06 April 2019

University Free Speech Model Code

The Model Code proposed in the report by the Hon Robert French AC on the Independent Review of Speech in Australian Higher Education Providers (discussed in the preceding post) is explained as
The code is drafted, as a non- statutory instrument, in such a way as to avoid conflict with statutory obligations, whether or not derived from existing delegated legislation or other legal duties imposed on the university by law. The Code could also be adapted to enactment as a statutory law of the university itself, but that is not necessary for its efficacy. The draft below uses the term ‘university’ but is capable of application to other higher education providers, albeit there may be differences requiring adjustments to other elements of the draft. The Code should be read with the definitions in mind. They have been drawn to pick up some important limitations on the freedoms to which it is directed. The definition of the term ‘imposed by law’ ensures that restrictions imposed by law extend to contractual obligations, duties of confidentiality and restrictions arising from intellectual property rights. 
The specific Code is
A Model Code for the Protection of Freedom of Speech and Academic Freedom in Australian Higher Education Providers 
The objects of the Code are: 
(1) To ensure that the freedom of lawful speech of staff and students of the university and visitors to the university is treated as a paramount value and therefore is not restricted nor its exercise unnecessarily burdened by restrictions or burdens other than those imposed by law and set out in the Principles of the Code. 
(2) To ensure that academic freedom is treated as a defining value by the university and therefore not restricted nor its exercise unnecessarily burdened by restrictions or burdens other than those imposed by law and set out in the Principles of the Code. 
(3) To affirm the importance of the university’s institutional autonomy under law in the regulation of its affairs, including in the protection of freedom of speech and academic freedom. 
(1) The Code applies to the governing body of the university, its officers and employees and its decision-making organs, including those involved in academic governance. 
(2) The Code also applies to student representative bodies to the extent that they have policies and rules which are capable of being applied to restrict or burden the freedom of speech of anyone, or academic freedom. 
‘academic freedom’ for the purposes of this Code comprises the following elements:
  • the freedom of academic staff to teach, discuss, and research and to disseminate and publish the results of their research; 
  • the freedom of academic staff and students to engage in intellectual inquiry, to express their opinions and beliefs, and to contribute to public debate, in relation to their subjects of study and research; 
  • the freedom of academic staff and students to express their opinions in relation to the higher education provider in which they work or are enrolled; 
  • the freedom of academic staff, without constraint imposed by reason of their employment by the university, to make lawful public comment on any issue in their personal capacities; 
  • the freedom of academic staff to participate in professional or representative academic bodies; 
  • the freedom of students to participate in student societies and associations. 
  • the autonomy of the higher education provider in relation to the choice of academic courses and offerings, the ways in which they are taught and the choices of research activities and the ways in which they are conducted. 
‘academic staff’ all those who are employed by the university to teach and/or carry out research and extends to those who provide, whether on an honorary basis or otherwise, teaching services and/or conduct research at the university. 
‘external visiting speaker’ any person who is not an invited visiting speaker and for whom permission is sought to speak on the university’s land or facilities. 
‘imposed by law’ in relation to restrictions or burdens or conditions on a freedom include restrictions or burdens or conditions imposed by statute law, the common law (including the law of defamation), duties of confidentiality, restrictions deriving from intellectual property law and restrictions imposed by contract. 
‘invited visiting speaker’ any person who has been invited by the university to speak on the university’s land or facilities. 
Note: The definition of ‘university’ which limits this class of visitor. ‘non-statutory policies and rules’ means any non-statutory policies, rules, guidelines, principles, codes or charters or similar instruments. 
‘speech’ extends to all forms of expressive conduct including oral speech and written, artistic, musical and performing works and activity and communication using social media; the word ‘speak’ has a corresponding meaning. 
‘staff’ for the purposes of this Code ‘staff’ includes all employees of the university whether fulltime or part-time and whether or not academic staff. 
‘the duty to foster the wellbeing of staff and students’;
  •  includes the duty to ensure that no member of staff and no student suffers unfair disadvantage or unfair adverse discrimination on any basis recognised at law including race, gender, sexuality, religion and political belief; 
  • includes the duty to ensure that no member of staff and no student is subject to threatening or intimidating behaviour by another person or persons on account of anything they have said or proposed to say in exercising their freedom of speech; 
  • supports reasonable and proportionate measures to prevent any person from using lawful speech which a reasonable person would regard, in the circumstances, as likely to humiliate or intimidate other persons and which is intended to have either or both of those effects; 
  • does not extend to a duty to protect any person from feeling offended or shocked or insulted by the lawful speech of another. 
‘the university’ means the university as an entity and includes its decision-making organs and officers, its student representative bodies, undergraduate and post-graduate, and any entities controlled by the university. ‘unlawful’ means in contravention of a prohibition or restriction or condition imposed by law. 
(1) The university shall have regard to the Principles of this Code in the drafting, review or amendment of any non-statutory policies or rules and in the drafting, review or amendment of delegated legislation pursuant to any delegated law- making powers. 
(2) Non-statutory policies and rules of the university shall be interpreted and applied, so far as is reasonably practicable, in accordance with the Principles of this Code. 
(3) Any power or discretion under a non-statutory policy or rule of the university shall be exercised in accordance with the Principles in this Code. 
(4) This Code prevails, to the extent of any inconsistency, over any non-statutory policy or rules of the university. 
(5) Any power or discretion conferred on the university by a law made by the university in the exercise of its delegated law-making powers shall be exercised, so far as that law allows, in accordance with the Principles of this Code. 
(6) Any power or discretion conferred on the university under any contract or workplace agreement shall be exercised, so far as it is consistent with the terms of that contact or workplace agreement, in accordance with the Principles of this Code. 
Principles of the Code 
(1) Every member of the staff and every student at the university enjoys freedom of speech exercised on university land or in connection with the university subject only to restraints or burdens imposed by:
  •  law; 
  • the reasonable and proportionate regulation of conduct necessary to the discharge of the university’s teaching and research activities; 
  • the right and freedom of others to express themselves and to hear and receive information and opinions; 
  • the reasonable and proportionate regulation of conduct to enable the university to fulfil its duty to foster the wellbeing of students and staff; 
  • the reasonable and proportionate regulation of conduct necessary to enable the university to give effect to its legal duties including its duties to visitors to the university. 
(2) Subject to reasonable and proportionate regulation of the kind referred to in the previous Principle, a person’s lawful speech on the university’s land or in or in connection with a university activity shall not constitute misconduct nor attract any penalty or other adverse action by reference only to its content. 
(3) Every member of the academic staff and every student enjoys academic freedom subject only to prohibitions, restrictions or conditions:

  • imposed by law; 
  • imposed by the reasonable and proportionate regulation necessary to the discharge of the university’s teaching and research activities; 
  • imposed by the reasonable and proportionate regulation necessary to discharge the university’s duty to foster the wellbeing of students and staff; 
  • imposed by the reasonable and proportionate regulation to enable the university to give effect to its legal duties; 
  • imposed by the university by way of its reasonable requirements as to the courses to be delivered and the content and means of their delivery. 
(4) The exercise by a member of the academic staff or of a student of academic freedom, subject to the above limitations, shall not constitute misconduct nor attract any penalty or other adverse action. 
(5) In entering into affiliation, collaborative or contractual arrangements with third parties and in accepting donations from third parties subject to conditions, the university shall take all reasonable steps to minimise the restrictions or burdens imposed by such arrangements or conditions on the freedom of speech or academic freedom of any member of the academic staff or students carrying on research or study under such arrangements or subject to such conditions. 
(6) The university has the right and responsibility to determine the terms and conditions upon which it shall permit external visitors and invited visitors to speak on university land and use university facilities and in so doing may:
(a) require the person or persons organising the event to comply with the university’s booking procedures and to provide information relevant to the conduct of any event, and any public safety and security issues; 
(b) distinguish between invited visitors and external visitors in framing any such requirements and conditions; 
(c) refuse permission to any invited visitor or external visitor to speak on university land or at university facilities where the content of the speech is or is likely to: (i) be unlawful; (ii) prejudice the fulfilment by the university of its duty to foster the wellbeing of staff and students; (iii) involve the advancement of theories or propositions which purport to be based on scholarship or research but which fall below scholarly standards to such an extent as to be detrimental to the university’s character as an institution of higher learning; 
(d) require a person or persons seeking permission for the use of university land or facilities for any visiting speaker to contribute in whole or in part to the cost of providing security and other measures in the interests of public safety and order in connection with the event at which the visitor is to speak. 
(7) Subject to the preceding Principles the university shall not refuse permission for the use of its land or facilities by an external visitor or invited visitor nor attach conditions to its permission, solely on the basis of the content of the proposed speech by the visitor. 
(8) Consistently with this Code the university may take reasonable and proportionate steps to ensure that all prospective students in any of its courses have an opportunity to be fully informed of the content of those courses. Academic staff must comply with any policies and rules supportive of the university’s duty to foster the wellbeing of staff and students. They are not precluded from including content solely on the ground that it may offend or shock any student or class of students. 

Free Speech in Australian Higher Education Institutions

The report by former High Court Chief Justice the Hon Robert French AC, foreshadowed here,  suggests that Australia is not experiencing a crisis of free speech on university campuses.

