clarify clause 18(1)(b) and how long an offer of amends remains open in order for it to be able to be relied upon as a defence, and if so, how? (c) Should the Model Defamation Provisions be amended to clarify that the withdrawal of an offer to make amends by the offeror is not the only way to terminate an offer to make amends, that it may also be terminated by being rejected by the plaintiff, either expressly or impliedly (for example, by making a counter offer or commencing proceedings), and that this does not deny a defendant a defence under clause 18? 
Question 5 Should a jury be required to return a verdict on all other matters before determining whether an offer to make amends defence is established, having regard to issues of fairness and trial efficiency? 
Question 6 Should amendments be made to the offer to make amends provisions in the Model Defamation Provisions to: (a) require that a concerns notice specify where the matter in question was published? (b) clarify that clause 15(1)(d) (an offer to make amends must include an offer to publish a reasonable correction) does not require an apology? (c) provide for indemnity costs to be awarded in a defendant’s favour where the plaintiff issues proceedings before the expiration of any period of time in which an offer to make amends may be made, in the event the court subsequently finds that an offer of amends made to the plaintiff after proceedings were commenced was reasonable? 
Question 7 Should clause 21 (election for defamation proceedings to be tried by jury) be amended to clarify that the court may dispense with a jury on application by the opposing party, or on its own motion, where the court considers that to do so would be in the interests of justice (which may include case management considerations)? 
Question 8 Should the Federal Court of Australia Act 1976 (Cth) be amended to provide for jury trials in the Federal Court in defamation actions unless that court dispenses with a jury for the reasons set out in clause 21(3) of the Model Defamation Provisions – depending on the answer to question 7 – on an application by the opposing party or on its own motion? 
Question 9 Should clause 26 (defence of contextual truth) be amended to be closer to section 16 (defence of contextual truth) of the (now repealed) Defamation Act 1974 (NSW), to ensure the clause applies as intended?  
Question 10 (a) Should the Model Defamation Provisions be amended to provide greater protection to peer reviewed statements published in an academic or scientific journal, and to fair reports of proceedings at a press conference? (a) If so, what is the preferred approach to amendments to achieve this aim – for example, should provisions similar to those in the Defamation Act 2013 (UK) be adopted? 
Question 11 (a) Should the ‘reasonableness test’ in clause 30 of the Model Defamation Provisions (defence of qualified privileged for provision of certain information) be amended? (b) Should the existing threshold to establish the defence be lowered? (c) Should the UK approach to the defence be adopted in Australia? (d) Should the defence clarify, in proceedings where a jury has been empanelled, what, if any, aspects of the defence of statutory qualified privilege are to be determined by the jury? 
Question 12 Should the statutory defence of honest opinion be amended in relation to contextual material relating to the proper basis of the opinion, in particular, to better articulate if and how that defence applies to digital publications? 
Question 13 Should clause 31(4)(b) of the Model Defamation Provisions (employer’s defence of honest opinion in context of publication by employee or agent is defeated if defendant did not believe opinion was honestly held by the employee or agent at time of publication) be amended to reduce potential for journalists to be sued personally or jointly with their employers? 
Question 14 (a) Should a ‘serious harm’ or other threshold test be introduced into the Model Defamation Provisions, similar to the test in section 1 (serious harm) of the Defamation Act 2013 (UK)? (b) If a serious harm test is supported: (i) should proportionality and other case management considerations be incorporated into the serious harm test? (ii) should the defence of triviality be retained or abolished if a serious harm test is introduced? 
Question 15 (a) Does the innocent dissemination defence require amendment to better reflect the operation of Internet Service Providers, Internet Content Hosts, social media, search engines, and other digital content aggregators as publishers? (b) Are existing protections for digital publishers sufficient? (c) Would a specific ‘safe harbour’ provision be beneficial and consistent with the overall objectives of the Model Defamation Provisions? (d) Are clear ‘takedown’ procedures for digital publishers necessary, and, if so, how should any such provisions be expressed? 
Question 16 (a) Should clause 35 be amended to clarify whether it fixes the top end of a range of damages that may be awarded, or whether it operates as a cut-off? (b) Should clause 35(2) be amended to clarify whether or not the cap for noneconomic damages is applicable once the court is satisfied that aggravated damages are appropriate? 
