12 April 2019

Ownership

'No One Owns Data' by Lothar Determann in (2019) 70(1) Hastings Law Journal 1-44 comments
Businesses, policy makers, and scholars are calling for property rights in data. They currently focus on the vast amounts of data generated by connected cars, industrial machines, artificial intelligence, toys and other devices on the Internet of Things (IoT). This data is personal to numerous parties who are associated with the connected device, and there are many others are also interested in this data. Various parties are actively staking their claims to data, as they are mining the fuel of the digital economy. Stakeholders in digital markets often frame claims, negotiations and controversies regarding data access as one of ownership. Businesses regularly assert and demand that they own data. Individual data subjects also assume that they own data about themselves. Policy makers and scholars focus on how to redistribute ownership rights to data. Yet, upon closer review, it is very questionable whether data is – or should be – subject to any property rights. 
This Article unambiguously answers the question in the negative, both with respect to existing law and future lawmaking in the United States and the European Union, jurisdictions with notably divergent attitudes to privacy, property and individual freedoms. Data as such, that is, the content of information, exists conceptually separate from works of authorship and databases (which can be subject to intellectual property rights), physical embodiments of information (data on a computer chip, which can be subject to personal property rights) and physical objects or intangible items to which information relates (a dangerous malfunctioning vehicle to which the warnings on road markings or a computer chip relate). Lawmakers have granted property rights to different persons regarding works of authorship, databases, land, and chattels to incentivize investments and improvements in such items. However, this purpose does not exist with respect to data. Individual persons, businesses, governments and the public at large have different interests in data and access restrictions. These interests are protected by an intricate net of existing laws, which deliberately refrain from granting property rights in data. Indeed, new property rights in data are not suited to promote better privacy or more innovation or technological advances, but would more likely suffocate free speech, information freedom, science and technological progress. The rationales for propertizing data are thus not compelling and are outweighed by the rationales for keeping the data ‘open’. No new property rights need to be created for data..

Certification Marks

"Anglo and E.U. Frameworks for Certification and Collective Trade Marks' by Graeme Austin in Ginsburg and Calboli (eds) Cambridge Handbook on International and Comparative Trademark Law (Cambridge University Press, Forthcoming) comments
Ordinary trademarks promise consistent quality. This promise is the quid pro quo for the trademark proprietors’ right to control the goodwill symbolized by the mark. Subject to external regulatory controls (safety standards, truth in labeling laws, etc.), it is largely up to the trademark proprietor to set those standards. If a firm wants to attach its brand to a chocolate product containing low levels of cocoa butter, that is its prerogative. It will be motivated to do so if consumers signal their approval with purchases. Certification trademarks, in contrast, promise consumers consistency with a pre-defined set of standards. This chapter, to be published in the Cambridge Handbook on International and Comparative Trademark Law (Ginsburg and Calboli eds.) discusses certification and collective marks in the Anglo tradition. The Anglo tradition will be illustrated by the provisions in the U.K. Trade Marks Act 1994, but reference will be made to the laws of other common law jurisdictions where there are salient distinctions. The chapter also outlines the new European Union framework. It discusses some of the important characteristics of these marks, focusing on the application of the distinctiveness standard for certification marks as well as any relevant controls on the administration of this species of trademark. Finally, the chapter briefly considers infringement issues. It concludes with some brief reflections on the social role of certification trademarks as “private governance” vehicles.

Autonomous Vehicles, Liability and Incentives

'Automated Vehicles and Manufacturer Responsibility for Accidents: A New Legal Regime for a New Era' by Kenneth S Abraham and Robert L Rabin in (2019) 105 Virginia Law Review 127 comments
Over a century ago, industrialization and its accompanying increase in workplace injuries were placing substantial pressures on the tort system and its ability to compensate the victims of these injuries. Eventually, the interests of labor and management came together, giving rise to a new administrative compensation system. Unlike tort remedies, this new scheme imposed strict financial responsibility on employers for work-related injuries to their employees. This system of workers’ compensation is still the most far-reaching tort reform ever adopted – promoting safety and compensating for injuries more effectively than tort did both at the time and today. Workers’ compensation has its flaws, but there is no significant desire on anyone’s part to go back to tort. 
We are on the verge of another new era, requiring yet another revision to the legal regime. This time, it is our system of transportation that will be revolutionized. Over time, manually driven cars are going to be replaced by automated vehicles. The new era of automated vehicles will eventually require a legal regime that properly fits the radically new world of auto accidents. The new regime should promote safety and provide compensation both more sensibly and more effectively than what could be done under existing tort doctrines governing driver liability for negligence and manufacturer liability for product defects. Like labor and management a century ago, auto manufacturers, consumers, and the public at large – often currently at odds about the tort system – will need to have their interests come together if the new era of automated transportation is to be governed by an adequate legal regime. 
Any new approach will have to deal with the long and uneven transition to automated technology, impose substantial but appropriate financial responsibility for accidents on the manufacturers of highly automated vehicles, and provide satisfactory compensation to the victims of auto accidents in the new era. This Article develops and details our proposal for an approach that would accomplish these goals.
'Automatorts: How Should Accident Law Adapt to Autonomous Vehicles? Lessons from Law and Economics' (Hoover Institution Working Group on Intellectual Property, Innovation, and Prosperity, 2019) by Eric Talley comments
The introduction of autonomous vehicles (AVs) onto the nation’s motorways raises important questions about our legal system’s adaptability to novel risks and incentive problems presented by such technology. A significant part of the challenge comes in understanding how to navigate the transition period, as AVs interact routinely with conventional human actors. This paper extends a familiar multilateral precaution framework from the law and economics literature by analyzing interactions between algorithmic and human decision makers. My analysis demonstrates that several familiar negligence-based rules (for precautions and product safety) are able to accommodate such interactions efficiently. That said, a smooth transition will likely require substantial doctrinal/legal reforms in certain states, as well as a more general reconceptualization of fault standards across all states – not only for AVs but also for for human actors themselves.
The Optimal Agent: The Future of Autonomous Vehicles and Liability Theory' by Brian Seamus Haney comments
Autonomous Vehicles (“AVs”) are rapidly disrupting the $4 trillion auto industry. Indeed, questions surrounding AV regulation are some of the most important to be answered in the Twenty-First Century. Yet, legislators have yet to address or even identify some of the most critical issues relating to AV regulation. 
This paper explains the unique issues that deep reinforcement learning systems pose for AV technology, policy, and law. Additionally, this paper identifies two important regulatory problems that legislators and scholars need to address in the context of AV development. Legal scholars have made clear that there is a demanding need for some sort of regulatory system for AVs. However, those arguments focus on short term regulation and generally misunderstand the evolutionary rate of AV technology. This paper takes an informatics based approach to analyzing issues in AV regulation with a specific emphasis on the technical aspects of AV systems. Further, this paper discusses and explains the formal models that are currently being used as a foundation for AV development. Ultimately, AV technology will change the way humans move throughout the world and legislators must prepare immediately for the endeavor ahead in regulating AVs.
'Who’s Driving That Car?: An Analysis of Regulatory and Potential Liability Frameworks for Driverless Cars' by Madeline Roe in (2019) 60 Boston College Law Review 315 comments
Driverless, or autonomous, cars are being tested on public roadways across the United States. For example, California implemented a new regulation in 2018 that allows manufacturers to test driverless cars without a person inside the vehicle, so long as the manufacturers adhere to numerous requirements. The emergence of these vehicles raises questions about accident liability and the reach of state regulation regarding driverless cars. To address these questions, it is beneficial to look at the liability framework for another artificial intelligence system, such as surgical robots. This Note will explore possible frameworks of liability before arguing in support of further regulation of driverless cars and hypothesize that the liability for driverless car accidents will likely shift from the driver to the manufacturer. 
'The Case Against Taxing Robots' by Robert D. Atkinson of the Information Technology and Innovation Foundation comments 
 A disturbing trend in the world of public policy in recent years has been the extent to which fads and groupthink now shape public debates and galvanize support for ill-advised ideas and proposals. In the first phase of this process, someone — often a person of some notoriety, but not necessarily expertise — puts forth a new idea or claim, which is then amplified by a media increasingly focused on marketing the next new thing. Then comes a wave of articles, speeches, blogs, op-eds, and of course TED Talks, all providing supporting “evidence” and arguments for why the initial idea is the “best thing since sliced bread.” Voila: What begins as a loopy, even harmful, idea is now all the rage. Once this critical point of no return is reached — when “everyone” knows something is true — policymakers have only a short distance left to travel to turn what appears to be an inspired analysis into actual law. 
In the subcategory of science, technology, and innovation policy, there is no better case in point than today’s increasingly popular view that governments should increase taxes on capital equipment. Or, as the advocates say, “It’s time to tax the robots.” This idea has been around for a while, and gained considerable traction in 2017 when Microsoft founder Bill Gates argued, “At a time when people are saying that the arrival of that robot is a net loss because of displacement, you ought to be willing to raise the tax level and even slow down the speed of that adoption somewhat.” After all, as a technology pioneer and billionaire, Bill Gates is anything but a tin foil hat-wearing Luddite. Since then, the calls for taxing those job-killing robots have become a veritable tidal wave. One can barely go a week without reading yet another article or comment on the topic. 
Robot taxers make three main arguments in support of their position: As this paper will show, all three arguments are wrong. At the end of the day, robot taxers are suffering from and contributing to a techno-panic over jobs. “Help!” they cry, “Robots are coming for our jobs! We can’t just eliminate any policies that support automation; we need to proactively erect barriers to it.” In fact, moving in that direction would be the worst possible thing for policymakers to do. Given that the U.S. economy has been in an unprecedented productivity growth slump for more than a decade, and the massive baby boom retirement wave is rising, economies desperately need faster productivity growth to have any hope of increasing after-tax wages faster than some minimal rate of growth. The last thing policymakers should do is reduce the incentive for companies to invest in new machinery and equipment, as that would slow down needed productivity growth. Instead, with first-year expensing provisions set to expire automatically at the end of 2022, one of the best things Congress could do to ensure strong growth in the future would be to make that provision permanent and then couple it with an investment tax credit.