French comments
Reported incidents in Australia in recent times do not establish a systemic pattern of action by higher education providers or student representative bodies, adverse to freedom of speech or intellectual inquiry in the higher education sector. There is little to be gained by debating the contested merits of incidents which have been the subject of report and controversy. Nevertheless, even a limited number of incidents seen as affecting freedom of speech may have an adverse impact on public perception of the higher education sector which can feed into the political sphere. And as the Joint Committee on Human Rights of the House of Commons and the House of Lords observed in its report in March 2018, they may have a ‘chilling effect’ on the exercise of freedom of speech in some places. 
The emphasis in this Review has been upon the statutory framework and Standards applicable to higher education providers and their rules and policies, which may affect freedom of expression and academic freedom. Also relevant are constraints on freedom of expression and academic freedom arising out of employment terms and conditions in the higher education sector and constraints imposed by collaborative arrangements with third parties and conditions attaching to major donations. 
Constraints upon freedom of speech under the general law often require difficult judgments about which reasonable minds may differ. Laws affecting freedom of speech, both by way of protection and qualification of the freedom, often use rather general language. Its application can create challenges for administrators and law enforcement agencies and ultimately by courts. In the case of the domestic rules and policies of higher education providers the broader the terminology used to describe the circumstances in which expressive conduct can be constrained, the wider the potential application of constraints and the greater the risk of overreach even if resulting from ad hoc decisions short of a systemic approach. 
Many of the higher education rules and policies mentioned in the Report use broad language capable of impinging on freedom of expression. They have been outlined in the preceding sections of this Report. One example from among many, but not atypical, is a Discipline Rule, which defines ‘misconduct’ to include conduct that ‘demonstrates a lack of integrity or a lack of respect for the safety or wellbeing of other members of the University community’. It extends that definition to conduct that is otherwise:
(i) a contravention of the values set by the Council for the University; or 
(ii) prejudicial to the good order and government of the University; or 
(iii) reprehensible conduct for a member of the University community to engage in.
Specific instances of misconduct are set out in the Rule. They include behaving in a way to another member of the university community which creates a hostile study, research or work environment. The terms ‘lack of respect’, ‘prejudicial’ and ‘reprehensible’ are wide. That is not to say that they have not been and are not being sensibly administered. However, it does not require much imagination to apply them to a considerable range of expressive conduct. 
Terminology of that kind, when used in statutes or in the common law, fits into what Professor Julius Stone described as ‘legal categories of indeterminate reference’. They allow ‘a wide range for variable judgment in interpretation and application approaching compulsion only at the limits of the range’.  Courts, in applying such language generally, operate within parameters established by long-standing practice and precedent coupled with a degree of visibility in relation to their decision-making. Even then their decisions can involve contestable and not always visible normative choices. Administrative application may be informed by more variable and less visible perspectives. 
That kind of terminology in rules and policies, which may affect expressive conduct, is rife on university campuses in Australia. It makes the sector an easy target for those who would argue that the potential exists for restrictive approaches to the expression of contentious or unwelcome opinions or opinions which some may find offensive or insulting. The potential for overreach tending to erosion of important freedoms equates to a non-trivial risk of that erosion. The risk can never be eliminated but it can be reduced by appropriately limiting language in higher education rules and policies. Beyond that measure, a determining factor will be the culture of the institution. A culture powerfully predisposed to the exercise of freedom of speech and academic freedom is ultimately a more effective protection than the most tightly drawn rule. A culture not so predisposed will undermine the most emphatic statement of principles. The recitation of a generally expressed commitment to freedom of speech and academic freedom does not of itself provide strong evidence of the existence of such a culture. 
Given their nature and diversity and the range of subject matters upon which they touch, an immediate global review of all higher education provider rules or policies to narrow their application to freedom of speech and academic freedom would be like cleaning the Augean Stables. For this reason, it is recommended that higher education providers adopt at least umbrella principles operationalised in a code applicable to cases in which freedom of speech and academic freedom may be in issue. It is not proposed that such a code be enacted as a species of delegated legislation. Not all institutions have the power to make delegated legislation. As a non-statutory code it would be applied to guide the exercise of powers and discretions, formal and informal, when their breadth allows for its application. Essentially, its purpose is effectively to restrain the exercise of overbroad powers to the extent that they would otherwise be applied adversely to freedom of speech and academic freedom without proper justification. 
The development of a common voluntary code is not a novel proposition. In January 2018 in testimony to the Joint Committee on Human Rights of the House of Commons and the House of Lords, Sir Michael Barker, Chairman of the Regulator, the Office of Students, said that some codes of practice in the higher education sector, designed to preserve free speech, are too complicated and too bureaucratic. It was not up to the Office of Students to come up with a model code. He said however:
I do not think you need any government related agency making single codes of practice on freedom of speech. It feels altogether wrong. However, if university leaders and students’ unions got together and came up with a simplified code of practice, that might be a very good idea.
In February 2019, the Equality and Human Rights Commission of the United Kingdom, following a collaborative exercise with the sector, published a common guide for higher education providers, outlined earlier in this Report. That guide provides an approach to the discharge of statutory duties relating to freedom of speech in the sector in the UK. It also has relevance for Australia even without equivalent statutory obligations. 
A model code embodying a set of umbrella principles could be adopted, with or without modification, by individual institutions. It could also be adopted across the sector. Such a code is likely to enhance the authority of the sector in its self-regulation in this important area. It could also give rise to a body of experience in its application able to be developed and shared as a sector-wide resource. Given the importance of freedom of expression as a cultural and constitutional value in our society and to the proper functioning of higher education providers themselves, any such code must lean powerfully against limitation of the freedom by reference to the content of speech. It should cover academic freedom particularly those aspects of it which relate to freedom of expression and freedom of intellectual inquiry as well as the protection, at least within existing limits, of institutional autonomy. The code should also be at least a relevant consideration in the negotiation of enterprise bargaining agreements, employment contracts, collaborative arrangements with third parties and the conditions upon which major philanthropic gifts are accepted. 
Any code or principles must acknowledge the limits on speech imposed by the law and those limits which can be justified as necessary to the higher education provider’s mission. That mission includes responsibility for the maintenance of scholarly standards in teaching, learning and research. It includes the provision of effective teaching and learning experiences which may require conventions and practices about mutual communication between students and teachers, and between students in classroom or learning spaces, including digital learning spaces. Any code or principles must also allow for compliance with the institutional duties of care at common law and duties which are imposed by statute, including the HE Standards relating to equitable treatment of students and staff, and the fostering of their wellbeing. Suitably framed diversity and inclusion policies are no doubt referrable to those HE Standards but should be conservative in their application to expressive conduct. 
Any code or statement of principle should be framed in the recognition that it is concerned with an academic institution. A particular aspect of that distinctive character may be the institution’s responses to visits by off-campus speakers. The question may be asked whether a higher education provider should be obliged to host any intellectual rubbish that wants to cross its threshold. There is certainly an abundance of it. The challenge in this area is that sometimes one person’s intellectual rubbish is another’s profound wisdom. What is intellectual rubbish today may be received wisdom tomorrow and vice versa. In 1950, Bertrand Russell wrote an essay entitled ‘An Outline of Intellectual Rubbish’. In that category he included the attribution of value to gold, and the notion that Aristotle was wise. Some, of course, may see positive benefit in exposing students to the proponents of intellectual rubbish, including racist opinion, so as to better identify it, understand how it is propagated and how to challenge it effectively. The EHRC Guide in the United Kingdom offers some useful, practical advice in that respect. 
There is difficulty in drawing a line around the concept of ‘intellectual rubbish’ as much as there is in drawing a line around the concept of a resulting ‘harm’ which would warrant refusing entry to a speaker. Some refusals seem reasonable and essentially uncontroversial, at least where ideological perspectives are not involved. In 2017, Edith Cowan University rejected a facility hire application by an organisation proposing to hold a seminar on its campus related to ‘Pranic crystal healing’. Following letters of concern from members of the public the university conducted inquiries into the organisation and the content of the seminar and determined that the seminar did not align with the university’s evidence-based approach to teaching and research in dietetics and was inconsistent with its research activities in that discipline. 
There are cases in which there may be strong ‘harm’ arguments for not providing a platform for the lawful expression of an opinion. As a matter of general principle, the class of speech to be characterised as ‘harmful’ for the purpose of a model code should be as small as possible and, by its very definition, offer justification for the imposition of a restriction. None of the above is inconsistent with the determination of priorities by a higher education institution for the purpose of deciding who will be permitted to use its facilities. Nor is it inconsistent with a higher education provider applying priorities governing the extent to  which it will bear costs associated with the conduct of any event involving an off-campus speaker. 