Question 17 (a) Should the interaction between Model Defamation Provisions clauses 35 (damages for non-economic loss limited) and 23 (leave required for further proceedings in relation to publication of same defamatory matter) be clarified? (b) Is further legislative guidance required on the circumstances in which the consolidation of separate defamation proceedings will or will not be appropriate? (c) Should the statutory cap on damages contained in Model Defamation Provisions clause 35 apply to each cause of action rather than each ‘defamation proceedings’? 
Question 18 Are there any other issues relating to defamation law that should be considered?

01 March 2019

Practitioner Behaviour

What are our expectations regarding legal practice? In Benhayon v Rockett (No 9) [2019] NSWSC 172 - litigation regarding cult figure Serge Benhayon - the NSWSC has commented as [24] through [35]
It is evident that the plaintiff was in a superior financial position to that of the defendant. There was direct evidence of significant wealth amassed by the plaintiff, and, under his control, significant wealth derived from Universal Medicine activities. The solicitor for the plaintiff was made aware early in the proceedings that the defendant did not have financial resources available to her and that she was, soon after the proceedings commenced, bankrupt. Her resources were obviously very limited. During long periods of the litigation she did not have a solicitor acting for her, so correspondence had to be conducted directly between the lawyers at Universal Law and the defendant herself.
It is in this context that a number of matters were raised in the affidavits tendered in support of the application for indemnity costs, and in the submissions seeking indemnity costs made by Mr Molomby SC on behalf of the defendant.
There were three broad areas of conduct identified by Mr Molomby SC as conduct I should consider relevant to s 40(1). The first was a request made by Universal Law that the defendant, without the assistance of a solicitor, produce 238 categories of documents for discovery within a 14 day period. This is a remarkably short period of time given the number of categories of documents sought and the logistics of preparing, collating and making the documents available even if the defendant had the resources of a solicitor to assist. A courteous request for extension of time was refused, followed by a threat to approach the court to seek orders and costs. This was, at best, an unreasonable and discourteous approach.
Second, an 85 page list of documents was provided to the defendant as material responsive to categories for discovery. Obviously such a list contained thousands of documents. Despite repeated requests, Universal Law refused to identify by labelling, which document corresponded to which description in the list. The defendant had to instead undertake the labelling of every document herself manually.
Whilst this conduct is unhelpful and bordering on obstructive, it did not in my view amount to conduct that caused undue delay or distraction away from early resolution of the proceedings. It seems by this stage, the parties were appropriately pursuing elucidation of each other’s cases and associated interlocutory disputes and arguments were not, in that context, out of place.
Third, and far more troubling in terms of approach and content of correspondence, is the conduct of Universal Law in correspondence sent at the time of the illness and death of the defendant’s father in late 2017. The defendant notified Universal Law, in the context of needing to complete a litigation task, that her father was seriously ill. She requested that her father’s condition be kept confidential. The response from Universal Law stated: “It is not open to you unilaterally to impose upon or enforce against our clients and our firm, a gag on the disclosure of information contained in your emails…Our client’s future use of the information (if any) is a matter for our clients…”
This was followed by what was submitted by Mr Molomby SC to be the culmination of oppressive behaviour. On the day of the defendant’s father funeral, a date which had been notified to Universal Law by a polite and low-key request that correspondence in relation to the litigation could avoid that date “out of respect for my family”, a 31 page letter was emailed at 3.59pm directly to the defendant by Universal Law. The defendant had no solicitor on the record for her at this time.
Whilst it is important to place the letter in context, namely an active and ongoing dispute about discovery of documents, the tone of the letter is unnecessarily peremptory and demeaning. There was no order or compulsion requiring the letter be sent that day. The choice of date seems to have been deliberate. Most concerningly, the letter contains a number of personal insults, directed to the defendant, about her character, professionalism, motivation and probity. For obvious reasons I will not repeat them. They appear in multiple places in the letter, including pages 1, 7, 8 and 13.
They are at best, unprofessional and most discourteous. They are at worst, bullying and harassment, deliberately deployed at a time when the defendant is likely to be distracted, sad and vulnerable, with the aim of demoralising her about the litigation she was defending.
There is no place for any such personal remarks and insults in any professional correspondence in legal proceedings. Solicitors have ethical duties and obligations. In that part of the Australian Solicitors’ Conduct Rules dealing with “Fundamental Duties of Solicitors”, a number of ethical duties are stated, including that a solicitor must: 4.1.2 be honest and courteous in all dealings in the course of legal practice; … 4.1.4 avoid any compromise to their integrity and professional independence; and 4.1.5 comply with these Rules and the law.
The timing and circumstances of the correspondence, including these personal insults, as well as the way in which they were phrased, suggests that the solicitor who authored them had a lack of independence from, or objectivity about, the litigation.