Corporations

'The Purposive Transformation of Company Law' (LSE Legal Studies Working Paper No 4/2019) by David Kershaw and Edmund-Philipp Schuster comments
In December of 2018 a potentially transformative event occurred within UK corporate law and governance with the coming into force of the Revised Corporate Governance Code and its requirement that ‘the board should establish the company’s purpose’. This article explores how the Code’s references to ‘company purpose’ should best be understood, arguing, through a process of elimination, that it is an animated mission-purpose idea about what the company does; an animated idea that can both transform the nature of corporate life and offer pathways to value generation unavailable to non-purposeful companies. But in embracing purpose the Code invites the question: does the UK offer companies the legal and non-legal conditions to support and nurture purposeful companies? The article argues that although UK company law is theoretically capable of providing a purposeful legal ecology it is prevented from doing so by a constraining legal normality which is supported by, inter alia, investor inertia arising from the incentive structures of modern investment vehicles and the stickiness of default rules. Such practical barriers mean that legal reforms are required to enable company purpose to evolve into a meaningful concept, rather than an empty phrase. The article explores the nature of such reforms and the possible theoretical and empirical objections to them, which it rejects.

Data Flows in Canada

The Office of the Privacy Commissioner of Canada (OPC) - historically less forward-looking that some of Canada's provincial commissioners but much ahead of the OAIC in Australia - is conducting a consultation on transborder dataflows. That consultation is interesting as the OPC moves forward through a regime in which interpretation by the Office and courts is as important as the statutes.

