Rules and Precedents

'Do precedents create rules?' by Grant Lamond in (2005) 11(1) Legal Theory 1-26 comments 

 The doctrine of precedent is one of the most distinctive features of the modern common law. Understanding the operation of precedent is important for our theorising about the nature of law, since any adequate theory must be compatible with the practice. In this paper I will explore the conventional view of precedent, endorsed by practitioners and many legal philosophers alike. I will argue that, for all its attractions, it provides a distorted view of the nature of precedent. The distortion grows out of the basic assumption that precedents create rules, and thus that the common law can be understood as a form of rule-based decision-making. Instead, the common law is a form of case-by-case decision-making, and the doctrine of precedent constrains this decision-making by requiring later courts to treat earlier cases as correctly decided. The relevance of earlier cases is not well understood in terms of rules— they are better understood as a special type of reason. This is not simply a technical debate about the proper way to capture the way precedent operates in legal reasoning: how we characterise precedent matters to our understanding of the function of precedent in the common law. The rule-based model suggests that the function of precedent is to settle the law so that it can guide individuals and the courts. The reason-based model suggests that the function is to compensate for the erosion of consensus in the common law by simultaneously fixing starting points for decision- making without giving the judiciary law-making power. 

I will represent the conventional view of precedent in terms of four propositions. My claim is not that every practitioner or theorist would endorse every detail of these propositions, but that they capture fairly well a widely held view. These are only very rough characterisations, which different theorists would expand upon in different ways, but they are sufficient as a starting point for discussion. The four propositions are these:

(1) Precedents lay down rules in their rationes, and such rules are binding in later cases whose facts fall within the scope of those rules. 

(2) Some later courts have the power to overrule precedents, but all later courts have the power to distinguish precedents, which amounts to a limited power to modify the rule laid down in the precedent case. 

(3) The application of the rule in later cases is determined by the precedent court’s justification(s) for the rule. 

(4) The function of the doctrine of precedent is to create new legal rules to settle uncertainty in the law, so as to provide guidance to individuals and the courts. 

On the conventional view, then, what is binding in a precedent is the ratio, and the ratio is a rule that can be applied in later situations to guide individuals and future courts. The practice of distinguishing, whereby later courts are entitled to avoid the application of the precedent although the facts fall within the scope of the ratio, is thus a power to modify the ratio—a power subject to strict limits. The application of the rule laid down in the precedent’s ratio is to be determined by reference to the justification given by the court for its holding—it must be interpreted in accordance with the intentions of the maker of the rule. All in all, then, precedents give rise to a form of rule-based decision-making which differs from other forms in two minor ways: (i) the ratio has to be constructed from the judgment in a case, and is not based upon a canonical formulation by the court; and (ii) later courts have a limited power to modify the ratio that applies to the case before it. 

The conventional view of precedent is not without its philosophical critics. They argue that the fact that the ratio of a precedent is not based upon a canonical formulation given by the court, but must be constructed from the judgment as a whole, provides a basis for denying that the ratio constitutes the binding part of a precedent at all. Instead of there being a binding legal rule, it is argued, later courts are bound by the principles which justify the result reached in the earlier case. On one approach later courts are bound by the principles the precedent court itself used to justify the result1; on another approach later courts are bound by whatever principles provide the best justification for the outcomes reached in the body of cases to which the precedent belongs. Although I agree with these critics that precedents do not lay down rules, my argument does not proceed on the basis that rationes play no independent role in legal reasoning. 

Instead, what is distinctive about the reason-based view I am proposing is that it regards a precedent as a decision relative to a particular factual context. The ratio points to those features of the case which provide sufficient reason(s) for the result, given that context. Unlike a rule, it does not attempt to pre-empt what should be done in similar cases where the facts differ — that has to be decided on the balance of reasons present in the latter case. This is why the basic obligation under the doctrine of precedent is either to follow or distinguish the earlier decision — a disjunctive obligation. Distinguishing and following are simply two sides of the same coin: case-by-case decision-making is the process of determining whether or not a precedent should be followed given the differences between the case before the court and the precedent case. Furthermore, in deciding whether to follow or distinguish, the later court is not asking what the precedent court would have decided: it is making its own assessment of the merits of the situation. Later courts, then, are not bound by rationes—they are bound by precedents; and they are not bound to follow precedents—they are bound to determine whether they should be followed or distinguished. 

The starting point for a reason-based account then is a reflection upon what is, in truth, the fundamental requirement of the common law doctrine of precedent, viz. that later courts treat earlier cases as correctly decided on their facts. What flows from this requirement is the necessity of reaching a decision in a later case which is consistent with the correctness of the earlier decision. The question is what sort of ‘consistency’ does this entail? The conventional view interprets consistency in terms of the use of the same ‘rule’ as that relied upon in the precedent case. Those who demur on the significance of rationes interpret it as entailing the application of the same set of principles which justified the preceding case(s). The reason-based view requires that later courts accept the correctness of the precedent court’s assessment of the balance of reasons on the facts of the precedent case. 