I do not know if Universal Law has any affiliation with Universal Medicine. It may well be a coincidence that their names are similar. The motto of Universal Law is “integritate et luce” which translates from the Latin to “integrity and light”. These precise words, or an English incantation of them, do not appear in any obvious logo or in the work of Universal Medicine to the extent that I can discern. Regardless of this, there may well be a public perception that somehow Universal Law has an affiliation or direct association with Universal Medicine. Whilst Universal Medicine was not a named party to these proceedings, it was entirely evident from the beginning that the plaintiff’s paramount role in Universal Medicine and its activities was a matter that would be the subject of considerable evidence in the proceedings.
My concerns regarding, in particular, this piece of correspondence, emailed to the defendant on the day of her father’s funeral, has led me to the view that I should take submissions from the parties as to whether I should make a referral of the author of the letter to the Office of the Legal Services Commissioner for investigation for breach of professional conduct requirements.

Personhood and Simian Copyright

'Why A Monkey's Action of taking a Selfie should expand the definition of Author in the Copyright Act' by David Schneider in (2018) 34(4) Touro Law Review 1350 comments
In 2011, wildlife photographer David Slater set up a camera on an island in Indonesia and hoped to capture a picture of the Celebes Crested Macaque, an endangered monkey species indigenous to Indonesia.  Naruto, a six-year old Celebes Crested Macaque, came upon Slater’s camera and took multiple pictures of himself.  Naruto, considered “highly intelligent,” familiarized himself with the operation of the camera by observing humans who used the camera. Multiple parties, including the parties who filed a lawsuit on Naruto’s behalf, claimed copyright to one particular photograph, informally known as the “Monkey Selfie.” Subsequently, the People for the Ethical Treatment of Animals (hereinafter “PETA”) and Antje Engelhardt filed a complaint against Slater in the United States District Court for the Northern District of California alleging that Slater infringed Naruto’s copyright in the photograph.  The court granted Slater’s motion to dismiss because “the Copyright Act [did] not confer standing upon animals like Naruto.”  
The Copyright Act (hereinafter “the Act”) does not specifically define who is protected by copyright.7 Rather, the Act broadly states that “[c]opyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression.”  Congress enacted the Copyright Act of 1976 to preserve and promote artistic creations by giving legal recourse to those whose work is copied and exploited. Although the Act does not specifically identify those entitled to copyright protection, based on a combination of case law precedent and the United States Copyright Office’s interpretation of the Act, courts have refused to recognize that higher intelligence animals, such as monkeys, can create original works of authorship fixed in tangible media of expression, such as photographs. However, such interpretation of the Act directly conflicts with Congress’s overall intent when it implemented the copyright system in the United States. 
Animals can create new works of art, which should be protected by copyright to prevent humans from exploiting them for personal profit. Because of the combination of ever-increasing public interest in protecting animals and their rights with scientific discoveries based on the intelligence of animals, animals should be afforded similar protections in copyright as humans. Courts should expand the definition of “works of authorship” to include works created by higher intelligence animals, such as monkeys, dolphins, pigs, crows, raccoons, and elephants, who have demonstrated that they can communicate with humans in some form or another and understand human technology. 
Part II of this Note introduces the case Naruto v. Slater, which PETA and Engelhardt brought in the Northern District of California on behalf of Naruto. This Part also discusses the subsequent history of the case, which includes an appeal and settlement. Part III examines the Copyright Act of 1976 and analyzes Congress’s intent when it enacted the statute. This Part also explains why courts should interpret the statute to protect original works of authorship in animals. Part IV argues that courts should disregard the Copyright Compendium’s interpretation that an author needs to be a human being. Part V discusses the Northern District of California’s flawed reasoning in Naruto. Part VI discusses recommendations for courts to use in the future when dealing with similar animal rights issues. Part VII evaluates the Copyright Act and provides examples where the Act itself provides protections for animals. Finally, Part VIII concludes that animals should be permitted to bring copyright infringement lawsuits because they can create original works of authorship.