The OPC states that it
 is revisiting its policy position on transborder data flows under the Personal Information Protection and Electronic Documents Act (PIPEDA). This includes not only cross border data transfers between controllers and processors, but also other cross border disclosures of personal information between organizations.
The OPC is committed to consulting with stakeholders on changes to its policy positions. This document aims to explain how the OPC’s approach on cross border data flows, including transborder transfers for processing, has evolved and to solicit feedback from interested parties. ...
Under PIPEDA, any collection, use or disclosure of personal information requires consent, unless an exception to the consent requirement applies. In the absence of an applicable exception, the OPC’s view is that transfers for processing, including cross border transfers, require consent as they involve the disclosure of personal information from one organization to another. Naturally, other disclosures between organizations that are not in a controller/processor relationship, including cross border disclosures, also require consent.
For consent to be valid, individuals must be provided with clear information about any disclosure to a third party, including instances when they are located in another country, and the associated risks. When determining the form of consent (express or implied), companies will need to consider the sensitivity of the information and individuals’ reasonable expectations. We believe individuals would generally expect to know whether and where their personal information may be transferred or otherwise disclosed to an organization outside Canada.
Organizations that have obtained consent to transfer an individual’s personal information across a border in the context of processing will generally remain accountable for the information following its transfer. As stated in PIPEDA’s accountability principle (4.1), the controller will still be required to use contractual or other means to provide a comparable level of protection while the information is being processed.
The OPC’s 2009 guidelines stated there are different approaches to protecting personal information that is being transferred for processing. The guidelines went on to suggest that “in contrast to (the European Union’s) state-to-state approach, Canada has, through PIPEDA, chosen an organization-to-organization approach that is not based on the concept of adequacy.”
While it is true that Canada does not have an adequacy regime and that PIPEDA in part regulates cross border data processing through the accountability principle, nothing in PIPEDA exempts data transfers, inside or outside Canada, from consent requirements. Therefore, as a matter of law, consent is required. Our view, then, is that cross-border data flows are not only matters decided by states (trade agreements and laws) and organizations (commercial agreements); individuals ought to and do, under PIPEDA, have a say in whether their personal information will be disclosed outside Canada.
Organizations are free to design their operations to include flows of personal information across borders, but they must respect individuals’ right to make that choice for themselves as part of the consent process. In other words, individuals cannot dictate to an organization that it must design its operations in such a way that personal information must stay in Canada (data localisation), but organizations cannot dictate to individuals that their personal information will cross borders unless, with meaningful information, they consent to this.
We have considered the implications of our position in the context of cross-border trade and the importance of information flows for the purpose of facilitating commerce. In our view, this position is consistent with Canada’s international trade obligations. ...
Stakeholders are encouraged to review the following key points which expand upon our position:
Consent
A company that is disclosing personal information across a border, including for processing, must obtain consent. Individuals must be given the opportunity to exercise their legal right to consent to disclosures across borders, regardless of whether these are transfers for processing or other types of disclosures. When information is disclosed between organizations, absent an exemption in PIPEDA, consent is required.
Under PIPEDA, the form of consent required depends on the sensitivity of the information at issue and the individual’s reasonable expectations in the circumstances. Underlying the contextual analysis of both sensitivity and reasonable expectations is the risk of harm to the individual. Where there is a meaningful risk that a residual risk of harm will materialize and will be significant, consent should be express, not implied.
It is the OPC’s view that individuals would reasonably expect to be notified if their information was to be disclosed outside of Canada and be subject to the legal regime of another country. Whether this affects their decision to enter into a business relationship with an organization or to forego a product or service should be left to the discretion of the individual.
Individuals must be informed of any options available to them if they do not wish to have their personal information disclosed across borders. As we state in our consent guidance, organizations must make available to individuals a clear and easily accessible choice for any collection, use or disclosure that is not necessary to provide the product or service. Depending on the circumstances, a transfer for processing may well be integral to the delivery of a service and in such cases, organizations are not obligated to provide an alternative. Nonetheless, by being provided with clear and adequate information about the nature, purpose and consequence of any disclosure of their personal information across borders, individuals will be able to make an informed decision about whether to consent to the disclosure and therefore do business with the organization.
Accountability
When disclosing personal information to a third party for processing, a company does not relinquish control of the information. That being said, business relationships can be very complex and determining which organization has personal information “under its control” needs to be assessed on a case-by-case basis, and informed by factors such as relevant contractual arrangements, commercial realities, as well as evolving business models and shifting roles. For instance, if an organization that is a processor uses or discloses the same personal information for other purposes, it is no longer simply processing the personal information on behalf of another organization and is thereby acting as an organization “in control” of the information.
An organization that processes personal information on behalf of another organization may still have obligations under the Act in respect of the personal information in its possession or custody, as an organization that collects, uses or discloses personal information in the course of commercial activities.
The OPC contextualises the consultation by explaining that the Personal Information Protection and Electronic Documents Act (PIPEDA) applies to transfers of personal information to a third party, including a third party operating outside of Canada, for processing.
As the legislation itself states, PIPEDA is intended to "support and promote electronic commerce by protecting personal information that is collected, used or disclosed in certain circumstances?" This acknowledges that proper protection of personal information both facilitates and promotes commerce by building consumer confidence. Today's globally interdependent economy relies on international flows of information. These cross-border transfers do raise some legitimate concerns about where personal information is going as well as what happens to it while in transit and after it arrives at some foreign destination. Consumer confidence will be enhanced, and trust will be fostered, if consumers know that transfers of their personal information are governed by clear and transparent rules. There are different approaches to protecting personal information that is being transferred for processing. European Union member states have passed laws prohibiting the transfer of personal information to another jurisdiction unless the European Commission has determined that the other jurisdiction offers "adequate" protection for personal information. 
In contrast to this state-to-state approach, Canada has, through PIPEDA, chosen an organization-to-organization approach that is not based on the concept of adequacy. PIPEDA does not prohibit organizations in Canada from transferring personal information to an organization in another jurisdiction for processing. However, under PIPEDA, organizations are held accountable for the protection of personal information transfers under each individual outsourcing arrangement. The OPC can investigate complaints and audit the personal information handling practices of organizations. T 
he key is Principle 1 of the CSA Model Code for the Protection of Personal Information, which forms Schedule 1 of PIPEDA. 
Principle 1 addresses the balance between the protection of personal information of individuals and the business necessity of transferring personal information for various reasons, including the availability of service providers, efficiency and economy. 
Principle 1 places responsibility on an organization for protecting personal information under its control. Principle 4.1.3 of Schedule 1 of PIPEDA specifically recognizes that personal information may be transferred to third parties for processing. It also requires organizations to use contractual or other means to "provide a comparable level of protection while the information is being processed by the third party." 
Principle 1 states: "An organization is responsible for personal information in its possession or custody, including information that has been transferred to a third party for processing. The organization shall use contractual or other means to provide a comparable level of protection while the information is being processed by a third party."  
What Do These Terms in Principle 1 Mean? 
Transfer "Transfer" is a use by the organization. It is not to be confused with a disclosure. When an organization transfers personal information for processing, it can only be used for the purposes for which the information was originally collected. A simple example is the transferring of personal information for the purpose of processing payments to customers. Or to use another example, an internet service provider may transfer personal information to a third party to ensure that technical support is available on a 24/7 basis. Increasingly, organizations outsource processes to third parties. In many cases, this involves the transfer of personal information. In the context of this document, when we refer to outsourcing, we are referring specifically to outsourcing that involves personal information. PIPEDA does not distinguish between domestic and international transfers of data. 
Processing "Processing" is interpreted to include any use of the information by the third party processor for a purpose for which the transferring organization can use it. 
Comparable Level of Protection "Comparable level of protection" means that the third party processor must provide protection that can be compared to the level of protection the personal information would receive if it had not been transferred. It does not mean that the protections must be the same across the board but it does mean that they should be generally equivalent. 
What Must Organizations Do? 
As the principle suggests, the primary means by which an organization may protect personal information that is sent to a third party for processing is through a contract. Regardless of where the information is being processed - whether in Canada or in a foreign country - the organization must take all reasonable steps to protect it from unauthorized uses and disclosures while it is in the hands of the third party processor. 
The organization must be satisfied that the third party has policies and processes in place, including training for its staff and effective security measures, to ensure that the information in its care is properly safeguarded at all times. It should also have the right to audit and inspect how the third party handles and stores personal information, and exercise the right to audit and inspect when warranted. 
The OPC recognizes the complexity of the electronic world and understands that it is often impossible for an organization to know precisely where information is flowing while in transit. But that being said, the law is clear on where accountability lies and organizations must in their own best interests, as well as those of their customers, do what they can to protect the information. 
Why Comply? Your customers expect you to be transparent about your practices: they will ask. These are best practices: following them may give you a competitive advantage. The law requires you to protect personal information while it is in the hands of a third party processor: failure to comply could result in complaints and legal action. What the organization cannot do through contract - or indeed by any other means - is to override the laws of a foreign jurisdiction. So, what can an organization do to fulfill its obligations under Principle 4.1.3 of Schedule 1 of PIPEDA when it comes to transfers to foreign jurisdictions with respect to the issue of access to the personal information by foreign courts, law enforcement and national security authorities? 
In an investigation into a complaint involving outsourcing to a U.S. firm by CIBC Visa, the OPC found CIBC to be in compliance with PIPEDA. The OPC relied on the Office of the Office of the Superintendent of Financial Institutions' guidelines for federally regulated financial institutions. Those guidelines advise organizations to pay particular attention to the legal requirements of the jurisdiction in which the third party processor operates, as well the "potential foreign political, economic and social conditions, and events that may conspire to reduce the foreign service provider's ability to provide the service, as well as any additional risk factors that may require adjustment to the risk management program." While these guidelines set a high standard for the protection of sensitive financial information by financial institutions, other organizations transferring sensitive personal information would also be well-advised to take note of them. We assume that any organization looking at outsourcing to another jurisdiction will take a number of factors into account – for example, potential cost savings, the ability to provide better customer service, the availability of specialized expertise outside the company and other practical considerations. 
In the case of outsourcing to another jurisdiction, PIPEDA does not require a measure by measure comparison by organizations of foreign laws with Canadian laws. But it does require organizations to take into consideration all of the elements surrounding the transaction. The result may well be that some transfers are unwise because of the uncertain nature of the foreign regime or that in some cases information is so sensitive that it should not be sent to any foreign jurisdiction. Organizations need to be diligent in all their dealings with foreign third party processors. What Should Individuals Expect? Individuals should expect that their personal information is protected, regardless of where it's processed. Organizations transferring personal information to third parties are ultimately responsible for safeguarding that information. Individuals should expect transparency on the part of organizations when it comes to transferring to foreign jurisdictions. ... 
 Summary of Key Findings 
The OPC has made a number of findings related to cross-border transfers of personal information in its complaint investigations over the past several years:
  • PIPEDA does not prohibit organizations in Canada from transferring personal information to an organization in another jurisdiction for processing. 
  • PIPEDA does establish rules governing transfers for processing. A transfer for processing is a "use" of the information; it is not a disclosure. Assuming the information is being used for the purpose it was originally collected, additional consent for the transfer is not required. 
  • The transferring organization is accountable for the information in the hands of the organization to which it has been transferred. 
  • Organizations must protect the personal information in the hands of processors. The primary means by which this is accomplished is through contract. 
  • No contract can override the criminal, national security or any other laws of the country to which the information has been transferred. 
  • It is important for organizations to assess the risks that could jeopardize the integrity, security and confidentiality of customer personal information when it is transferred to third-party service providers operating outside of Canada. 
  • Organizations must be transparent about their personal information handling practices. This includes advising customers that their personal information may be sent to another jurisdiction for processing and that while the information is in another jurisdiction it may be accessed by the courts, law enforcement and national security authorities.

CDR and comparison site

The ACCC has taken timely action as we head towards implementation of the Consumer Data Right, initiating litigation against major comparison site iSelect. It is seeking pecuniary penalties, injunctions, declarations, correctives and costs.

iSelect is a commercial price comparator which compares utilities, insurance and finance productsvisited by over 9 million Australians in the 2017 FY, with recommendations to over 6 million consumers over all categories. The ACCC has announced the launch proceedings in the Federal Court against iSelect Limited, for misleading or deceptive conduct and false or misleading representations in relation to its energy plan comparison service (in operation since 2012).

 The ACCC alleges that since at least November 2016, iSelect has claimed consumers using its website would benefit from iSelect comparing all plans available from its partner retailers in a specific location. During this period, iSelect also claimed that it would recommend the most competitive plan to consumers.