The Terms of Reference of this Review require consideration of existing statutory Standards with respect to their ‘effectiveness’. The term ‘effectiveness’ in relation to the protection of freedom of speech and intellectual inquiry is normative and depends upon some common understanding of what limits on the freedom are appropriate and what is necessary to provide an acceptable level of protection of the freedom within those limits. Any statutory regime has to allow room for distinctions to be made between different classes of case and circumstances. A detailed prescription would provide a platform for undesirably intrusive regulatory supervision of the formulation and application of institutional policies. An example is the Campus Free Speech Protection Act 2017 of Tennessee, referred to earlier in this Report. 
Arming a regulator with a detailed statutory prescription would probably require additional compliance resourcing for the regulator. It would impose on the regulator the burden of contestable evaluative and normative judgments. It would diminish institutional autonomy. A statutory standard, beyond the level of generality presently reflected in the HE Standards made under the TEQSA Act, is at risk of being disproportionate to any threat to freedom of expression which exists or is likely to exist on Australian university campuses for the foreseeable future. 
Effective statutory standards can and should be confined to broadly expressed requirements that higher education providers have in place policies reflected in their domestic rules or principles and applicable to student representative bodies, the objectives of which are the protection of freedom of speech as a free-standing value and academic freedom which encompasses freedom of expression peculiar to the distinctive character of higher education institutions and their academic staff in particular. On that model, the existence of an institution-wide policy which could reasonably guide administrative action consistently with the HE Standards should constitute compliance with them. ‘Effective policies’ in this context must at least mean policies which reflect and give effect to a strong presumption in favour of freedom of speech and academic freedom. External review of the existence of such policies and of their administration should be sufficient to provide public accountability without the need to impose financial penalties which are hardly likely to benefit anybody in the higher education sector. That said, the present HE Standards could be improved with a more precise formulation directed to freedom of speech and academic freedom. 
Consistently with that approach, the statutory standard presently established under the HES Act and the TEQSA Act which relates to ‘free intellectual inquiry’ should be amended to refer instead to freedom of expression and academic freedom, coupled with a definition of the term ‘academic freedom’. The HES Act itself should be amended to support that change. 
A more far-reaching measure, in relation to freedom of speech generally, would be the imposition of a statutory duty on higher education providers in relation to freedom of expression which is modelled on the duty imposed on public authorities under the human rights legislation of Victoria, the ACT and now Queensland and in the United Kingdom under the Human Rights Act 1998 (UK). Freedom of speech and expression in that statutory context are terms which are the subject of an extensive body of domestic and international law which has worked out their application and limits case-by-case over many years. The imposition of such a statutory mandate would not involve the application of a novel legal standard although it would be necessary to ensure that its application to the decision-making of higher education providers covered the exercise of statutory discretions and the application of domestic rules and policies. The proposed Model Code should provide a way of responding to such a statutory duty in those places in which it already applies. 
Some might say — if a law of the Commonwealth were to create a statutory mandate along the lines of the existing Victorian, Queensland or ACT provisions applicable to higher education providers —why should it not apply to all public authorities throughout Australia? Such an application would appear to be within the constitutional authority of the Commonwealth Parliament to make laws with respect to external affairs, given the inclusion of freedom of expression in the International Covenant on Civil and Political Rights to which Australia is a party. This Review does not propose a general statutory duty of the kind imposed in Victoria, Queensland and the ACT as one of its recommendations. Such a proposal would have policy implications with which it is not necessary to engage for present purposes. The recommendation of a Model Code, operationalising umbrella principles, coupled with cognate amendments to the HES Act and the HE Standards should be sufficient unto the day.
The report then directly addresses  the Terms of Reference
In summary the response to the Terms of Reference, reflected in the body of this Report, the General Conclusions and the Recommendations is as follows:
1. The effectiveness of the HES Act and the HE Standards to promote and protect freedom of expression and freedom of intellectual inquiry depends upon how they are interpreted by higher education providers and by TEQSA. 
Their interpretation and therefore their effectiveness is made difficult by the uncertain scope of the term ‘free intellectual inquiry’ and its relationship to freedom of expression generally, freedom of expression as an aspect of academic freedom, and academic freedom generally. They must also be interpreted and applied consistently with other standards requiring higher education providers to accommodate student diversity, to promote and foster a safe environment and to foster the wellbeing of students and staff. 
2. The policies and practices of higher education providers which arguably respond to the standards are diverse. They use broad language such that their practical operation in relation to freedom of speech and academic freedom depends upon their interpretation by those who are required to apply them and also upon the exercise of evaluative judgments and discretions. There is no evidence, on the basis of recent events, which would answer the pejorative description of a ‘free speech crisis’ on campus. Nevertheless, the diversity and language of a range of policies and rules give rise to unnecessary risks to freedom of speech and to academic freedom. And even a small number of high profile incidents can have adverse reputational effects on the sector as a whole. 
3. There is a range of approaches in other countries to the protection of freedom of expression and academic freedom that range from legislative prescription to codes of practice to statements of high level principle. The most relevant of those is found in recent consideration of the application of statutory requirements in the United Kingdom. The principles-based approach adopted by a number of universities in the United States is also instructive and potentially applicable in Australia. 
4. The most realistic and practical options are those for which the sector can claim ownership under the general coverage of the HES Act and HE Standards, rather than more prescriptive legislative requirements. The protection of freedom of speech and academic freedom in the sector can be made more effective by the adoption of a statement of principles, preferably operationalised by an overarching code. Such a code should be pitched at a level sufficient to allow for reasonable flexibility in its application but providing greater guidance to decision-makers and others than presently exists. These measures can be supported by minor amendments to the HES Act and the HE Standards to distinguish freedom of speech and academic freedom and to define academic freedom by reference to generally accepted elements. Such principles and a code of practice, which is owned by the sector, offer more promise in supporting a culture disposed to the freedoms than imposed prescription.
French makes a recommendation  for a statutory amenfment
Amendment of the existing HES Act and HE Standards is not essential to support a Model Code for the sector directed to ‘freedom of speech’ and ‘academic freedom’. Nevertheless, it would be preferable that the HES Act and the HE Standards be clarified with the use of that terminology. It is therefore suggested that consideration be given to amending the HES Act along the following lines:
1. Substitute for the objects set out in s 2-1(a)(iv): To support a higher education system that: (i) promotes and protects freedom of speech and academic freedom. 
2. Introduction of a definition of ‘academic freedom’ as follows: “Academic freedom”, for the purposes of this Act and the Tertiary Education and Quality Standards Agency Act and any standards made under that Act, comprises the following elements:
  • the freedom of academic staff to teach, discuss, and research and to disseminate and publish the results of their research;
  • the freedom of academic staff and students to engage in intellectual inquiry, to express their opinions and beliefs, and to contribute to public debate, in relation to their subjects of study and research; 
  • the freedom of academic staff and students to express their opinions in relation to the higher education provider in which they work or are enrolled; 
  • the freedom of academic staff, without constraint imposed by reason of their employment by the university, to make lawful public comment on any issue in their personal capacities; 
  • the freedom of academic staff to participate in professional or representative academic bodies; 
  • the freedom of students to participate in student societies and associations. 
  • the autonomy of the higher education provider in relation to the choice of academic courses and offerings, the ways in which they are taught and the choices of research activities and the ways in which they are conducted. 
3. Amend s 19-115 of the HES Act to read: A higher education provider that is a Table A provider or a Table B provider must have a policy that upholds freedom of speech and academic freedom.
He also recommends amendment of the Higher Education Standards
1. The relevant HE Standard, 6.1 at par 4, be amended consequentially to read: The governing body takes steps to develop and maintain an institutional environment in which freedom of speech and academic freedom is upheld and protected, students and staff are treated equitably, the wellbeing of students and staff is fostered, informed decision-making by students is supported and students have opportunities to participate in the deliberative and decision-making processes of the higher education provider. 
2. A consequential amendment to the criteria for higher education providers set out in Part B of the Standards would have B1.1 reading: The higher education provider has a clearly articulated higher education purpose that includes a commitment to and support for freedom of speech and academic freedom. 
3. There would probably be a need for consequential amendments to the TEQSA guidance note on the diversity and equity statement issued on 11 October 2017. 
4. The existing HE Standards, if amended, would be consistent with a Model Code which is expressed in terms of freedom of speech and academic freedom as distinct but overlapping concepts rather than in terms of freedom of intellectual inquiry. However, the Model Code proposed below should not require an amendment to the HES Act or the relevant HE Standards to render it compliant with them.
As a consequence, a Model Code is recommended. The text of that Code is provided in the following post.