27 February 2019

Hatecrime, Speech and Gender

The 114 page Interim Report by the NSW Legislative Council's Standing Committee on Social Issues regarding Gay and Transgender hate crimes between 1970 and 2010 comments
This inquiry marks the first parliamentary examination of a distressing time in our history for the lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) community. It has sought to understand the LGBTIQ experience of hate crime and, in doing so, has given the opportunity for the stories of victims and their families to be told – often stories of brutality, tragedy and injustice. The committee was deeply moved by these stories but also encouraged by the strength and resilience of those telling them. For many decades, pervasive prejudices against LGBTIQ people ran deeply in society. Even with legislative change following the decriminalisation of homosexuality in 1984, bias attitudes were still being perpetuated within the broader community with a legacy that is still keenly experienced today. The ensuing violence and crime against gay and transgender people, particularly in the 1970s, 1980s and 1990s, was shocking, abhorrent and all too common. Amidst this stood a NSW Police Force and a broader criminal justice system with a culture influenced by the social values of the time.
Over the course of this inquiry, the committee came to hear the experiences of those who lived through that time, and received evidence exploring the barriers to justice for victims. Drawing from this evidence, the committee makes the first of two key findings – that the prevailing acceptance of and indifference towards violence and hostility directed at gay men, principally during the period prior to the mid-1990s, impacted on the protection of and delivery of justice to victims of hate crime.
The committee's second finding relates to the responsibility of the NSW Police Force to ensure that all its interactions with the public, including the LGBTIQ community, are conducted with both respect and professionalism. During the inquiry, the committee learnt that, while historic attitudes to gay and transgender people influenced the way in which victims of hate crime were treated and their cases investigated, time has brought about significant change in the way the LGBTIQ community is now engaged and regarded, especially within the criminal justice system. In particular, the committee is aware that great efforts have been made by the police to bridge the gap that once existed with the LGBTIQ community, in recognition of its responsibility to treat all people with professionalism and respect. We also acknowledge that there is still more work to do improving the relationship between the police and the LGBTIQ community.
There are many more stories to be told about the LGBTIQ experience of hate crime, such that as we began to hear from victims, their families, advocates and others during this inquiry, it became very clear that we would not have sufficient time to thoroughly examine all aspects of the terms of reference. Granted that historic cases of gay hate crime should be revisited, what is the most appropriate mechanism for this review? Are LGBTIQ hate crimes being reported today and if not, why not? What of the underreported experiences of trans people and young LGBTIQ people, among the most vulnerable of our community? Are there contemporary bias crimes that we need to consider? What of the experiences of the LGBTIQ community in rural and regional New South Wales? These are just some of many questions that require further exploration. To this end, the committee makes the principal recommendation that the NSW Legislative Council re-establish this inquiry in the 57th Parliament.
The committee also makes other recommendations in support of this principal recommendation as well as its key findings, including that the NSW Police Force ensure that all officers have the skills and knowledge to engage with LGBTIQ people respectfully and equally.
Many individuals and organisations have worked with passion and perseverance over the years in the pursuit of justice for victims of LGBTIQ hate crime and their families. It is always fraught to single out individuals or organisations for praise. However I particularly draw attention to ACON and their community advocacy and leadership producing the historic report In Pursuit of Truth and Justice, which strongly informed this inquiry. I also acknowledge Mr Steve Page as a serving police officer in the early 2000s who connected the pattern of gay hate murders in the eastern suburbs, triggering a coroner's report that overturned former findings of suicide or misadventure. In doing this he precipitated a culture change in the NSW Police Force and provided much needed emotional closure for many of the family and friends of the gay hate crime victims.
The committee's Findings are
1  That a prevailing acceptance of and indifference towards violence and hostility directed at gay men principally during the period prior to the mid-1990s impacted on the protection of and delivery of justice to victims of hate crime, including but not limited to Mr Alan Rosendale, Mr Scott Johnson, Mr John Russell and Mr Ross Warren. 
2 That the NSW Police Force is responsible for ensuring that all interactions by police with the general public and the lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) community is done with both respect and professionalism. These are, and continue to be, key priorities for the NSW Police Force.
The  Recommendations are
R 1 - That the NSW Legislative Council re-establish the inquiry into Gay and Transgender hate crimes between 1970 and 2010 in the 57th Parliament and the terms of reference for further inquiry and report be subject to a decision of the House. 
R 2  - That all evidence received and records produced by the Standing Committee on Social Issues during its inquiry into Gay and Transgender hate crimes between 1970 and 2010 in the 56th Parliament, be made available to the Standing Committee on Social Issues for further inquiry and report in the 57th Parliament. 
R 3 - That the NSW Police Force ensure that all officers have the skills and knowledge to engage with lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) people respectfully and equally. 
R 4 - That, should the inquiry be re-established consistent with Recommendation 1, the committee invite witnesses to address the issue of the appropriate mechanism for independent review of past gay and transgender hate crimes. 