 The ACCC alleges iSelect did not compare all available plans and did not necessarily recommend the most competitive plan, instead limited the number of plans it compared based on the commercial arrangement it had with retailers. iSelect did not disclose this information to consumers who used its service.
 “iSelect told consumers they would help them compare all energy plans available in their area from all their partner retailers,” ACCC Chair Rod Sims said. 
“But we claim they were actually favouring some partner retailers over others, such as those on its ‘Preferred Partner Program’ who were allowed to have more plans available on the iSelect website that excluded and targeted certain consumers. These preferred retailers paid iSelect higher commissions.”
The ACCC alleges some partner retailers offered cheaper plans that were not made available in iSelect’s comparison results. These cheaper plans were accessible via the Australian Government’s Energy Made Easy website, which shows all energy plans available in a consumer’s area.
 “We were particularly concerned with the issues raised about iSelect’s claims because we know consumers go to comparison sites to get the best deal, and for an impartial and objective comparison of complex energy plans. We allege they were not getting that so they may be paying more for electricity than they should be,” Mr Sims said. 
“When comparison sites mislead consumers, it further adds confusion to the already complicated retail energy market, denying people an informed choice on what is often a major household expense.” 
“Free commercial comparison sites are often driven by business relationships with retailers that impact their recommendations. This needs to be very clearly disclosed to consumers so they can make an informed decision about whether to use these services,” Mr Sims said. 
“The ACCC’s Retail Electricity Pricing Inquiry recommended a mandatory code for comparator websites that, if it was in place, would have meant that iSelect would have been unable to implement its ‘Preferred Partner Program’ in the way the ACCC alleges they did.” 

Discrimination, Transparency and Algorithms

'[Un]Usual Suspects: Deservingness, Scarcity, and Disability Rights' by Doron Dorfman in (2019) UC Irvine Law Review comments
 People encounter disability in public spaces where accommodations are granted to those who fit into this protected legal class. Nondisabled people desire many of these accommodations—such as the use of reserved parking spots or the ability to avoid waiting in a queue—and perceive them as “special rights” prone to abuse. This apprehension about the exploitation of rights by those pretending to be disabled, which I refer to as “fear of the disability con,” erodes trust in disability law and affects people with disabilities both on an individual level and a group level. Individuals with disabilities are often harassed or questioned about their identity when using their rights. As a group, disabled people are forced to navigate through new defensive policies that seek to address widely held perceptions of fakery and abuse. This Article uses a series of survey experiments conducted with multiple nationally representative samples totaling more than 3,200 Americans along with 47 qualitative in-depth interviews. It brings to light the psychological mechanism of suspicion and identifies factors that motivate fear of the disability con in public spaces. Findings counterintuitively suggest that the scarcity of the desired public resources has no effect on the level of suspicion against potential abusers. Rather, it is the sense of deservingness (or lack thereof) in the eyes of others that drives suspicion. Using these empirical findings, as well as analysis of relevant case law, this Article outlines the normative implications for the design and implementation of laws affecting millions of individuals. Furthermore, this research contributes to our understanding of how rights behave on the ground, both with regard to disability and to myriad distributive policies.
'Access to Algorithms' by Hannah Bloch-Wehba (in (2019) Fordham Law Review (Forthcoming) comments
 Federal, state, and local governments increasingly depend on automated systems — often procured from the private sector — to make key decisions about civil rights and civil liberties. When individuals affected by these decisions seek access to information about the algorithmic methodologies that produced them, governments frequently assert that this information is proprietary and cannot be disclosed. 
Recognizing that opaque algorithmic governance poses a threat to civil rights and liberties, scholars have called for a renewed focus on transparency and accountability for automated decision making. But scholars have neglected a critical avenue for promoting public accountability and transparency for automated decision making: the law of access to government records and proceedings. This Article fills this gap in the literature, recognizing that the Freedom of Information Act, its state equivalents, and the First Amendment provide unappreciated legal support for algorithmic transparency. 
The law of access performs three critical functions in promoting algorithmic accountability and transparency. First, by enabling any individual to challenge algorithmic opacity in government records and proceedings, the law of access can relieve some of the burden otherwise borne by parties who are often poor and under-resourced. Second, access law calls into question government’s procurement of algorithmic decision making technologies from private vendors, subject to contracts that include sweeping protections for trade secrets and intellectual property rights. Finally, the law of access can promote an urgently needed public debate on algorithmic governance in the public sector.
'Contesting Automated Decisions: A View of Transparency Implications" by Emre Bayamlioglu in (2019) 4 European Data Protection Law Review 433-446 comments
The paper intends to identify the essentials of a ‘transparency model’ which aims to analyse automated decision-making systems not by the mechanisms of their operation but rather by the normativity embedded in their behaviour/action. First, transparency-related concerns and challenges inherent in ML are conceptualised as “informational asymmetries”. Under a threefold approach, this part explains and taxonomises how i) intransparencies and opacities, ii) epistemological flaws (spurious or weak causation), and iii) biased processes inherent in machine learning (ML) create cognitive obstacles on the side of the data subject in terms of contesting automated decisions. Concluding that the transparency needs of an effective contestation scheme go much beyond the disclosure of algorithms or other computational elements, the following part explains the essentials of a rule-based ‘transparency model’ as: i) the data as ‘decisional cues/input’; ii) the normativities contained both at the inference and decisional (rule-making) level; iii) the context and further implications of the decision; iv) the accountable actors. This is followed by the identification of certain impediments at the technical, economical and legal level regarding the implementation of the model. Finally, the paper provides theoretical guidance as the preliminaries of a ‘contestability scheme’ which aims for compliance with transparency obligations such as those provided under the EU data protection regime (the GDPR).
'Binary Governance: Lessons from the GDPR's Approach to Algorithmic Accountability' by Margot Kaminksi in (2019) 92(6) Southern California Law Review comments
Algorithms are used to make significant decisions about individuals, from credit determinations to hiring and firing. But they are largely unregulated under U.S. law. I identify three categories of concerns behind calls for regulating algorithmic decision-making: dignitary, justificatory, and instrumental. Dignitary concerns lead to proposals that we regulate algorithms to protect human dignity and autonomy; justificatory concerns caution that we must assess the legitimacy of algorithmic reasoning; and instrumental concerns lead to calls for regulation to prevent consequent problems such as error and bias. No one regulatory approach can effectively address all three. 
I therefore propose a two-pronged approach to algorithmic governance: a system of individual due process rights, combined with collaborative governance (the use of private-public partnerships to govern). Only through this binary approach can we effectively address all three concerns raised by algorithmic, or AI, decision-making. The interplay between the two approaches will be complex; sometimes the two systems will be complimentary, and at other times they will be in tension. I identify that the EU’s General Data Protection Regulation (GDPR) is one such binary system. I explore the extensive collaborative governance aspects of the GDPR and how they interact with its individual rights regime. Understanding the GDPR in this way both illuminates its strengths and weaknesses, and provides a model for how to construct a better binary governance regime for algorithmic, or AI, decision-making.