In Turner v Blackstock [2019] NSWDC 102  Levy J has awarded the plaintiff $204,670.50 in an egregious medical negligence case.

The judgment states –
  The plaintiff undertook a Google search which led her to the defendant’s website where he was described as a plastic surgeon. The defendant’s website also had video and other advertising material that gave the plaintiff the impression that he was a qualified plastic surgeon with suitable skill and experience in breast augmentation surgery. She had no reason to think otherwise. She obtained a quotation from the defendant for breast augmentation surgery. That quotation was $5,000 less than what was apparently being quoted by other plastic surgeons. There was no examination or assessment beforehand. The plaintiff felt that this lesser cost justified her travelling from her home in Victoria to NSW to have her breast augmentation surgery performed by the defendant. 
Breast augmentation surgery on 30 October 2014 
After some telephone conversations between the plaintiff and the defendant’s staff concerning the proposed procedure, on 24 October 2014, the plaintiff made a booking for the breast augmentation procedure to be performed on 30 October 2014. On an uncertain date, at the defendant’s request, an associate of the defendant, a Dr Eros, took some measurements and photographs of the plaintiff’s breasts, and forwarded them to the defendant: Affidavit, Annexure 1, pp 14-15. The plaintiff then travelled to Penrith, NSW. On 30 October 2014, on the morning of the procedure, she met the defendant for the first time. At that time he discussed the details of the proposed surgery with her. On that occasion, based on her research, the plaintiff had requested of the defendant that the proposed breast implants be inserted below her pectoral muscles for a more natural looking outcome and to lessen the chances of adverse effects from sub-cutaneous capsular hardening around the implant. 
The defendant, who had persuaded the plaintiff he knew what he was doing, dissuaded her from pursuing her preferred option, and instead convinced her to have the implants inserted above the pectoral muscle, explaining that technique would involve less risk of capsular hardening around the implant. 
On the morning the procedure was performed, the plaintiff was gowned for the surgery in an ante room of the defendant’s house where she had observed that sheets had been draped over old armchairs. She was then taken into a small room nearby and placed on a long bench-like table located under a surgical lamp. She was given an intravenous sedative and the defendant then commenced the procedure with the aid of an assistant who was not an anaesthetist. 
Soon after the procedure commenced, the plaintiff interrupted the operation and made it known to the defendant that she felt pain during the defendant’s surgical incisions. She was then further sedated. Afterwards, whilst still feeling the effects of the sedation, the plaintiff was assisted to sit up, at which time she was shown a mirror and asked if she was satisfied with the appearance of her implanted breasts. She said that at that time she felt sick at the sight of the incisions. 
After the surgical wounds were dressed, the plaintiff rested for about an hour whilst within the defendant’s premises, and she was then released into the care of her partner. They travelled back to Victoria two days later. 
Post-operative complications 
At home, the plaintiff strictly followed the post-operative guidelines given to her by the defendant for her surgical after care. In the days that followed she felt an increasing sense of tightness in her breasts. One week post-operatively, on the morning of 6 November 2014, the plaintiff felt a popping sensation at the base of her left breast. On closer inspection, she saw that there was bleeding in that area. With the aid of a mirror she could see that the surgical incision in that breast had split open along an extensive split line as shown in a photograph she then obtained: Affidavit, Annexure 2, p 20. 
The plaintiff then telephoned the defendant to report that development. He told her to leave the wound to heal by itself. She was concerned about that suggestion. She therefore contacted her local medical practitioner who, on examination, saw that the left breast implant had become exposed. He considered the plaintiff had incurred an infection. He prescribed antibiotics and medication for pain relief. Over a series of consultations he also attended to changes of dressings. 
First remedial surgery – 21 November 2014 
On 21 November 2014, the plaintiff travelled to Penrith to see the defendant in his rooms. She was gowned and placed onto a metal trolley which was covered with a blue sheet without any underlying padding. She was provided with headphones and local anaesthetic. She could feel the defendant open her left breast incision further, take out her left implant, then re-insert it, and then re-suture the incision. The plaintiff felt scared in those events. 
The plaintiff then returned to Victoria. Her local medical practitioner provided her with post-operative care and removed the surgical sutures about two weeks later. Between December 2014 and January 2015, the plaintiff was not exercising or undertaking any strenuous activity. In that time, she did not experience any breast problems. 
However, in late January 2015, she became aware of a hardening and a slight raised appearance and some reddening in her left breast. She also became aware of constant, stabbing-like pain in her left breast in the area of the implant. The plaintiff experienced discomfort and capsular contraction in her left breast. The plaintiff again contacted the defendant, who suggested she have an ultrasound study, which was performed in late February 2015. In the intervening period, the plaintiff continued to experience constant, excruciating pain and redness in her left breast. These problems became exacerbated when she made certain movements. Her left breast had become infected and swollen: Affidavit, Annexure 4, pp 27-29. At that time, she became unable to care for her two children who were then aged 6 and 4 years. 
Second remedial surgery – 14 April 2015 
In early April 2015, the plaintiff called the defendant’s rooms on multiple occasions to try to speak to him about the problems she was experiencing with her left breast, including her excruciating pain. No-one on behalf of the defendant returned her calls. 
In those circumstances, she saw her local medical practitioner who referred her to a local plastic surgeon, who advised that she should have an immediate surgical removal of the left breast implant. On 14 April 2015, when she attended her local hospital for a preparatory intravenous antibiotic infusion, the attending surgeon at that time told her she needed to have the implant removed urgently because of infection. She had that surgery immediately. Thereafter, she was discharged from hospital after two days with instructions to take a seven day course of oral antibiotics, and she did so. ... 
After the remedial surgical wound had healed she made inquiries of the defendant to have the uneven appearance of her breasts remedied. At the time she felt a sense of injustice and she felt the defendant had caused her this difficulty and that he should therefore fix the problem. In those circumstances, the defendant agreed to re-operate to replace the plaintiff’s left implant free of further charge. 
Third remedial surgery – 23 October 2015 
On 23 October 2015, the plaintiff again attended at the defendant’s rooms in Penrith and he performed an implant procedure on her left breast whilst the plaintiff was under intravenous sedation. At the end of that procedure the plaintiff was woken, helped to sit up and she was asked whether she was happy with the new implant. She then rested for an hour or so before being discharged to the care of her partner. She then returned home to Victoria with her partner two days later. 
In the post-operative period, after again strictly following the post-operative guidelines of rest and minimal activity, the plaintiff began to notice that after about 6 weeks of post-operative healing, her breasts were of an uneven appearance. This included an abnormality where one of her nipples was higher than the other and was facing in a different direction. She noticed that she had been left with unevenly shaped breasts, with further scarring above the infra-mammary fold from the first surgery, as seen in the photograph taken in November 2015: Affidavit, Annexure 9. The plaintiff felt that those circumstances represented a further and devastating blow to her self-confidence and self-esteem. This was further exacerbated by the development of what was described as a “double-bubble” deformity of her left breast, as shown in the photograph taken at that time: Affidavit, Annexure 10. These problems were having a significantly adverse impact upon the plaintiff’s relationship with her partner. 
Fourth remedial surgery – 22 November 2016 
In August 2016, the plaintiff again consulted a local plastic surgeon. He considered that her breast implant issues were complex. He therefore referred her to Dr Hamish Farrow, a tertiary consultant plastic and reconstructive surgeon. In the surrounding circumstances, those events were having an adverse impact upon the plaintiff’s relationship with her partner. This resulted in a separation. 
When the plaintiff consulted Dr Farrow she became distraught at learning that the initial operation she had requested the defendant to perform, and which the defendant had dissuaded her from having, had been the more appropriate one for her circumstances. Dr Farrow recommended to the plaintiff that she have both implants removed and replaced with new implants. She accepted that recommendation. 
The plaintiff said that at that time she felt she had been betrayed by the defendant. She displayed manifest upset when describing those circumstances in her oral evidence. On 22 November 2016, under general anaesthesia, Dr Farrow carried out the recommended bilateral implant removal and replacement procedure to try and restore a more normal symmetry and breast appearance in the hope this would also serve to restore the plaintiff’s self-confidence. In the healing phase the plaintiff’s breasts looked symmetrical but after about 6 weeks the right breast began to sit a little lower than the left breast due to the advent of scar tissue: Affidavit, Annexure 13. 
Medico-legal opinion obtained by plaintiff 
On 13 November 2017, at the request of her solicitor, the plaintiff was examined by Dr Murray Stapleton, a consultant plastic and reconstructive surgeon. Following that assessment, he prepared an expert report and attached relevant explanatory photographs: Affidavit, Annexure 12, pp 39-49. 
Dr Stapleton’s opinion was critical of Dr Blackstock for the unprofessional manner in which he undertook the surgery, not having qualified as a surgeon. He was of the opinion that the defendant’s treatment of the plaintiff was unacceptable, unprofessional and incompetently performed. 
He was also critical of Dr Blackstock having carried out the operation without an anaesthetist, in a house, and giving anaesthetic to the patient himself, and for incompetently managing the resultant complications. 
Overall, his opinion was that the treatment and the management “could only be described as unacceptable practice”: Affidavit, Annexure 12, pp 39-44.
The Court concludes
The compelling conclusion is that but for the unprofessional and incompetent treatment provided to her by the defendant, the plaintiff would not have encountered the complications that occurred at the hands of an unqualified surgeon. 
I find that if the plaintiff had been told by the defendant that he was going to provide the described treatment without having suitable qualifications, training and experience, it would have been most improbable that the plaintiff would have submitted herself to any such operation at the hands of the defendant: s 5D(1)(a) and (b) of the CL Act.