‘Harming women with words: The failure of Australian law to prohibit gendered hate speech’ by Tanya D'Souza, Laura Griffin, Nicole Shackleton, and Danielle Walt in (2018) 41 University of New South Wales Law Journal 939 comments
In Australia, gendered hate speech against women is so pervasive and insidious that it is a normalised feature of everyday public discourse. It is often aimed at silencing women, and hindering their ability to participate effectively in civil society. As governmental bodies have recognised, sexist and misogynist language perpetuates gender-based violence by contributing to strict gender norms and constructing women as legitimate objects of hostility. Thus, gendered hate speech, like other forms of hate speech, produces a range of harms which ripple out beyond the targeted individual. The harmful nature of vilification is recognised by the various Australian laws which prohibit or address other forms of hate speech. But as we map out in this article, gendered hate speech is glaringly absent from most of this legislation. We argue that by failing to address gendered hate speech, Australian law permits the marginalisation of women and girls, and actively exacerbates their vulnerability to exclusion and gender-based harm. 
 The authors argue
Since the shock victory of Donald Trump in the 2016 United States presidential election, western nations like Australia have witnessed a renewal of grassroots feminist activism, as movements such as #MeToo and #TimesUp continue to unfold across social media platforms and other public spaces. Accompanying such movements has been vehement backlash by conservative voices, sometimes from unlikely quarters. Gender roles and relations are not only the topic under debate – they also form the terrain upon which these discussions and struggles are playing out. The same can be said of language: the current shifts in cultural dynamics involve a contest over whose voices will be heard, and whose shut down. Hateful speech has become a key weapon in this struggle. 
It is in this context that we focus on the issue of gendered hate speech (‘GHS’), canvassing possible definitions, as well as analysing its effects, its legal status, and its implications. Current approaches to defining and regulating hate speech in Australian laws indicate possible definitions of GHS. In particular, we examine how GHS could be defined broadly (progressively) or narrowly (conservatively), reflecting a focus on either the victim and their experience, or on broader public interests and security. Prohibiting GHS according to current laws on vilification would likely reflect a more conservative approach, and even prohibiting ‘offensive behaviour’ rather than vilification may still be interpreted according to concerns for the public interest. This would be problematic in various ways, given that it does not address the harm to and perspective of the targeted individual, but would nonetheless represent a marked improvement over current absent or inconsistent laws. 
We argue that GHS is best understood in its broader socio-political context, as a means by which patriarchal structures and norms are enforced through the policing of women’s presence and their behaviour. GHS also produces a range of troubling effects, not only on the individuals who are targeted, but on broader social groups and dynamics. As government bodies and scholars alike have confirmed, GHS can be seen as fuelling gender-based violence in Australia, through the perpetuation of gender prejudice and hostility. 
Despite these harms, GHS is alarmingly under-regulated in Australia. An overview of Australian laws relating to vilification, offensive behaviour and the urging of violence on the basis of identity, exposes the glaring absence of any laws relating to hateful speech or speech inciting violence on the basis of gender in almost all Australian jurisdictions. In contrast, sex and gender (or gender identity) are recognised as important aspects of identity or categories of group membership deserving of protective measures in Australian laws relating to discrimination. But such anti-discrimination laws do not apply to individual verbal attacks. 
By failing to legislate against GHS in any meaningful or systematic way, Australian law can be seen as complicit in the persistence of GHS, and by extension, gender-based violence. This is one of the key ways in which our legal system produces women’s vulnerability. We explain how a vulnerability analysis takes us beyond the standard arguments about the harms of hate crime. Crucially, it also helps to show why legislating against GHS would not simply be a protective, paternalistic form of state intervention, but one which can support women’s agency, especially their discursive and political agency in public spaces. 
Before proceeding, two things are worth noting. The first is to acknowledge that there are other reasons to find statements that comprise GHS troubling. For instance, the speech may constitute family/intimate partner violence, verbal abuse and/or controlling and coercive behaviour. Likewise, conduct involving GHS may overlap with other areas of law, such as harassment or assault. Although we do not discuss these other areas of law or reasons for concern, we are conscious of them. But our focus in this article is specifically on the nature of GHS as hate speech and its place in Australian laws as such. 