Tudor Metadata

'Metadata, Surveillance and the Tudor State' by Ruth Ahnert and Sebastian E Ahnert in (2019) 47 History Workshop Journal 27–51 comments
In 2013 the whistleblower Edward Snowden revealed a surveillance programme called PRISM, within which the United States National Security Agency (NSA) had accessed and analysed the metadata from phone calls, emails, and other digital data stored by Verizon and nine internet companies. This article seeks to show that surprisingly deep insights can be gleaned from metadata by applying a range of easily available network-analysis algorithms to a body of metadata generated by another government. The source is the British State Papers (now digitized at State Papers Online), which contain 132,747 unique letters from the period between the accession of Henry VIII and the death of Elizabeth I. An analysis of this archive shows us that we can observe not only broad patterns of communication but also anomalous behaviour, and can make predictions about people likely to be trading in conspiracies or illicit intelligence. These discoveries demonstrate the power of such methods for the study of history. This power, however, is merely a shadow of that wielded by government bodies and private companies and therefore the findings also act as a warning about the potential uses and abuses of the metadata we generate with each of our digital communications.
The article begins
‘We kill people based on metadata.’ General Michael Hayden, former director of the NSA, 2014. 
On 5 June 2013 the Guardian newspaper published an exclusive article, based on information leaked to them by Edward Snowden, that revealed a large-scale effort by the United States National Security Agency to collect domestic email and telephone metadata from the US telecommunications company Verizon. In the following days it would emerge that this was part of a more widespread and systematic programme, named Prism, which allowed the Agency to gain access from nine Internet companies to a wide range of digital information on foreign targets operating outside the United States. The NSA defended itself against allegations that its activities contravened the Fourth Amendment by arguing the difference between data and metadata: that the contents of the phone calls, emails and other communications remained private. Citing a Supreme Court ruling from 1979, however, they maintained that Americans had no reasonable expectation that the metadata produced by their telephone and Internet communications – the names of those making and receiving such communications, the times and dates when they were made, and the geo-location of each party – should remain private.  Now, in the era of the Trump administration, there is renewed unease. Trump’s appointment to head the CIA, Mike Pompeo, has previously stated that ‘Congress should pass a law re-establishing collection of all metadata, and combining it with publicly available financial and lifestyle information into a comprehensive, searchable database’. 
To a layperson it is perhaps unclear why this should be of concern. How much can metadata really reveal? This essay seeks to show that surprisingly deep insights can be gleaned from metadata by applying a range of easily available network analysis algorithms to a body of metadata collected by another government. Our source is the State Papers held at the British National Archives, specifically the correspondence held in this archive dating from the accession of Henry VIII in 1509 until the death of Elizabeth I in 1603, which comprises 132,747 unique letters (duplicates have been excluded). Analysis of this archive shows that we can observe not only broad patterns of communication but also anomalous behaviour, and can make predictions about people likely to be trading in conspiracies or illicit intelligence. These discoveries demonstrate the power of such methods for the study of history. This power, however, is merely a shadow of that wielded by government bodies and private companies. The following pages also act as a warning, therefore, about the potential uses and abuses of the metadata we generate with each of our digital communications.

Geoblocking

'A Hater's Guide to Geoblocking" by Peter K Yu in (2019) 25 Boston University Journal of Science and Technology Law comments
Geoblocking restricts access to online content based on the user's geographical location. Territorially based access control is strongly disliked, if not passionately hated, by those who travel abroad frequently as well as those who consume a considerable amount of foreign content. While the past has seen the use of geoblocking as technological self-help, such a technique has now received growing support from policymakers and judges. 
Commissioned for a symposium on "Intellectual Property in a Globalized Economy: United States Extraterritoriality in International Business," this article begins by briefly recounting five sets of arguments against geoblocking. The article then draws on the latest developments in Europe and at the World Intellectual Property Organization. It reiterates the need for copyright holders to adopt strategies to disseminate copyrighted content at the global level. 
The second half of the article responds to the copyright industries' increasing demands for the use of geoblocking to protect this valuable content. Although the discussion recognizes the continuously geographically segmented markets, it calls for a more appropriate balance between proprietary control and user access. Specifically, the article identifies five distinct ways for policymakers, judges and rights holders to shape geoblocking remedies.

11 April 2019

Exclusion Zones, Non-interference and the Implied Freedom of Political Communication

IHaving written about privacy and constitutional aspects of the ACT and Victorial exclusion zone statutes I am unsurprised by yesterday's High Court judgment in Kathleen Clubb v Alyce Edwards and Anor; John Graham Preston v Elizabeth Avery and Anor [2019] HCA 11

The High Court unanimously rejected the appellants' challenges to Victorian and Tasmanian enactments that prohibit certain communications and activities in relation to abortions in "access zones" around premises at which abortions are provided.

The  Public Health and Wellbeing Act 2008 (Vic) s 185D prohibits a person from communicating in relation to abortions in a manner able to be seen or heard by persons accessing or attempting to access premises at which abortions are provided, if the communication is reasonably likely to cause distress or anxiety.

The  Reproductive Health (Access to Terminations) Act 2013 (Tas) s 9(2)  prohibits protests in relation to terminations that are able to be seen or heard by a person accessing premises at which terminations are provided ("the protest prohibition").

The prohibition under both enactments, similar to that in the ACT,  h apply within a radius of 150 metres from premises at which abortions are provided.

Clubb had been convicted in the Magistrates' Court of Victoria of an offence against s 185D of the Victorian Act, with Preston convicted in the Magistrates Court of Tasmania of an offence against s 9(2) of the Tasmanian Act. Both sought review of their convictions, including on the ground that the provision under which they had been convicted is invalid because it impermissibly burdens the freedom of communication on governmental and political matters which is implied in the Constitution.

Those parts of the proceedings in each of the Supreme Courts relating to the implied freedom were removed into the High Court.

 In relation to the Victorian Act, a majority of the High Court considered that the burden imposed by the prohibition was justified by reference to its legitimate purposes, including the protection of the safety, wellbeing, privacy and dignity of persons accessing lawful medical services. The other members of the Court considered that the challenge to the communication prohibition should be dismissed without determining the validity of the prohibition because it was not established that Clubb's conduct involved political communication.

The Court in considering the Tasmanian Act unanimously held that the burden imposed by the prohibition was justified by reference to its legitimate purposes, which include the protection of the safety, wellbeing, privacy and dignity of persons accessing premises at which abortions are provided and ensuring unimpeded access to lawful medical services.

Edelman J at [501] commented that the burden upon freedom of political communication cannot be said to be in gross and manifest disproportion to the importance of the purpose.

Kieffel CJ, Bell and Keane J in relation to Clubb concluded at [102]
 In summary in relation to the third step of the McCloy test, the limited interference with the implied freedom is not manifestly disproportionate to the objectives of the communication prohibition. The burden on the implied freedom is limited spatially, and is confined to communications about abortions. There is no restriction at all on political communications outside of safe access zones. There is no discrimination between pro-abortion and anti-abortion communications. The purpose of the prohibition justifies a limitation on the exercise of free expression within that limited area. And the justification of the prohibition draws support from the very constitutional values that underpin the implied freedom. Accordingly, the communication prohibition satisfies the third step of the McCloy test. 
In relation to Preston they stated at [127]:
 The Reproductive Health Act, in targeting a "protest" about abortion, is directed at public demonstration, whatever its viewpoint, which is likely to be confronting to those in need of medical advice and assistance from a clinic. The purposes of the Reproductive Health Act in this respect are the same as those of Pt 9A of the Victorian Act. The cardinal features of both pieces of legislation are that the burden on the implied freedom operates only within safe access zones and is confined to the discussion of abortion. The burden on political communication imposed by the protest prohibition is slight, in that, to the extent that it does affect political communication, it does so only within access zones, and without discriminating between sources of protest. 
 Gageler J commented at [213] that
 The 150 m reach of the protest prohibition around premises at which abortion services are provided must be close to the maximum reach that could be justified as appropriate and adapted to achieve the protective purpose of facilitating access to those premises in a manner compatible with maintenance of the constitutionally prescribed system of government. Nevertheless, I am satisfied that confining the protest prohibition within that 150 m limit leaves enough opportunity for protests to be held at other locations meaningfully proximate to the premises to warrant the conclusion that the burden that the protest prohibition places on political communication, although not insubstantial, is not undue. 

Religious Exemptions and the right to discriminate

The ALRC has been tasked with a 'comprehensive review of the framework of religious exemptions in anti-discrimination legislation across Australia' as part of the outgoing Government's response to the problematical Ruddock Review of Religious Freedom.