05 April 2019


From yesterday's Senate Estimates Committee Hansard regarding deficiencies in the administration of the FOI Act.
Senator URQUHART: Thank you. Mr Pratt, The Guardian have just released an article titled—and I have a copy—and you look like you have a copy, Mr Pratt. 
Mr Pratt: Thank you, Senator. 
Senator URQUHART: It is titled 'Government tries to censor itself over export of birds to convicted German fraudster'. The Guardian reported that the department has asked it to destroy documents handed over under FOI relating to the Australian government allowing for the export of 232 birds to a Mr Martin Guth, a man with multiple criminal convictions. I understand you have the article? 
Mr Pratt: Yes. 
The Guardian had reported
The Australian government has attempted to retrospectively censor critical information related to exports of rare and exotic birds to a German organisation headed by a convicted kidnapper, fraudster and extortionist.
Guardian Australia revealed late last year that Australia had permitted the export of 232 birds, some worth tens of thousands of dollars, to the Brandenburg-based Association for the Conservation of Threatened Parrots (ACTP) between 2015 and November 2018.
Conservation groups and federal politicians had repeatedly expressed concern about the group, which is headed by Martin Guth, a man with multiple criminal convictions.
The Guardian’s investigation relied on internal government documents secured through freedom of information laws, released in August.
Guardian Australia made subsequent freedom of information requests and received further documents in January. But the federal department of environment has now attempted to retrospectively redact parts of the documents, saying it accidentally released information it shouldn’t have.
Some of the inadvertently released information could “facilitate fraudulent export applications”, the department said. The department had also accidentally released “personal information, such as birth dates and name, and confidential business information”.
The department has asked Guardian Australia to destroy its copies of the documents, and not further disseminate the newly redacted details.
“While we understand that the FOI decisions have already been made, and that you are under no obligation to follow the department’s wishes, we kindly request that you either: destroy the documents that the department has previously released to you and instead, use the redacted documents attached to this letter; or otherwise ensure that the information in question … is not further disclosed or made publicly available,” the department said in a letter emailed to the Guardian on Wednesday, but dated last month.
The documents have not been published on the department’s online FOI disclosure log. 
The department’s stance suggests that other parties – journalists or conservation groups, for example – would be subject to the newly introduced redactions if they requested the same documents.
Hansard continues
Senator URQUHART: Is it common for the department to retrospectively redact FOI documents? 
Mr Pratt: No. 
Senator URQUHART: What powers does the department have to retrospectively redact FOI documents? 
Mr Pratt: I believe we have no powers of that sort. 
Senator URQUHART: The Guardian article also states that the department argues that retrospective redaction was needed because release of the information could facilitate fraudulent export applications. Given the concerns with the export of the 232 birds to begin with, how can the release of this information put other Australian fauna at further risk of illegal export? 
Ms Jonasson: Thank you for the question. We do have a copy of the letter that we provided to the journalist, which we would be happy to table. It might help the committee. The first point I would like to make is that we do acknowledge in the letter that Ms Cox has no obligation to do as we asked. It was a request we made of her. We also noted that we made this request really to protect the information from further disclosure, not to prevent her from making use of the documents for other purposes. To be quite frank, it was because of an administrative error of my team that this information was released. I was absolutely aware that, in having this letter provided to Ms Cox, an article such as this may appear in The Guardian. Nevertheless, I felt that, for full transparency and to ensure that due process was followed, we should provide such a letter to Ms Cox and provide her with the information and the reasoning why, absolutely noting that there was no legal obligation on her to do as we were kindly requesting. The reality is that more information than would have normally been provided has been provided. I trust that Ms Cox will use the information in an appropriate way. Our concern really is to ensure that, as we've said in the letter, permit numbers and those sorts of things are not used for people to create their own fraudulent permits, permit numbers and that sort of stuff. That's basically the reason we did it. I was aware that, in doing so, we would likely end up in The Guardian
CHAIR: Is it the wish of the committee that we have that letter tabled? 
Senator URQUHART: Yes. 
CHAIR: If we could have a copy of that, that would be great. Thanks, Ms Jonasson. 
Senator URQUHART: What Australian fauna are at risk of fraudulent export as a result of the release of this information? 
Ms Jonasson: It's actually because of the nature of the information. People may be able to create their own permit numbers and things like that. We really wanted to ensure that that wasn't possible, particularly given the concerns that have been raised recently around a number of other exports. We take the protection of our wildlife very seriously. We look to ensure that, where animals are exported, we contract that and we know where they have come from. 
Senator URQUHART: You mentioned that the release of the information was an administrative error. 
Ms Jonasson: Yes, it was. 
Senator URQUHART: What things have you put in place to ensure that this won't happen again? 
Ms Jonasson: The first thing I would say is that, since we became aware of this, we have done this letter to Ms Cox to ensure that we are on record as correcting that. In addition to that I've put in place additional checks in my team. There have been multiple FOI requests on this particular topic, as you would be aware. I've been working with our general counsel branch to ensure that we have the appropriate checks before information is released to make sure nothing of a personal nature or something that could support corrupt or fraudulent behaviour is released. I might hand over to my colleague Ms Tregurtha. 
Ms Tregurtha: In terms of responsibility for ensuring that delegates and others processing any department requests are aware of their obligations, we take an educative role and we also provide support in processing requests. I've also been through this error with my team as to what we could do better in the future. We're making sure that we do thoroughly review and assist to review those documents and also identify where we might need to do more enhanced consultation with third parties to pick up these sorts of things. 
Senator URQUHART: Have either set of documents—the newly redacted or the originals—been published on the department's FOI log? 
Ms Tregurtha: No we haven't done that yet. 
Senator URQUHART: Are you going to do that? 
Ms Tregurtha: Yes, we will do that. 
Senator URQUHART: Who are the third parties who have raised concerns about the information being made public? It is six months after the release of that information. Ms Jonasson: I don't have that information available here today. I'd have to take that on notice.