Second, we acknowledge the ways in which ‘proposals to regulate hate speech invariably end up citing such speech at length’, and that the recirculation of such speech ‘inevitably reproduces trauma as well’. However, avoiding such repetition at all costs can also be counter-productive, as ‘[k]eeping such terms unsaid and unsayable can also work to lock them in place, preserving their power to injure’. Troubled by the ways in which scholarly and other literature sometimes include instances of hate speech seemingly for shock value as much as for pedagogical or analytical purposes, we have chosen to repeat GHS sparingly rather than gratuitously in this article. We also warn readers that in some places where examples are provided, the content may cause offence.

24 February 2019


'A Criminology of Extinction: Biodiversity, extreme consumption and the vanity of species resurrection' by Avi Brisman and Nigel South in European Journal of Criminology (forthcoming) comments
This article explores an issue pertaining to the commodification of nature and related market processes—reviving extinct species. It begins by offering an overview of the aesthetic, economic, scientific and ethical reasons to preserve biological diversity. The article then considers how and why biological diversity is actually being reduced at an unprecedented rate—the ways in which, and the explanations for why, human acts and omissions are directly and indirectly, separately and synergistically, causing extinctions— quite possibly of species that we do not even know exist. From here, the article draws on the growing body of research on resurrecting species — a process known as de-extinction — to contemplate the questions raised about the permanency of extinction, as well as whether we should revive extinct species and the meaning and criminological implications of doing so. 
The authors comment
Significant international work in recent years has drawn attention to “animal abuse,” “wildlife crime” and, more broadly, harms and crimes affecting non-human species (Bayrachnaya et al., 2018; Beirne, 1995, 1997, 1999, 2009, 2014; Gibbs et al., 2010; Maher and Sollund, 2016; Maher et al., 2016; Moreto, 2018; Nurse, 2013, 2015; Pires and Clarke, 2011; Sollund 2011, 2013a, 2013b, 2015; Wyatt, 2013). In some respects, this work has been pioneering. In other ways, it builds on the past work of others and serves as a reminder of the historical complexity of human-non-human relations. Bryant (1979:412) made an early call for the study of “zoological crime”—a term coined to refer to the violation of “animal related social norms . . . [that] may well be among the most ubiquitous of any social deviancy.” Beirne’s (1995) essay, some sixteen years later, was, in part, a frustrated reaction to the failure to respond to Bryant’s proposal. Although Beirne (1995:5) acknowledged that “the field of crimes against animals does not yet constitute a recognized, let alone a coherent, object of study,” he maintained that it would be inaccurate to state that “animals are never present in criminological discourse,” and he noted the wide range of materials involving animals as central figures in relation to “inter alia, the configuration of rural class relations in 18th-century England, the alleged links between crime and human nature, and the behavioral manifestations of children who are likely to be violent as adults.” For example, the American scholar and linguist E.P. Evans (1906/1987) had documented the role nonhuman animals play in human society in The Criminal Prosecution and Capital Punishment of Animals, while historians such as E.P. Thompson, Linebaugh and others outlined the importance of wildlife in terms of property law, moral economies, class oppression, and social and environmental transformation (Hay, 1975; Linebaugh, 1976; Thompson, 1975). Game laws and poaching/anti-poaching activities and initiatives reflect centuries of human relationships with nature, as have measures aimed at balancing conservation, culling, hunting for sport, and killing for food. Many sociological studies of deviance and leisure have produced descriptive accounts of the recreational pursuit of wildlife, abuse of animals, and breaking of wildlife protection laws (Eliason, 2003; Nurse, 2013).
Hence, although Moreto and colleagues (2015:360) may in general be correct that law enforcement and criminal justice systems have accorded wildlife offences a “low priority when compared to other crimes (Cook et al. 2002),” this is not to suggest they have been ignored completely or have not been regarded as important.
Criminological attention to poaching, trafficking and related animal abuse is now substantial, and encompasses contributions aimed at market reduction and enhancing conservation efforts (e.g., Lee et al., 2014; Schneider, 2008; Shepherd, 2017). While all of this represents a welcome shift, attention to the dynamics of the illegal market for a particular species or the investigation of the scope, extent, and geographical range of the international trade in specific wildlife as live bodies or as harvested “parts and products” has overshadowed—and has perhaps come at the expense of—broader criminological considerations of “biological diversity” (or “biodiversity”) loss, decline and extinction, of which wildlife crime is but one cause (see, e.g., http://www.cnn.com/interactive/2016/12/specials/vanishing/).