Why prefer an account of precedent in terms of reasons rather than rules? Essentially because there are a range of features of common law reasoning which are more intelligible from this perspective, most notably the existence of the practice of distinguishing. But such an account also casts light on the following features: the lack a fixed, canonical formulation for rationes; the significance of the facts of the case and the detailed attention that is often given to them in common law adjudication; the persistence of theoretical disagreement on the significance of the precedent court’s justification for its ratio; and the question of how the modern doctrine of precedent fits into the history of the common law. 

This paper is divided into three sections. In the first I examine the rule-based account in greater depth in order to demonstrate the difficulty of reconciling it with the practice of distinguishing. Although this is the fundamental stumbling block for the account, I also note a number of other features of the common law which sit uneasily with the idea that precedents lay down rules. In the second section I develop the account of precedent as case-by-case decision- making, explaining its similarities and dissimilarities to rule-based decision-making. I highlight various features of the common law which make case-by-case decision-making appear closer to rule- based decision-making than it really is. Finally, in the third section I turn to the function of the doctrine of precedent, and what can be learnt from the fact that precedents do not lay down rules. 

Before proceeding, a few points are needed to delimit the scope of the paper. The first is that the focus of the paper is on those areas of the law primarily governed by the common law rather than statute. Although some points are raised on the nature of statutory interpretation, my interest is in the operation of the doctrine of precedent in the common law. Various adjustments would need to be made to extend the analysis to the role of precedent in statutory interpretation. The second clarification is that my focus will be on the uncomplicated situation in which a court delivers a single judgment providing a single ground for the result. I am not concerned with the complications which arise in legal practice from cases where there is no agreed majority judgment in favour of the result, or the judgment gives two separate but individually sufficient grounds for the result, or no reasons at all are given by the court. These questions are important for practitioners, but the key theoretical questions arise from the uncomplicated single judgment case. Finally, the aim of the paper is to provide a better understanding of the nature of precedent in the common law, rather than to discuss the possible relevance of this understanding for the debate about the fundamental basis of law. Despite the great interest of that debate, there is no simple or straightforward implication of the case-by-case analysis of precedent for theoretical claims such as the sources thesis or interpretivist accounts of law. 

One final preliminary. For the sake of expository convenience, I have tried to use the following terms in a consistent manner in this paper. When I speak of a ‘case’, I mean a legal dispute which has or could be brought before a court. The ‘result’ of the case refers to the legal result of the case for those parties if brought before a court, viz. who won or lost, and what legal consequences flowed for the parties from that outcome. By ratio I mean what most (but by no means all) lawyers mean when they speak of the ratio of a court judgment, viz. the proposition of law which the decision authoritatively creates. The ‘justification’ for the ratio comprises all of those reasons given by the court in support of that proposition of law—it is the rationale for the ratio. And the court’s ‘decision’ refers to all three aspects of the court’s judgment: (a) the justification for (b) the proposition of law which contributes to (c) the result in the case. I use the term ‘precedent court’ and ‘precedent case’ to refer to the earlier court and dispute; and I speak of ‘later courts’ and ‘later cases’ to refer to those courts and disputes which are bound by the precedent.

Feudalism

The 1999 Scottish Law Commission report on Abolition of the Feudal System - largely given effect through legislation the following year - considered entails, tenure and other matters alongside an exploration of 'The rise and fall of the feudal system'. 

 1.7 The feudal system of land tenure depended on the theory that all land was ultimately owned by the Sovereign. The Sovereign would feu out lands to be held by vassals in return for military services. The vassals would sub-feu on the same basis to vassals of their own, who might in turn sub-feu, and so on downwards in an ever-widening pyramid. The relationship between superior and vassal was a continuing relationship with reciprocal rights and obligations, originally the rendering of military service by the vassal and the provision of a secure tenure and military protection by the superior. The feudal system of land tenure was not confined to Scotland. Indeed it came to Scotland comparatively late in its development. Its spread over much of Europe was a remarkable phenomenon. It could not have achieved such success if it had not met the needs of the times in an efficient way. But times change. The feudal system has now been abolished and superseded practically everywhere. In France it did not survive the Revolution. In England it was substantially dismantled in the seventeenth century, leaving a complicated system of different kinds of "estates in land" which was later greatly simplified by a series of statutes culminating in the Law of Property Act 1925. 