Australian AI Ethics Framework

The government discussion paper - comments due May this year - on the Australian Artificial Intelligence Ethics Framework states
The ethics of artificial intelligence are of growing importance. Artificial intelligence (AI) is changing societies and economies around the world. Data61 analysis reveals that over the past few years, 14 countries and international organisations have announced AU$86 billion for AI programs. Some of these technologies are powerful, which means they have considerable potential for both improved ethical outcomes as well as ethical risks. This report identifies key principles and measures that can be used to achieve the best possible results from AI, while keeping the well-being of Australians as the top priority. 
Countries worldwide are developing solutions. 
Recent advances in AI-enabled technologies have prompted a wave of responses across the globe, as nations attempt to tackle emerging ethical issues (Figure 1). Germany has delved into the ethics of automated vehicles, rolling out the most comprehensive government-led ethical guidance on their development available. New York has put in place an automated decisions task force, to review key systems used by government agencies for accountability and fairness. The UK has a number of government advisory bodies, notably the Centre for Data Ethics and Innovation. The European Union has explicitly highlighted ethical AI development as a source of competitive advantage. 
An approach based on case studies. 
This report examines key issues through exploring a series of case studies and trends that have prompted ethical debate in Australia and worldwide (see Figure 2). ...
Artificial intelligence (AI) holds enormous potential to improve society. 
While a “general AI” that replicates human intelligence is seen as an unlikely prospect in the coming few decades, there are numerous “narrow AI” technologies which are already incredibly sophisticated at handling specific tasks [3]. Medical AI technologies and autonomous vehicles are just a few high profile examples of AI that have potential to save lives and transform society.  
The benefits come with risks.
Automated decisions systems can limit issues associated with human bias, but only if due care is focused on the data used by those systems and the ways they assess what is fair or safe. Automated vehicles could save thousands of lives by limiting accidents caused by human error, but as Germany’s Transport Ministry has highlighted in its ethics framework for AVs, they require regulation to ensure safety. 
Existing ethics in context, not reinvented. 
Philosophers, academics, political leaders and ethicists have spent centuries developing ethical concepts, culminating in the human-rights based framework used in international and Australian law. Australia is a party to seven core human rights agreements which have shaped our laws. An ethics framework for AI is not about rewriting these laws or ethical standards, it is about updating them to ensure that existing laws and ethical principles can be applied in the context of new AI technologies. 
Core principles for AI 
1. Generates net-benefits. The AI system must generate benefits for people that are greater than the costs. 
2. Do no harm. Civilian AI systems must not be designed to harm or deceive people and should be implemented in ways that minimise any negative outcomes. 
3. Regulatory and legal compliance. The AI system must comply with all relevant international, Australian Local, State/Territory and Federal government obligations, regulations and laws. 
4. Privacy protection. Any system, including AI systems, must ensure people’s private data is protected and kept confidential plus prevent data breaches which could cause reputational, psychological, financial, professional or other types of harm. 
5. Fairness. The development or use of the AI system must not result in unfair discrimination against individuals, communities or groups. This requires particular attention to ensure the “training data” is free from bias or characteristics which may cause the algorithm to behave unfairly. 
6. Transparency and Explainability. People must be informed when an algorithm is being used that impacts them and they should be provided with information about what information the algorithm uses to make decisions. 
7. Contestability. When an algorithm impacts a person there must be an efficient process to allow that person to challenge the use or output of the algorithm. 
8. Accountability. People and organisations responsible for the creation and implementation of AI algorithms should be identifiable and accountable for the impacts of that algorithm, even if the impacts are unintended. 
Data is at the core of AI. 
The recent advances in key AI capabilities such as deep learning have been made possible by vast troves of data. This data has to be collected and used, which means issues related to AI are closely intertwined with those that relate to privacy and data. The nature of the data used also shapes the results of any decision or prediction made by an AI, opening the door to discrimination when inappropriate or inaccurate datasets are used. There are also key requirements of Australia’s Privacy Act which will be difficult to navigate in the AI age. 
Predictions about people have added ethical layers. 
Around the world, AI is making all kinds of predictions about people, ranging from potential health issues through to the probability that they will end up re-appearing in court. When it comes to medicine, this can provide enormous benefits for healthcare. When it comes to human behaviour, however, it’s a challenging philosophical question with a wide range of viewpoints. There are benefits, to be sure, but risks as well in creating self-fulfilling prophecies . The heart of big data is all about risk and probabilities, which humans struggle to accurately assess. 
AI for a fairer go. 
Australia’s colloquial motto is a “fair go” for all. Ensuring fairness across the many different groups in Australian society will be challenging, but this cuts right to the heart of ethical AI. There are different ideas of what a “fair go” means. Algorithms can’t necessarily treat every person exactly the same either; they shou ld operate according to similar principles in similar situations. But while like goes with like, justice sometimes demands that different situations be treated differently. When developers need to codify fairness into AI algorithms, there are various challenges in managing often inevitable trade-offs and sometimes there’s no “right” choice because what is considered optimal may be disputed. When the stakes are high, it’s imperative to have a human decision-maker accountable for automated decisions—Australian laws already mandate it to a degree in some circumstances. 
Transparency is key, but not a panacea. 
Transparency and AI is a complex issue. The ultimate goal of transparency measures are to achieve accountability, but the inner workings of some AI technologies defy easy explanation. Even in these cases, it is still possible to keep the developers and users of algorithms accountable. An analogy can be drawn with people: an explanation of brain chemistry when making a decision doesn’t necessarily help you understand how that decision was made—an explanation of that person’s priorities is much more helpful. There are also complex issues relating to commercial secrecy as well as the fact that making the inner workings of AI open to the public would leave them susceptible to being gamed. 
Black boxes pose risks. 
On the other hand, AI “black boxes” in which the inner workings of an AI are shrouded in secrecy are not acceptable when public interest is at stake. Pathways forward involve a variety of measures for different situations, ranging from explainable AI technologies, testing, regulation that requires transparency in the key priorities and fairness measures used in an AI system, through to measures enabling external review and monitoring. People should always be aware when a decision that affects them has been made by an AI, as difficulties with automated decisions by government departments have already been before Australian courts. 
Justifying decisions. 
The transparency debate is one component feeding into another debate: justifiability. Can the designers of a machine justify what their AI is doing? How do we know what it is doing? An independent, normative framework can serve to inform the development of AI, as well as justify or revise the decisions made by AI. This document is part of that conversation. 
Privacy measures need to keep up with new AI capabilities. 
For decades, society has had rules about how fingerprints are collected and used. With new AI-enabled facial recognition, gait and iris scanning technologies, biometric information goes well beyond fingerprints in many respects. Incidents like the Cambridge Analytica scandal demonstrate how far-reaching privacy breaches can be in the modern age, and AI technologies have the potential to impact this in significant ways. We may need to further explore what privacy means in a digital world. 
Keeping the bigger picture in focus
Discussions on the ethics of autonomous vehicles tend to focus on issues like the “trolley problem” where the vehicle is given a choice of who to save in a life-or-death situation. Swerve to the right and hit an elderly person, stay straight and hit a child, or swerve to the left and kill the passengers? These are important questions worth examining, but if widespread adoption of autonomous vehicles can improve safety and cut down on the hundreds of lives lost on Australian roads every year, then there is a risk that lives could be lost if relatively far-fetched scenarios dominate the discussion and delay testing and implementation. The values programmed into autonomous vehicles are important, though they need to be considered alongside potential costs of inaction. 
AI will reduce the need for some skills and increase the demand for others 
Disruption in the job market is a constant. However, AI may fuel the pace of change. There will be challenges in ensuring equality of opportunity and inclusiveness. An ethical approach to AI development requires helping people who are negatively impacted by automation transition their careers. This could involve training, reskilling and new career pathways. Improved information on risks and opportunities can help workers take proactive action. Incentives can be used to encourage the right type of training at the right times. Overall, acting early improves the chances of avoiding job-loss or ongoing unemployment. 
AI can help with intractable problems. 
Long-standing health and environmental issues are in need of novel solutions, and AI may be able to help. Australia’s vast natural environment is in need of new tools to aid in its preservation, some of which are already being implemented. People with serious disabilities or health problems are able to participate more in society thanks to AI-enabled technologies. 
International coordination is crucial. 
Developing standards for electrical and industrial products required international coordination to make devices safe and functional across borders. Many AI technologies used in Australia won’t be made here. There are already plenty of off-the-shelf foreign AI products being used. Regulations can induce foreign developers to work to Australian standards to a point, but there are limits. International coordination with partners overseas, including the International Standards Organisation (ISO), will be necessary to ensure AI products and software meet the required standards. 
Implementing ethical AI. 
AI is a broad set of technologies with a range of legal and ethical implications. There is no one-size-fits all solution to these emerging issues. There are, however, tools which can be used to assess risk and ensure compliance and oversight. The most appropriate tools can be selected for each individual circumstance. 
A toolkit for ethical AI 
1. Impact Assessments: Auditable assessments of the potential direct and indirect impacts of AI, which address the potential negative impacts on individuals, communities and groups, along with mitigation procedures. 
2. Internal or external review: The use of specialised professionals or groups to review the AI and/or use of AI systems to ensure that they adhere to ethical principles and Australian policies and legislation. 
3. Risk Assessments: The use of risk assessments to classify the level of risk associated with the development and/or use of AI. 
4. Best Practice Guidelines: The development of accessible cross industry best practice principles to help guide developers and AI users on gold standard practices. 
5. Industry standards: The provision of educational guides, training programs and potentially certification to help implement ethical standards in AI use and development 
6. Collaboration: Programs that promote and incentivise collaboration between industry and academia in the development of ‘ethical by design’ AI, along with demographic diversity in AI development. 
7. Mechanisms for monitoring and improvement: Regular monitoring of AI for accuracy, fairness and suitability for the task at hand. This should also involve consideration of whether the original goals of the algorithm are still relevant. 
8. Recourse mechanisms: Avenues for appeal when an automated decision or the use of an algorithm negatively affects a member of the public. 
9. Consultation: The use of public or specialist consultation to give the opportunity for the ethical issues of an AI to be discussed by key stakeholders. 
Best practice based on ethical principles. 
The development of best practice guidelines can help industry and society achieve better outcomes. This requires the identification of values, ethical principles and concepts that can serve as their basis.
The paper states
This report covers civilian applications of AI. Military applications are out of scope. 
This report also acknowledges research into AI ethics occurring as part of a project by the Australian Human Rights Commission, as well as work being undertaken by the recently established Gradient Institute. This work complements research being conducted by the Australian Council of Learned Academies (ACOLA) and builds upon the Robotics Roadmap for Australia by the Australian Centre for Robotic Vision. 
From a research perspective, this framework sits alongside existing standards, such as the National Health and Medical Research Council (NHMRC) Australian Code for the Responsible Conduct of Research and the NHMRC’s National Statement on Ethical Conduct in Human Research.

National Data Advisory Council appointments

The National Data Advisory Council, announced last week as a follow-up to the Productivity Commission Data Sharing report and complement to the new data sharing legislation (the proposed new Data Sharing and Release Act that deals with national government data alongside the new Consumer Data Right), is promoted by the Government as going to "provide valuable insights on how to best manage data in the digital age".

They would say that, wouldn't they, with the Government bringing out the trash and offering a flurry of good news stories with announcement of the election in a few days time.

The media release states
The Council, which meets for the first time in Sydney today, will help to guide the Office of the National Data Commissioner on issues such as ethical data usage, building social licence, and technical best practice as Australia’s data sharing and release arrangements undergo major reforms. 
Minister for Human Services and Digital Transformation Michael Keenan said the Council includes leading minds from academia, industry, government and civil society, including the 2003 Australian of the Year, Professor Fiona Stanley, and Australia’s Chief Scientist Alan Finkel. 
“Data held by Government is a hugely valuable national resource that, when used correctly, can drive innovation and economic growth, help to better inform public policy, and deliver breakthroughs for researchers and scientists,” Minister Keenan said. 
“But maintaining public trust is crucial in order to unlock the full potential that our data holds. That is why I’m pleased to have a Council advising us that represents the full range of community views, including those of civil society advocates, researchers and industry. 
“I congratulate all Council members on their appointment and trust they will bring diverse perspectives to the challenge of reforming Australia’s data system, in a safe and secure way. 
”The inaugural members of the Council are:
  • Associate Professor Nicholas Biddle, a well-known economist and extensive user of integrated public data, whose research includes examining how to deliver economic and social benefits to Australia’s Indigenous population; 
  • Ellen Broad, an independent consultant in open data, data sharing and artificial intelligence ethics; 
  • Paul McCarney, the Co-Founder of Data Governance Australia with more than 20 years’ experience in data, technology and digital business; 
  • Dr Joshua Meltzer, a Senior Fellow at the Brookings Institution in Washington D.C. who has examined the significance of the internet and cross-border data flows for international trade; 
  • Lauren Solomon, CEO of the Consumer Policy Research Centre, an independent, non‑profit, consumer research organisation; and 
  • Professor Fiona Stanley AC, 2003 Australian of the Year and distinguished research Professor of Paediatrics and Child Health at the University of Western Australia.
The Government members of the council are Australian Privacy Commissioner Angelene Falk, Australia’s Chief Scientist, Alan Finkel, and Australian Statistician David Kalisch.
Apart from the Great and Good it's a thin "range of community views', with a bias towards removal of restrictions on inter-agency data mining and sharing of data with non-government entities. The Council provides advice, rather than governance, and its engagement with the new National Data Commissioner will be watched with interest.