In 2016, the World Wildlife Fund for Nature’s Living Planet Report (WWF, 2016: 4) noted that for some decades, “scientists have been warning that human actions are pushing life toward a sixth mass extinction” (see also Kolbert, 2014; Mirzoeff, 2014:227 (citing Novoacek 2007)). The data from the Living Planet Index—which offers an indication of the state of global biological diversity, based on trends in the populations of vertebrate species from around the world—show that between 1970 and 2012, the planet experienced a “58 per cent overall decline in vertebrate population abundance” with populations of vertebrate species falling, on average, “by more than half in little more than 40 years … an average annual decline of 2 per cent,” with “no sign yet that this rate will decrease.” This decline of other species is one measure of the magnitude of human impact on the planet stemming from the expansion and acceleration of human activity designed to meet the demands of human survival as a growing global population needs more food, requiring more human engineered change to natural habitats (e.g., deforestation) and contributing to more over-fishing and over-hunting (EEA, 2015).
Along with pollution and global warming, these anthropogenically-induced pressures on the planetary ecosystem are now sending warning signals (Brannen, 2017). Some believe that by responding to these signals now, policy changes and technological developments can help provide remedies; others caution that some change is already irreversible and only drastic reorganization of global economic and consumption systems can slow down species decline and extinctions (for a discussion, see, e.g., Ripple et al., 2017).
This article considers human contributions to the rate of loss of biological diversity, beliefs that science and regulation can control the extent and nature of any consequences (Fukuyama, 2002; Wilson, 1998, 2004), and related efforts to explore the plausibility, viability and implications of reviving extinct species (Wray, 2017). It first provides an overview of the reasons for preserving biological diversity, before turning to an outline of the causes of recent (unprecedented) extinctions. The implications of extinction trends have been explored thoroughly within relevant natural sciences and some areas of the social sciences, but not so far within criminology. This article explores the prospects of species extinction in terms of the merger of conservation and consumerism (e.g., “conservation tourism” (AWF, n.d.; Buckley, 2010)), as well as the bases for denial and deferral of action furnished by faith in the new science of “de-extinction.” It concludes by arguing the case for considering “extinction” as a matter of criminological concern, and for why this is not only justifiable but necessary.
'Ancient Genetics to Ancient Genomics: Celebrity and Credibility in Data-Driven Practice' by Elizabeth D. Jones  (2019) comments 
 The search for DNA from ancient and extinct organisms – a practice now known worldwide as “Ancient DNA Research” – surfaced from the interface of paleontology, archeology, and molecular biology in the 1980s, then evolved from an emergent into a more established scientific and technological practice today. Throughout the decades, this novel approach to the study of fossils has grown under intense press and public interest, particularly as it coincided with and was catalyzed into the media spotlight by the book and movie Jurassic Park in the 1990s. Ancient DNA continues to capture professional and popular attention as researchers have recovered genetic material from extinct mammoths to early humans and Neanderthals in an attempt to refine or even rewrite our understanding of evolutionary history. This practice also captures public curiosity because of speculation – inspired by media reports as well as scientific research – that DNA may one day be used to bring extinct species back to life. Broadly, ancient DNA research is the practice of extracting, sequencing, and analyzing degraded or damaged DNA from dead organisms that are hundreds to thousands of years old. Ancient DNA has been recovered from organisms such as plants, animals, humans, and bacteria, and can be preserved in skins, tissues, and even bone if the bone is not a fully mineralized fossil.  However, it is important to note that the term “ancient” does not necessarily relate to the age of the DNA but to the characteristic damage patterns that occur as DNA breaks down after an organism has died. Given the degraded nature of this genetic material, research into DNA from ancient and extinct species requires specialist skills and technologies. Many researchers are interested in adapting state-of-the-art molecular biological techniques and high-throughput sequencing technologies in order to optimize the recovery of ancient DNA. They are also interested in using this DNA for the primary purpose of studying the evolutionary history of extinct and extant organisms as well as testing hypotheses about evolution, such as the drivers of patterns of genetic variation, regions of the genome under selection, and the migrations of past populations. At the same time, however, the ability to recover DNA from fossils has been closely connected to the idea of using DNA to resurrect extinct species. Since the 1980s, speculation about resurrection has followed the field closely, influencing the development of this practice over a prolonged period of time. 
Drawing on historical and archival material, interviews with scientists, and philosophical literature, this paper presents the search for DNA from fossils, throughout its disciplinary development from the 1980s to today, as a data-driven and celebrity-driven practice. This paper proceeds in three parts. First, I deliver a condensed history of ancient DNA research from the 1980s to today with attention to the role that technology as well as consistent press and public interest played in its growth from a curious idea into a credible practice within evolutionary biology. Second, I introduce interviewees’ memories of their history and analyze their perspectives on the historical and philosophical development of ancient DNA activity as an extended episode of boundary-work. In attempts to make sense of their history as a science in the spotlight, interviewees try to draw a line between their past and present in order to portray the practice as a more question-driven, and therefore more mature, area of research today. Finally, I discuss the role of celebrity and credibility in the data-driven practice of ancient DNA research.