1.8 In Scotland the system survived but only because it became commercialised and, eventually, attenuated and debased. The first stage was the disappearance of the military element. Armies were no longer raised by relying on feudal obligations and the overtly military type of feudal tenure was gradually replaced by a type of feudal tenure (known as feu farm) under which the dues to be rendered to the superior were entirely in the form of money or goods. There was a significant reform in 1746 when the Tenures Abolition Act abolished entirely the old, and originally military, form of tenure known as ward holding. Lands formerly held on that tenure from the Crown were to be held on blench holding (for one penny Scots per year, if asked only) and lands formerly held on ward holding from a subject superior were to be held on ordinary feu farm tenure for an annual feuduty in money or goods. 

1.9 A series of further reforms in the 19th century removed some obsolescent relics in the feudal system, such as the formal ceremony of the giving of sasine, and did much to simplify the remarkable complexities of feudal conveyancing. Reforms in the present century have improved the vassal's rights and reduced those of the superior. From an economic point of view the vassal with dominium utile can virtually be regarded as outright owner. In most cases the rights of superiors are valueless, or at least worth less than the cost of conveying the superiority. As a result, when a superior dies, the heirs may not bother to lay claim to the titles. However, the theoretical structure remains. There is still a notional pyramid of interests in land with the Crown, the paramount superior, at the top and the owner of the dominium utile at the bottom. Each intermediate level in the pyramid is a separate estate in land, a mid- superiority or dominium directum, owned by a person who is a feudal superior in relation to the owner or owners at the level below and a vassal in relation to the owner or owners at the level above. The system is inherently and unnecessarily complex, involving as it does multiple "owners" of the same piece of land. 

1.10 Just as important as the legal reforms have been changes in the functions performed by the feudal system. In the days before building societies, it provided a way of buying property for a reduced capital sum coupled with a substantial feuduty. Superiorities which carried the rights to feuduties came to be regarded as secure and attractive investments at a time when investment opportunities were much more limited than they are now. Many superiorities passed into the hands of financial institutions and other bodies with large investment portfolios.10 The feudal system also provided a form of private planning control, particularly in urban areas, at a time when other forms of planning control were non-existent. The urban landscape of Scotland owes a great deal to this function of the feudal system. From the vassal's point of view the system offered perpetual tenure, generally regarded as preferable to holding on a long lease which would eventually run out. 

1.11 The feudal system of land tenure now exists in only a shadowy form. Most feuduties have been redeemed.  Even before the redemption scheme began to extinguish feuduties on a massive scale, feudal superiorities had ceased to be regarded as an attractive investment. Fixed feuduties were at the mercy of inflation and the small sums now due in many cases are often more trouble to collect than they are worth. The town and country planning function of the feudal system has become distorted. The role of the superior is often less that of restraining building than of charging money for allowing it. Privately enforceable restrictions on the use of land in the form of real burdens still have a useful role to play, subject to appropriate restrictions and safeguards, in supplementing the planning law in minor or local matters but such real burdens do not have to be linked to the feudal system.They can be enforceable by the neighbouring owners who have an interest to enforce them. Superiors are often remote. Indeed, they are increasingly unknown to the vassal. Even the minimal link which resulted from the annual payment of feuduty has largely disappeared with the progressive redemption of feuduties. 

1.12 Although an empty shell for most practical purposes, the system is still susceptible to abuse. It is also a continuing source of unnecessary complications in Scottish property law. 

Earlier recommendations for abolition 

1.13 In 1966 the Halliday Committee on Conveyancing Legislation and Practice recommended that all existing feus should ultimately be converted into holdings direct of the Crown, all intermediate superiorities being extinguished. The Government later concluded that feudal tenure should be abolished completely subject only to certain rights vested in the Crown.  Unfortunately this was not done. The legislation which followed from these deliberations introduced important reforms but stopped short of complete abolition of the feudal system of land tenure. It did, however, pave the way for abolition by (a) providing a mechanism for dealing with outdated or restrictive real burdens (b) prohibiting the creation of new feuduties (c) conferring a right to redeem feuduties voluntarily and (d) providing for the compulsory redemption of existing feuduties on the next sale of the property in question. 

Our discussion paper 

1.14 Our Fourth Programme of Law Reform contained an item on "property law". Under this heading the Commission said that its first objective was "the consideration of land tenure law reform with a view to the completion in due course of statutory reform of feudal tenure".  In pursuit of this objective the Commission published a discussion paper20 which sought comments on "the formulation of a new system of land tenure in Scotland to replace the existing feudal system and on ways of effecting a transition to the new system". 

1.15 The great majority of the responses to the discussion paper supported the principle of the abolition of the feudal system, although some specialist commentators raised issues, largely of a technical kind, which required further consideration. The responses to the consultation and the further work which had taken place on the preparation of a draft report enabled the Commission to state firmly in its Fifth Programme of Law Reform that its aim was the complete abolition of the feudal system of land tenure and its replacement with a modern system. 