The Attorney-General stated
"It is essential that Australia's laws are nationally consistent and effectively protect the rights and freedoms recognised in international agreements, to which Australia is a party. This particularly applies to the right to freedom of religion and the rights of equality and non‑discrimination." 
The ALRC review will consider what reforms to Commonwealth, state and territory law, the Fair Work Act 2009 (Cth) and any other Australian laws should be made in order to: limit or remove altogether (if practicable) religious exemptions to prohibitions on discrimination, while also guaranteeing the right of religious institutions to conduct their affairs in a way consistent with their religious ethos, and remove any legal impediments to the expression of a view of marriage as it was defined in the Marriage Act 1961 (Cth) before it was amended by the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth), whether such impediments are imposed by a provision analogous to section 18C of the Racial Discrimination Act 1975 (Cth) or otherwise. 
In undertaking this reference, the ALRC will have regard to existing reports and inquiries including the Report of the Expert Panel on Religious Freedom and the ALRC Report on Traditional Rights and Freedoms – Encroachments by Commonwealth Laws.
The  Terms of Reference are that having regard to:
  • the rights and freedoms recognised in the international agreements to which Australia is a party, in particular: the rights to freedom of speech, association and thought, conscience and religion, including the right to manifest one's religion or belief in worship, observance, practice and teaching (including in community with others) and the liberty of parents and guardians (where applicable) to ensure the religious and moral education of their children in conformity with their own convictions;
  • the rights of equality and non-discrimination
  • the importance of protecting the rights of all people, and children in particular, to be free from discrimination in education 
  • the importance of allowing religious institutions both to teach and otherwise conduct themselves in a manner consistent with their religious ethos
  • the interaction between Commonwealth, State and Territory anti-discrimination laws and the desirability of national consistency in religious exceptions in those laws
The ALRC will engage in a consideration of what reforms to relevant anti-discrimination laws, the Fair Work Act 2009 (Cth) and any other Australian law should be made in order to:
  • limit or remove altogether (if practicable) religious exemptions to prohibitions on discrimination, while also guaranteeing the right of religious institutions to conduct their affairs in a way consistent with their religious ethos; and 
  • remove any legal impediments to the expression of a view of marriage as it was defined in the Marriage Act 1961 (Cth) before it was amended by the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth), 
  • whether such impediments are imposed by a provision analogous to section 18C of the Racial Discrimination Act 1975 (Cth) or otherwise.
The  consideration should encompass
  • Commonwealth, State and Territory anti-discrimination and vilification laws and the Fair Work Act.
Religious institutions for the purposes of the review include bodies established for religious purposes (including faith-based institutions) and educational institutions conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed.

The Ruddock report had made the following recommendations
Chapter 3 – Domestic legal framework 
Recommendation 1 Those jurisdictions that retain exceptions or exemptions in their anti discrimination laws for religious bodies with respect to race, disability, pregnancy or intersex status should review them, having regard to community expectations. 
Recommendation 2 Commonwealth, State and Territory governments should have regard to the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights when drafting laws that would limit the right to freedom of religion. 
Recommendation 3 Commonwealth, State and Territory governments should consider the use of objects, purposes or other interpretive clauses in anti-discrimination legislation to reflect the equal status in international law of all human rights, including freedom of religion. 
Chapter 4 – Manifestation and religious belief 
Charities and faith-based organisations 
Recommendation 4 The Commonwealth should amend section 11 of the Charities Act 2013 to clarify that advocacy of a ‘traditional’ view of marriage would not, of itself, amount to a ‘disqualifying purpose’.   
Employment in religious schools 
Recommendation 5 The Commonwealth should amend the Sex Discrimination Act 1984 to provide that religious schools can discriminate in relation to the employment of staff, and the engagement of contractors, on the basis of sexual orientation, gender identity or relationship status provided that: (a) the discrimination is founded in the precepts of the religion (b) the school has a publicly available policy outlining its position in relation to the matter and explaining how the policy will be enforced, and (c) the school provides a copy of the policy in writing to employees and contractors and prospective employees and contractors. 
Recommendation 6 Jurisdictions should abolish any exceptions to anti-discrimination laws that provide for discrimination by religious schools in employment on the basis of race, disability, pregnancy or intersex status. Further, jurisdictions should ensure that any exceptions for religious schools do not permit discrimination against an existing employee solely on the basis that the employee has entered into a marriage. 
Enrolment of students in religious schools 
Recommendation 7 The Commonwealth should amend the Sex Discrimination Act to provide that religious schools may discriminate in relation to students on the basis of sexual orientation, gender identity or relationship status provided that: (a) the discrimination is founded in the precepts of the religion (b) the school has a publicly available policy outlining its position in relation to the matter (c) the school provides a copy of the policy in writing to prospective students and their parents at the time of enrolment and to existing students and their parents at any time the policy is updated, and (d) the school has regard to the best interests of the child as the primary consideration in its conduct. 
Recommendation 8 Jurisdictions should abolish any exceptions to anti-discrimination laws that provide for discrimination by religious schools with respect to students on the basis of race, disability, pregnancy or intersex status. 
Religious and moral education 
Recommendation 9 State and Territory education departments should maintain clear policies as to when and how a parent or guardian may request that a child be removed from a class that contains instruction on religious or moral matters and ensure that these policies are applied consistently. These policies should: (a) include a requirement to provide sufficient, relevant information about such classes to enable parents or guardians to consider whether their content may be inconsistent with the parents’ or guardians’ religious beliefs, and (b) give due consideration to the rights of the child, including to receive information about sexual health, and their progressive capacity to make decisions for themselves. 
Solemnisation of marriages and use of places of worship 
Recommendation 10 The Commonwealth Attorney-General should consider the guidance material on the Attorney-General’s Department’s website relating to authorised celebrants to ensure that it uses plain English to explain clearly and precisely the operation of the Marriage Act 1961. The updated guidance should include: (a) a clear description of the religious protections available to different classes of authorised celebrants, and (b) advice that the term ‘minister of religion’ is used to cover authorised celebrants from religious bodies which would not ordinarily use the term ‘minister’, including non-Christian religions. 
Recommendation 11 The Commonwealth Attorney General should consider whether the Code of Practice set out in Schedule 2 of the Marriage Regulations 2017 is appropriately adapted to the needs of smaller and emerging religious bodies. 
Recommendation 12 The Commonwealth should progress legislative amendments to make it clear that religious schools are not required to make available their facilities, or to provide goods or services, for any marriage, provided that the refusal: (a) conforms to the doctrines, tenets or beliefs of the religion of the body, or (b) is necessary to avoid injury to the religious susceptibilities of adherents of that religion. 
Chapter 5 – Vilification, blasphemy and social hostility 
Blasphemy Recommendation 13 Those jurisdictions that have not abolished statutory or common law offences of blasphemy should do so. 
Recommendation 14 References to blasphemy in the Shipping Registration Regulations 1981, and in State and Territory primary and secondary legislation, should be repealed or replaced with terms applicable not only to religion. 
Chapter 6 – Discrimination 
Recommendation 15 The Commonwealth should amend the Racial Discrimination Act 1975, or enact a Religious Discrimination Act, to render it unlawful to discriminate on the basis of a person’s ‘religious belief or activity’, including on the basis that a person does not hold any religious belief. In doing so, consideration should be given to providing for appropriate exceptions and exemptions, including for religious bodies, religious schools and charities. 
Recommendation 16 New South Wales and South Australia should amend their anti-discrimination laws to render it unlawful to discriminate on the basis of a person’s ‘religious belief or activity’ including on the basis that a person does not hold any religious belief. In doing so, consideration should be given to providing for the appropriate exceptions and exemptions, including for religious bodies, religious schools and charities. 
Chapter 7 – Data, dialogue and education 
The experience of religious freedom 
Recommendation 17 The Commonwealth should commission the collection and analysis of quantitative and qualitative information on: (a) the experience of freedom of religion in Australia at the community level, including: (i) incidents of physical violence, including threats of violence, linked to a person’s faith (ii) harassment, intimidation or verbal abuse directed at those of faith (iii) forms of discrimination based on religion and suffered by those of faith (iv) unreasonable restrictions on the ability of people to express, manifest or change their faith (v) restrictions on the ability of people to educate their children in a manner consistent with their faith (b) the experience of freedom of religion impacting on other human rights, and (c) the extent to which religious diversity (as distinct from cultural diversity) is accepted and promoted in Australian society. 
Poor literacy concerning human rights and religion 
Recommendation 18 The Commonwealth should support the development of a religious engagement and public education program about human rights and religion in Australia, the importance of the right to freedom of religion and belief, and the current protections for religious freedom in Australian and international law. As a first step, the Panel recommends that the Attorney-General should ask the Parliamentary Joint Committee on Human Rights to inquire into and report on how best to enhance engagement, education and awareness about these issues. 
Recommendation 19 The Australian Human Rights Commission should take a leading role in the protection of freedom of religion, including through enhancing engagement, understanding and dialogue. This should occur within the existing commissioner model and not necessarily through the creation of a new position. 
Chapter 8 – Conclusion
Recommendation 20 The Prime Minister and the Commonwealth Attorney-General should take leadership of the issues identified in this report with respect to the Commonwealth, and work with the States and Territories to ensure its implementation. While the Panel hopes it would not be necessary, consideration should be given to further Commonwealth legislative solutions if required. 