AI ethics in radiology

The Royal Australian and New Zealand College of Radiologists has released a consultation document regarding Ethical Principles for AI in Medicine.

The draft states
The eight ethical principles outlined below guide the development of professional and practice standards regarding the research and deployment of machine learning (ML) systems and artificial intelligence (AI) tools in medicine, specifically with regards to clinical radiology and radiation oncology. These tools should at all times reflect the needs of patients, their care and their safety, and they should respect the clinical teams that care for them. 
These principles are intended to complement existing medical ethical frameworks (see appendices), which are insufficient for the emerging use of machine learning and artificial intelligence in medicine. In order to bridge this gap, 
RANZCR has developed an additional eight ethical principles to guide the following:
  • development of standards of practice for research in AI tools 
  • development of standards of practice for deployment of AI tools in medicine 
  • upskilling of radiologists and radiation oncologists in ML and AI, and 
  • ethical use of ML and AI in medicine.
Principle One: Safety 
The first and foremost consideration in the development, deployment or utilisation of ML systems or AI tools ought to be patient safety and quality of care, with the evidence base to support this. 
Principle Two: Avoidance of Bias 
Machine learning systems and artificial intelligence tools are limited by their algorithmic design and the data they have access to, making them prone to bias. As a general rule, ML systems and AI tools trained on greater volumes and varieties of data should be less biased. Moreover, bias in algorithmic design should be minimised by involving a range of perspectives and skill sets in the design process. The data on which ML systems and AI tools is based should be representative of the target patient population on which the system or tool is being used. The characteristics of the training data set and the environment in which it was tested must be clearly stated when marketing an AI tool to provide transparency and facilitate implementation in appropriate clinical settings. Particular care must be taken when applying an AI tool trained on a general population to indigenous or minority groups. To minimise bias, the same standard of evidence used for other clinical interventions must be applied when regulating ML systems and AI tools, and their limitations must be transparently stated. 
Principle Three: Transparency and Explainability 
ML systems and AI tools can produce results which are difficult to interpret or replicate. When used in medicine, the doctor must be capable of interpreting how a decision was made and weighing up the potential for bias. This may require upskilling for medical practitioners. When designing a ML system or AI tool, consideration must be given to how the decision made can be understood and explained by a discerning medical practitioner. 
Principle Four: Privacy and Protection of Data 
Healthcare data is amongst the most sensitive data which can be held about an individual. Every effort must be made to store a patient’s data securely and in line with relevant laws and best practice. Patient data must not be transferred from the clinical environment at which care is provided without the patient’s consent or approval from an ethics board. Where data is transferred or otherwise used for AI research, it must be de-identified such that the patient’s identity cannot be reconstructed. 
Principle Five: Decision Making on Diagnosis and Treatment 
Medicine is based on a special relationship between the doctor and the patient. The doctor is the trusted advisor on complex medical conditions, test results and procedures, who then communicates findings to the patient clearly and sensitively, answers questions and agrees next steps. Whereas ML systems and AI tools can enhance decision-making capacity, final decisions on care for a patient are recommended by the doctor with due consideration given to the patient’s presentation, history and preferences. 
Principle Six: Liability for Decisions Made 
Liability for decisions made about patient care rests principally with the responsible medical practitioner. However, given the multiple potential applications of ML systems and AI tools in the patient journey, there may be instances were liability is shared between: • The medical practitioner caring for the patient; • Hospital or practice management who took the decision to deploy the systems or tools; and • The company which developed the ML system or AI tool. The potential for shared liability needs to be identified and recorded upfront when researching or implementing ML systems or AI tools. 
Principle Seven: Application of Human Values 
ML systems and AI tools are programmed to operate in line with a specific world view. The role of the doctor is to apply humanitarian values (from their training and the ethical framework in which they operate) and consideration of that patient’s personal values to any circumstances in which ML systems or AI tools are used in medicine. 
Principle Eight: Governance 
ML and AI are fast moving areas with potential to add great value but also to do harm. A hospital or practice using ML systems or AI tools must have accountable governance committees to oversee implementation and to ensure compliance with ethical principles and standards.