Announcement of the appointments coincides with consultation about "a Social Licence Framework to support APS agencies to communicate with the public to further build and maintain trust in the Government’s data and digital initiatives".

04 April 2019


Revisiting 'The Moral Magic of Consent' by Heidi M Hurd in (1996) 2 Legal Theory 121-146.

Hurd comments
 We regularly wield powers that, upon close scrutiny, appear remarkably magical. By sheer exercise of will, we bring into existence things that have never existed before. With but a nod, we effect the disappearance of things that have long served as barriers to the actions of others. And, by mere resolve, we generate things that pose significant obstacles to oth- ers' exercise of liberty. What is the nature of these things that we create and destroy by our mere decision to do so? The answer: the rights and obligations of others. And by what seemingly magical means do we alter these rights and obligations? By making promises and issuing or revoking consent. When we make promises, we generate obligations for ourselves, and when we give consent, we create rights for others. Since the rights and obligations that are affected by means of promising and consenting largely define the boundaries of permissible action, our exercise of these seemingly magical powers can significantly affect the lives and liberties of others. 
In this article, I explore one of these remarkable powers of personhood- the power of consent. In Section I, I will trace the source of this power to our commitment to autonomy. In Section II.A, I will argue that, insofar as autonomy resides in the ability to will the alteration of rights and duties, consent must essentially constitute an act of will--a subjective mental state akin to other morally and legally significant mens Tea. In Section II.B, I will narrow down the nature of this mens rea to specific intent; that is, to a purposive mental state possessed of propositional content. I will argue that the propositional content of the mens rea of consent is given by a fine- grained version of what I call "the first identity thesis," which holds that the mens rea of consent is essentially identical to the mens rea required for principal liability. To give consent, a victim or plaintiff must intend what the defendant must be culpable with regard to (namely, the material elements of the actus reus of the offense he would commit in the absence of consent).' In Section II.C, I will take tip the question of whether there is an actus reus of consent. I will argue that a person does all she needs to do in order to alter the moral rights or obligations of another simply by entertaining the mens rea of consent. However, I do not rule out the possibility that there may be prudential reasons for the law to require observable behavior that manifests that mens rea before according a defendant a legal defense of consent. 
Section III will address the background conditions under which prima facie consent possesses moral force. In this section, I argue that, just as a defendant who satisfies the mens rea and aclus reus conditions that define a prima facie offense may nevertheless have an excuse that makes him ineli- gible for praise or blame, so a plaintiff or victim who satisfies the mens rea and actus reus conditions of consent (if an actus reus condition is required) may nevertheless fail to give consent if she acts under circumstances that render her insufficiently autonomous to affect others' rights and obliga- tions. I argue, in this section, for what I call "the second identity thesis," which holds that the conditions under which prima facie consent is de- feated are identical to the conditions under which defendants are properly excused from moral blame, and, to the extent that the law mirrors morality, from legal liability. While the complexity of the moral and legal literature on excusing conditions renders my argument in this part necessarily cur- sory, I attempt to demonstrate the plausibility of the claim that prima facie consent should be deemed void only when a victim or plaintiff lacks the capacity or opportunity for meaningful choice concerning the defendant's actions. In Section III.A, I argue that a plaintiff or victim lacks the capacity for meaningful choice under just those conditions in which a defendant lacks such capacity-namely, under conditions of youth, insanity, (involun- tary) intoxication, and extreme provocation. In Section III.B, I further argue that a plaintiff or victim lacks the opportunity for meaningful choice under just those conditions in which a defendant lacks such an opportu- nity-that is, under conditions of non-natural duress. 
If the two identity theses that I argue for in this article are right, then the conditions of consent parallel the conditions of liability. We should hold victims and plaintiffs responsible for their choices under just the same conditions that we hold defendants responsible for theirs. Since it is persist- ently tempting to think that persons must exercise a more robust autonomy to give up their rights than to be held liable for invading the rights of others, the application of the two identity theses may strike many as counterintui- tive. While our commitment to equality would seemingly require us to consider plaintiffs responsible under the same conditions which we con- sider defendants responsible, the identity theses are at odds with a popular conservatism that supports unrestrictive avenues for plaintiffs to bring suit while simultaneously demanding that we lock up defendants and throw away the keys. If I am right, the double standard embedded in this popular conservatism should be resisted.
 Hurd continues
 There appear to be two distinct ways in which a person's consent can alter the morality of another person's actions. First, consent can function to transform the morality of another's conduct-to make an action right when it would otherwise be wrong. For example, consent turns a trespass into a dinner party; a battery into a handshake; a theft into a gift; an invasion of privacy into an intimate moment; a commercial appropriation of name and likeness into a biography. 
Second, consent can generate a permission that allows another to do a wrong act. When consent operates in this second manner, it does not morally transform a wrong act into a right act, but it grants another a right to do wrong. It conveys, in these circumstances, a "stained permis- sion," for the act done remains, in some sense, wrong, and hence, morally stained, but the consent defeats any rights on the part of others (including the person consenting) that the actor not do the wrong act. Consider, for example, the case of a woman who prefers to avoid motherhood by having successive abortions, rather than by using birth control. Suppose that her doctor has repeatedly tried to induce her to abandon this strategy, but, in the face of her refusal to do so, he has continued to perform abortions whenever she finds herself pregnant. Even the most committed pro-choice advocates can condemn the woman's choice to substitute abor- tion for birth control, for they can judge her wrong to prefer her own freedom from trivial inconveniences to the genuine interests that can be attributed to fetuses. Nevertheless, if such pro-choice advocates are right in thinking that the liberty interests possessed by such a woman outweigh the interests of the fetuses that she seeks to abort, then they must admit that her consent to the abortions makes her abortions morally permissible. That is, they must think that the woman has a right to be wrong, and hence, that when she gives her doctor consent to perform an abortion, the doctor does what is permissible. Since a permission constitutes a right (or, put more accurately, since a permission negates any rights on the part of others that one not do the permitted act), and since doing what one has a moral right to do cannot be thought morally wrong, all things considered, the doctor cannot be thought to have acted unjustifiably in performing the abortions. Whether it functions as a "moral transformative" or as a "stained per- mission," consent derives its normative power from the fact that it alters the obligations and permissions that collectively determine the rightness of others' actions. By consenting to another's touch, one puts that person at liberty to do what it was antecedently obligatory of her not to do. By consenting to another's intrusion onto one's land, one dispels a duty that antecedently obligated that person to keep off private property. By con- senting to another's use of one's name and likeness, one gives that person a right that previously did not exist, thus vitiating a duty that previously did exist. To have the ability to create and dispel rights and duties is what it means to be an autonomous moral agent. To respect persons as autonomous is to recognize them as the givers and takers of rights and duties. It is to conceive of them as very powerful moral magicians. The capacity for autonomy is the capacity for self-legislation. To recognize this capacity is one way to give meaning to the historic philosophical claim that persons are free inasmuch as they will their own moral laws. Persons will their own moral laws-that is, they alter the moral fabric, rearrange the moral furniture, redraw the moral landscape-when their consent to others' actions is taken to alter the morality of those actions, or when their promises regarding their own actions are taken to bind them in ways that alter the morality of their own future conduct.

Criminal Code Amendment (Sharing of Abhorrent Violent Material) Act 2019 (Cth)

Paul Keating memorably damned jellyback, an occupational disease of policymakers who focus on polls rather than the national interest.

We can see that disease with the embrace by the Government and Opposition of the Criminal Code Amendment (Sharing of Abhorrent Violent Material) Bill 2019 (Cth), passed by both chambers of the national legislature without substantive critique after a last-minute introduction just in time for announcement of the election.

Political opportunism and last-minute drafting often results, as it has in this instance, in inept legislation.