Family Law

The ALRC report Family Law for the Future: An Inquiry into the Family Law System (ALRC Report 135) was released yesterday, recommending changes to administration of the family law regime.

The report makes the following recommendations
Closing the Jurisdictional Gap 
R 1 The Australian Government should consider options to establish state and territory family courts in all states and territories, to exercise jurisdiction concurrently under the Family Law Act 1975 (Cth), as well as state and territory child protection and family violence jurisdiction, whilst also considering the most efficient manner to eventually abolish first instance federal family courts. 
R 2 The Australian Government should work with state and territory governments to develop and implement a national information sharing framework to guide the sharing of information about the safety, welfare, and wellbeing of families and children between the family law, family violence, and child protection systems. The framework should include:
  • the legal framework for sharing information; 
  • relevant federal, state, and territory court documents; 
  • child protection records; 
  • police records; 
  • experts’ reports; and 
  • other relevant information. 
R 3 The Australian Government, together with state and territory governments, should consider expanding the information sharing platform as part of the National Domestic Violence Order Scheme to include family court orders and orders made under state and territory child protection legislation. 
Children’s Matters 
R 4 Section 60B of the Family Law Act 1975 (Cth) should be repealed. 
R 5 Section 60CC of the Family Law Act 1975 (Cth) should be amended so that the factors to be considered when determining parenting arrangements that promote a child’s best interests are:
  • what arrangements best promote the safety of the child and the child’s carers, including safety from family violence, abuse, or other harm;
  • any relevant views expressed by the child; 
  • the developmental, psychological, and emotional needs of the child; 
  •  the benefit to the child of being able to maintain relationships with each parent and other people who are significant to the child, where it is safe to do so; 
  • the capacity of each proposed carer of the child to provide for the developmental, psychological, and emotional needs of the child, having regard to the carer’s ability and willingness to seek support to assist with caring; and 
  • anything else that is relevant to the particular circumstances of the child. 
R 6 The Family Law Act 1975 (Cth) should be amended to provide that in determining what arrangements promote the best interests of an Aboriginal or Torres Strait Islander child, a court must consider the child’s opportunities to connect with, and maintain the child’s connection to, the child’s family, community, culture, and country. 
R 7 Section 61DA of the Family Law Act 1975 (Cth) should be amended to replace the presumption of ‘equal shared parental responsibility’ with a presumption of ‘joint decision making about major long-term issues’. 
R 8 Section 65DAA of the Family Law Act 1975 (Cth), which requires the courts to consider, in certain circumstances, the possibility of the child spending equal time, or substantial and significant time with each parent, should be repealed. 
R 9 Section 4(1AB) of the Family Law Act 1975 (Cth) should be amended to provide a definition of member of the family that is inclusive of any Aboriginal or Torres Strait Islander concept of family that is relevant in the particular circumstances of the case. 
R 10 Combined rules for the Family Court of Australia and the Federal Circuit Court of Australia should provide for proceedings to be conducted under Pt VII Div 12A of the Family Law Act 1975 (Cth) by judges of both courts. Both courts should be adequately resourced to carry out the statutory mandate in s 69ZN(1) of the Family Law Act 1975 (Cth). 
A Simplified Approach to Property Division 
R 11 The Family Law Act 1975 (Cth) should be amended to: y specify the steps that a court will take when considering whether to make an order to alter the interests of the parties to the relationship in any property; and y simplify the list of matters that a court may take into account when considering whether to make an order to alter the interests of the parties to the relationship in any property. 
R 12 The Family Law Act 1975 (Cth) should be amended to include a presumption of equality of contributions during the relationship. Recommendations 13 
R 13 The Family Law Act 1975 (Cth) should be amended to provide that the relevant date to ascertain the value of the parties’ rights, interests, and liabilities in any property is the date of separation, unless the interests of justice require otherwise. 
R 14 The family courts and the Australian Financial Complaints Authority should develop a protocol for dealing with jurisdictional overlap with respect to debts of parties to family law proceedings. The protocol should provide that: 
  • disputes about the enforceability of a debt against one or both parties under the National Consumer Credit Protection Act 2009 (Cth) are dealt with by the Australian Financial Complaints Authority; and 
  • disputes about the reallocation of a debt between parties to a family law proceeding are dealt with by the family courts. 
R 15 The Privacy Act 1988 (Cth) and the National Consumer Credit Protection Act 2009 (Cth) should be amended to provide that when a court has ordered that one party (Party A) be responsible for a joint debt and indemnify the other party (Party B) against any default, credit providers are prohibited from making an adverse credit report against Party B to any credit reporting business as a consequence of the subsequent actions of Party A. 
R 16 The Family Law Act 1975 (Cth) should be amended to provide a presumption that the value of superannuation assets accumulated during a relationship are to be split evenly between the parties. 
R 17 The Family Law Act 1975 (Cth) should be amended to simplify the process for splitting superannuation including:
  • developing template superannuation splitting orders for commonly made superannuation splits; and 
  • when the applicant is suffering economic hardship, requiring superannuation trustees to limit the fees they charge members and their former spouse for services provided in connection with property settlement under Pt VIII to the actual cost of providing those services. 
R 18 The Family Law Act 1975 (Cth) should be amended so that: y the spousal maintenance provisions and provisions relating to the division of property are dealt with separately under the legislation; and y access to interim spousal maintenance is enhanced by the use of Registrars to consider urgent applications. 
R 19 The Family Law Act 1975 (Cth) should be amended to include a statutory tort of family violence that would provide remedies consistent with existing common law remedies. 
R 20 The Family Law Act 1975 (Cth) should be amended to extend s 69ZX to property settlement proceedings. 
Encouraging Amicable Resolution 
R 21 The Family Law Act 1975 (Cth) should be amended to:
  •  require that parties take genuine steps to attempt to resolve their property and financial matters prior to filing an application for court orders; and 
  • specify that a court must not hear an application unless the parties have lodged a genuine steps statement. A failure to make a genuine effort to resolve a matter should have costs consequences. 
R 22 Regulation 25 of the Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (Cth), which refers to ‘equality of bargaining power between the parties’, should be amended to refer to the ‘equality of bargaining power between the parties, including an imbalance in knowledge of relevant financial arrangements’. 
R 23 The Family Law Act 1975 (Cth) should be amended to require Family Dispute Resolution Providers to provide a certificate to the parties in all matters where some or all of the issues in dispute have not been resolved. 
R 24 Sections 10H and 10J of the Family Law Act 1975 (Cth), which provide for confidentiality and inadmissibility of discussions and material in Family Dispute Resolution in relation to parenting matters, should be extended to Family Dispute Resolution for property and financial matters. The legislation should provide an exception for a sworn statement in relation to income, assets, superannuation balances, and liabilities that each party signs at the start of Family Dispute Resolution, which should be admissible. 
R 25 The Family Law Act 1975 (Cth) should be amended to clearly set out the disclosure obligations of parties, and the consequences for breach of those obligations. 
Arbitration 
R 26 The Family Law Act 1975 (Cth) and the Child Support (Assessment) Act 1989 (Cth) should be amended to increase the scope of matters which may be arbitrated, whether or not upon referral from a court. Those matters should include all financial issues, including child maintenance and child support, subject to limitations. Appropriate occasions for arbitration would not include disputes:
  • relating to enforcement;   
  • under ss 79A or 90SN of the Family Law Act 1975 (Cth) (subject to limitations); and 
  • in which a litigation guardian has been appointed. 
R 27 The Family Law Act 1975 (Cth) should be amended to remove the opportunity for a party to object to registration of an arbitral award, while maintaining appropriate safeguards for the integrity of registered awards. 
R 28 The Family Law Act 1975 (Cth) should be amended to allow some children’s matters to be arbitrated. Appropriate occasions for arbitration in children’s matters would not include disputes: 