The Explanatory Memo states
The Christchurch terrorist attack on 15 March 2019 demonstrated the potential for live streaming and other video sharing platforms to be abused by extremist perpetrators to amplify their messages in the immediate aftermath of these incidents. In that case, the perpetrator streamed the attack in real-time. The video was then widely re-shared across a number of social media platforms. 
The Criminal Code Amendment (Sharing of Abhorrent Violent Material) Bill 2019 (Bill) will address significant gaps in Australia’s current criminal laws by ensuring that persons who are internet service providers, or who provide content or hosting services, take timely action in relation to abhorrent violent material that can be accessed using their services. This will ensure that online platforms cannot be exploited and weaponised by perpetrators of violence. 
This Bill will make amendments to the Criminal Code Act 1995 to introduce new offences to ensure that internet, hosting or content services are proactively referring abhorrent violent material to law enforcement, and that hosting and content services are expeditiously removing abhorrent violent material that is capable of being accessed within Australia.
To achieve this, the Bill would place obligations on:
  •  internet service providers, hosting service providers and content service providers to refer the details of abhorrent violent material that records or streams abhorrent violent conduct that has occurred, or is occurring, in Australia to the Australian Federal Police within a reasonable time of becoming aware of the existence of the material, and 
  • hosting service providers and content services providers to expeditiously remove from, or cease hosting on, their services abhorrent violent material that is reasonably capable of being accessed within Australia.
Abhorrent violent material is audio, visual, or audio-visual material that is recorded or streamed by the perpetrator(s) or their accomplices. Furthermore, it must be material that reasonable persons would regard as being offensive, and is recorded or streamed in the course of:
  • engaging in a terrorist act (involving serious physical harm or death, and otherwise within the meaning of section 100.1 of the Criminal Code), 
  • the murder of another person, 
  • the attempted murder of another person, 
  • the torture of another person, 
  • the rape of another person, or 
  • the kidnapping involving violence of another person.
The Bill would provide a new power to the eSafety Commissioner to issue a written notice to a provider of a content service or hosting service notifying them that abhorrent violent material can be accessed by or is hosted on their service. The effect of this notice, in relation to the offence for failure to remove or cease hosting, is to: 
  • put the provider on notice that their service is being used to access specified material 
  • put the provider on notice that the specified material that can be accessed on their service is abhorrent violent material 
  • create a presumption for the purpose of any future prosecution that the provider was reckless as to whether the specified material could be accessed from the provider’s service, and 
  • create a presumption for the purpose of any future prosecution that the provider was reckless as to whether the specified material that could be accessed on their service was abhorrent violent material.
The primary objectives of Schedule 1 to this Bill are to ensure that:
  • persons who are internet service providers, or who provide hosting or content services are reporting abhorrent violent material that records or streams abhorrent violent conduct that has occurred or is occurring in Australia to the Australian Federal Police (AFP), and  
  • persons who provide content services or hosting services are acting expeditiously to remove from or cease hosting abhorrent violent material on their services. 
Schedule 1 introduces new offences
that will apply to persons who provide internet, hosting or content services who fail to refer details of abhorrent violent material that records or streams conduct that has occurred, or is occurring, in Australia to the AFP within a reasonable time after becoming aware of the existence of the material. A maximum penalty of 800 penalty units will attach to these offences. These offences will apply to hosting services and content services irrespective of whether the person provides these services within or outside of Australia. 
A defence to these offences is that if there are reasonable grounds to believe the AFP is already aware of the details of the material, the obligation to refer those details will not apply. A defendant would bear the evidential burden to establish this belief. 
Schedule 1 will also introduce new offences that will apply to persons that provide content or hosting services who fail to remove or cease hosting abhorrent violent material that is capable of being accessed within Australia. A maximum penalty of 3 years imprisonment or 10,000 penalty units, or both, will attach to these offences where an individual is found guilty. Where a body corporate is found guilty, the maximum penalty that will apply will be the greater of 50,000 penalty units or 10% of the annual turnover of the body corporate. 
Defences to these offences will be available in respect of abhorrent violent material that is related to assisting law enforcement, reporting of news and current affairs, public policy advocacy, good faith artistic work, research purposes, court or tribunal proceedings, and the performance by public officials of their duties (and individuals assisting these officials in their duties). These offences will not apply to internet service providers or providers of relevant electronic services such as chat and instant messaging services.
Further offences under s 474.34  of the Criminal Code
will deter content service and hosting service providers from failing to take action in relation to abhorrent violent material that can be accessed using, or is hosted on, their services. These offences criminalise failure to expeditiously remove or cease hosting abhorrent violent material from their services. This regime would indirectly limit the nature and volume of content that end-users are able to access and share with each other. This is because content service hosts and content service providers that provide or host content would become more proactive in ensuring they expeditiously remove or ceasing hosting abhorrent violent material. This would engage the rights provided by article 17 [of the The right to freedom from interference in privacy and correspondence in article 17 of the ICCPR] because it may affect the nature and feasibility of correspondence between Australian citizens, albeit only for a narrow and specific type of objectionable material. 
The Bill’s objective is to reduce the impact and reach of abhorrent violent material sought by perpetrators who intend to spread their violent and extreme propaganda. The audio and visual content produced by perpetrators has objectionable value as it often constitutes propaganda or recruitment material for further criminal activity, prejudices the dignity the victims and has the potential to cause harm and distress to vulnerable sections of the community. ... 
The Bill is proportionate and not arbitrary because it applies a defence in respect of abhorrent violent material, contained in section 474.37. Section 474.37 would not prohibit the sharing of abhorrent violent material or the freedom of expression in all circumstances, instead it would limit how this expression is disseminated. The offences under section 474.34 would not apply if access to abhorrent violent material is necessary to: 
  • enforce the law 
  • investigate or monitor compliance with the law 
  • conduct proceedings in a court or tribunal 
  • conduct scientific, medical, academic or historical research 
  • report on news and current affairs in the public interest 
  • assist public officials in exercising their duties 
  • advocate for changes to laws, or 
  • develop, perform, exhibit or distribute, in good faith, artistic work.
The Act identifies the  Obligation of internet service providers and internet content hosts, with the Memo stating
The primary objective of Schedule 2 is to ensure that sufficiently high penalties are operating to deter internet services providers and internet content hosts from failing to refer details of child pornography material and child abuse material to the Australian Federal Police. 
Schedule 2 contains an amendment to section 474.25 of the Criminal Code it which would increase the maximum penalty that can be imposed for breach of this section from 100 penalty units to 800 penalty units.
Abhorrent violent material
is audio, visual, or audio-visual material that records or streams abhorrent violent conduct engaged in by one or more persons where a reasonable person would regard the material as being, in all the circumstances, offensive.
 Audio, visual, or audio-visual material is addressed as material intended
to capture live-streamed and recorded video footage, live-streamed and recorded audio recordings (which do not need to be accompanied by visual material), as well as photographs including still images taken from video footage.
For offensiveness ...
In determining whether material is ‘offensive’ for the purpose of meeting the requirements under the definition of abhorrent violent material, section 473.4 of the Criminal Code should be consulted. Section 473.4 sets out matters to be taken into account in deciding for the purposes of Part 10.6 (which will include the new offences under sections 474.33-34) whether reasonable persons would regard particular material as being in all the circumstances offensive. These include:
  • the standards of morality, decency and propriety generally accepted by reasonable adults; and 
  • the literary, artistic or educational merit (if any) of the material; and 
  • the general character of the material (including whether it is of a medical, legal or scientific character).
The definition of abhorrent violent material is not intended to capture footage of violent sporting events (for example, boxing), medical procedures, or consensual sexual acts that involve elements of violence. 
. Additionally, the material must be produced by a person who is, or by two or more persons each of whom is:
  • a person who engaged in the abhorrent violent conduct 
  • a person who conspired to engage in the abhorrent violent conduct 
  • a person who aided, abetted, counselled or procured, or was in any way knowingly concerned in, the abhorrent violent conduct, or 
  • a person who attempted to engage in the abhorrent violent conduct. 
. This requirement is intended to ensure that only material recorded or streamed by the perpetrator(s) and their accomplice(s) will be captured by the definition of abhorrent violent material. Material recorded or streamed by other persons, such as victims of the conduct, bystanders who are not complicit in the conduct, or media organisations, will not be considered to be caught by this definition even though such material may record or stream abhorrent violent conduct. Material recorded or streamed by persons who are not the perpetrator(s) or their accomplice(s) will therefore not be captured by the new offences under sections 474.33–474.34. 
. In some circumstances it may be difficult to determine whether material recorded or streamed by a third party has been produced by an accomplice or by an innocent bystander. However, the offences in the Bill will only be made out if the prosecution can prove that the person had reasonable grounds to believe that the material had been produced by a perpetrator(s) or their accomplice(s) (in relation to offences under sections 474.33), or that the person was reckless as to whether the material had been produced by a perpetrator(s) or their accomplice(s) (in relation to offences under section 474.34). Therefore, if a person believed on reasonable grounds that the material had not been produced by an accomplice, or the person was not aware that there was a substantial risk that material has been produced by an accomplice, the prosecution would be unlikely to prove this element of the offences.
Under a new subsection 474.31(2)
20. New  provides that, for the purposes of this section, it is immaterial whether the material has been altered. This subsection operates to ensure that abhorrent violent material material that has been edited into a new form but still includes its original content would continue to be abhorrent violent material. For example, video footage that is abhorrent violent material could be edited in respect of its length, edited to appear in colour or monochrome, or have unrelated images or text superimposed onto the footage. This content would remain abhorrent violent material to the extent it continued to fulfil the definition of abhorrent violent material.
A  new subsection 474.31(3) provides that it is
immaterial whether the abhorrent violent conduct was engaged in within or outside of Australia. This is consistent with the objective of the Bill in ensuring that content service providers and hosting service providers will proactively remove and cease hosting abhorrent violent material, no matter where the underlying conduct is committed.