  • relating to international relocation; 
  • relating to medical procedures of a nature requiring court approval; 
  • relating to contravention matters; y in which an Independent Children’s Lawyer has been appointed; and 
  • involving family violence which satisfy ss 102NA(1)(b) and (c) of the Family Law Act 1975 (Cth). 
R 29 The Family Law Act 1975 (Cth) should be amended to provide that upon application by an arbitrator, or by a party to an arbitration, a court has power to make directions at any time regarding the further conduct of the arbitration, including power to make a direction terminating the arbitration (whether or not the arbitration was referred from a court). 
Case Management: Efficiency and Accountability 
R 30 The Family Law Act 1975 (Cth) should include an overarching purpose of family law practice and procedure to facilitate the just resolution of disputes according to law, as quickly, inexpensively, and efficiently as possible, and with the least acrimony so as to minimise harm to children and their families. 
R 31 The Family Law Act 1975 (Cth) should impose a statutory duty on parties, their lawyers, and third-parties to cooperate amongst themselves, and with the courts, to assist in achieving the overarching purpose. Breach of the duty will have costs consequences for the person who fails to act in accordance with the overarching purpose.  
R 32 The Family Law Act 1975 (Cth) should be amended to provide the courts with a power to make an order requiring a litigant to seek leave of the court prior to making further applications and serving them on the other party where the court is satisfied that such an order is appropriate for the protection of the respondent and/or any children involved in the proceedings, having regard to the overarching purpose of family law practice and procedure. 
R 33 Section 45A of the Family Law Act 1975 (Cth) should be amended to provide that the courts’ powers of summary dismissal may be exercised where the court is satisfied that it is appropriate to do so, having regard to the overarching purpose of family law practice and procedure. 
R 34 The family courts should consider promulgating a joint Practice Note for Case Management which describes the courts’ approaches to the family law practice and procedure provisions. 
R 35 The Family Law Act 1975 (Cth) should be amended to provide for the appointment and protection of referees in the same terms as provided for in ss 54A and 54B of the Federal Court of Australia Act 1976 (Cth). 
R 36 Section 117 of the Family Law Act 1975 (Cth) should be amended to: y remove the general rule that each party to proceedings under the Act bears his or her own costs; and y articulate the scope of the courts’ power to award costs. 
R 37 The Family Law Act 1975 (Cth) should be amended to provide courts with an express statutory power to exclude evidence of ‘protected confidences’. In determining whether to exclude evidence of protected confidences the court must:
  • be satisfied that it is likely that harm would or might be caused, directly or indirectly, to a protected confider, and the nature and extent of the harm outweighs the desirability of the evidence being given; and 
  • ensure that in parenting proceedings, the best interests of the child is the paramount consideration when deciding whether to exclude evidence of protected confidences. 
Compliance with Children’s Orders 
R 38 The Family Law Act 1975 (Cth) should be amended to require parties to meet with a Family Consultant to assist their understanding of the final parenting orders made by a court following a contested hearing. 
R 39 The Family Law Act 1975 (Cth) should be amended to provide that: 
  • in all parenting proceedings for final orders, the courts must consider whether to make an order requiring the parties to see a Family Consultant for the purposes of receiving post-order case management; and 
  • the appointed Family Consultant has the power to seek that the courts place the matter in a contravention list or to recommend that the court make additional orders directing a party to attend a post-separation parenting program. 
R 40 The Family Law Regulations 1984 (Cth) should be amended to require leave to appeal interim parenting orders. Leave should only be granted where:
  • the decision is attended by sufficient doubt to warrant it being reconsidered; and 
  • substantial injustice would result if leave were refused, supposing the decision to be wrong. 
R 41 The Family Law Act 1975 (Cth) should be amended to explicitly state that when a new parenting order is sought, and there is already a final parenting order in force, the court must consider whether:
  • there has been a change of circumstances that, in the opinion of the court, is significant; and 
  • it is in the best interests of the child for the order to be reconsidered. 
R 42 Part VII Div 13A of the Family Law Act 1975 (Cth) should be redrafted to achieve simplification, and to provide for:
  • a power to order that a child spend additional time with a person; 
  • a power to order parties to attend relevant programs at any stage of proceedings; and 
  • a presumption that a costs order will be made against a person found to have contravened an order. 
Support Services in the Courts 
R 43 The Family Law Act 1975 (Cth) should be amended to:
  • replace ‘family consultants’ with ‘court consultants’; and 
  • redraft s 11A to include a comprehensive list of functions that court consultants would provide to children, families, and the courts. 
R 44 Section 68LA(5) of the Family Law Act 1975 (Cth) should be amended to include a specific duty for Independent Children’s Lawyers to comply with the Guidelines for Independent Children’s Lawyers, as promulgated from time to time and as endorsed by the family courts. 
R 45 The Australian Government should ensure the availability of Indigenous Liaison Officers in court registries where they are required. 
R 46 The Family Law Act 1975 (Cth) should be amended to include a supported decision making framework for people with disability consistent with recommendations from the ALRC Report 124, Equality, Capacity and Disability in Commonwealth Laws
R 47 The Family Law Act 1975 (Cth) should include provisions for the appointment of a litigation representative where a person with disability is unable to conduct the litigation. These provisions should be consistent with the recommendations of the ALRC Report 124, Equality, Capacity and Disability in Commonwealth Laws
R 48 The Australian Government should work with state and territory governments to facilitate the appointment of statutory authorities as litigation representatives in family law proceedings. 
Building Accountability and Transparency  
R 49 Section 115 of the Family Law Act 1975 (Cth) should be amended to expand the Family Law Council’s responsibilities to include:
  • monitoring and regular reporting on the performance of the family law system; 
  • conducting inquiries into issues relevant to the performance of any aspect of the family law system, either of its own motion or at the request of government; and 
  • making recommendations to improve the family law system, including research and law reform proposals. 
R 50 The Family Law Council should establish a Children and Young People’s Advisory Board, which would provide advice and information about children’s experiences of the family law system to inform policy and practice. 
R 51 Relevant statutes should be amended to require that future appointments of all federal judicial officers exercising family law jurisdiction include consideration of the person’s knowledge, experience, skills, and aptitude relevant to hearing family law cases, including cases involving family violence. 
R 52 The Law Council of Australia should work with state and territory regulatory bodies for legal practitioners to develop consistent requirements for legal practitioners undertaking family law work to complete annually at least one unit of continuing professional development relating to family violence. 
R 53 The Australian Government Attorney-General’s Department should develop a mandatory national accreditation scheme for private family report writers. 
R 54 The Family Law Act 1975 (Cth) should be amended to: y require any organisation offering a Children’s Contact Service to be accredited; and y make it an offence to provide a Children’s Contact Service without accreditation. 
 Legislative Clarity 
R 55 The Family Law Act 1975 (Cth) and its subordinate legislation should be comprehensively redrafted. 
R 56 Privacy provisions that restrict publication of family law proceedings to the public, currently contained in s 121 of the Family Law Act 1975 (Cth), should be redrafted. 
Secondary Interventions 
R 57 The Family Advocacy and Support Service’s social support services should be expanded to provide case management to clients who are engaged with the family law system. 
R 58 The Australian Government should work with Legal Aid Commissions in each state and territory to expand the Family Advocacy and Support Service to court locations that have a demonstrable need and to ensure the provision of adequate and appropriate services. 
R 59 Family Relationship Centres should be expanded to provide case management to clients with complex needs who are engaged with the family law system.  
R 60 The Australian Government should work with Relationship Centres to develop services, including:
  • financial counselling services; 
  • mediation in property matters; 
  • legal advice and Legally Assisted Dispute Resolution services; and 
  • Children’s Contact Services.