The case for abolition 

1.16 From the point of view of social policy the main reason for recommending the abolition of the feudal system of land tenure is that it has degenerated from a living system of land tenure with both good and bad features into something which, in the case of many but not all superiors, is little more than an instrument for extracting money. Superiors who have no actual interest in the enforcement of real burdens can extract money from vassals for granting waivers of their right to insist on observance. This practice has continued notwithstanding the power of the Lands Tribunal to vary or discharge unreasonable or unduly burdensome land obligations.  A burden on the vassal's title which is on the face of it enforceable by the superior has a nuisance value even if the burden would in all probability be discharged by the Lands Tribunal. Superiors are still able to charge a sum which takes into account the trouble, delay, expense and uncertainty involved in seeking a variation or discharge from the Tribunal. Indeed even burdens which are manifestly invalid or unenforceable have a nuisance value to the superior which can be turned into money. The practices of many superiors in relation to the charging of fees for waivers have given rise to frequent complaints and demands for reform. 

1.17 There are other reasons of a more technical nature for recommending abolition. Even if it were not susceptible to abuse for monetary gain the feudal system would be in need of reform. It now serves no useful function. It has become an anachronism which needlessly complicates the law.  Abolition is an essential first step in any more general programme of land reform. No country with any interest in the state of its laws would wish to carry forward such a system into the next century. 

1.18 It has sometimes been suggested that the feudal system should be modified rather than abolished and that all existing feudal holdings of land should be converted into holdings direct of the Crown. It was argued by one respondent to our discussion paper that the abolition of the paramount superiority of the Crown would diminish the constitutional position of the Crown in Scotland. We think that this argument is misguided. There is no reason why complete abolition of the feudal system of land tenure should have any effect on the constitutional position of the Crown. We recommend provisions expressly designed to ensure that the Crown's prerogative rights as sovereign and head of state are undiminished.  It would be illogical, inconsistent and artificial to retain the highest element in the feudal system of land tenure while abolishing all the lower elements. 

1.19 In short, abolition of the feudal system of land tenure would remove archaic features of the Scottish system of conveyancing and land ownership which either serve no useful purpose or are positively harmful. It would bring legal theory into line with practical reality. It would finally eliminate feuduties from Scottish land law. It would greatly simplify that law and pave the way for further reforms. 

Some essential definitions 

1.20 The feudal system of land tenure. By the "feudal system of land tenure" we mean the system whereby land is held by a vassal (who owns the dominium utile) on perpetual tenure from a superior (who owns the dominium directum) who may in turn hold from another superior, and so on up to the Crown or Prince and Steward of Scotland. This form of tenure falls to be distinguished from the position of a tenant under a lease. Leases, although sometimes very long, are not perpetual,26 and do not involve the relationship of superior and vassal. It also falls to be distinguished from allodial tenure where the land is owned outright, without any link to the Crown as ultimate superior. The main example of allodial tenure is the udal system still found in Orkney and Shetland. 

1.21 Land which was acquired by the Crown by conquest, feudal custom, annexation or other means, but which has never been feued out by the Crown, is not within the feudal system of land tenure as here defined. Crown rights to such land, even if originally derived from feudal might or feudal custom, are not held of a superior and are not within the feudal system of land tenure as defined for the purposes of this report. 

1.22 Land. By "land" we mean not only surface land (including land covered by water) and the buildings and other structures which accede to it, but also the separate tenements which are capable of being held on feudal tenure under the present law. These include flats in tenement buildings, minerals under the ground, and the right to fish for salmon, as well as some more esoteric subjects. 

1.23 The appointed day. At various points in this report and in the draft Bill reference is made to "the appointed day". This is the day on which the main provisions of any Act based on the draft Bill would be brought into force. It is the day on which the feudal system of land tenure would be finally abolished. The date would be fixed by the appropriate Minister. For practical reasons it should be either 28 May (Whitsunday) or 28 November (Martinmas) because these are the dates on which feuduties are normally payable. We envisage that the appointed day would be sufficiently long after the date when the Act is passed to give people time to make any necessary arrangements to adapt to the new law. In some cases, for example, provision is made for rights to be reserved by registering a notice.Time would need to be allowed for this to be done. A period of two years would in our view be sufficient but we do not recommend any specific period. It is useful to retain a degree of flexibility at this stage. 

Our main recommendations 

1.24 In this report we recommend the abolition of the feudal system of land tenure and its replacement by a system of outright ownership.  Vassals would become owners. Any feudal estate ofdominium utile would be converted into simple ownership of the land. All remaining feuduties would be extinguished.  Real burdens in grants in feu (such as restrictions on the use to be made of the property) would cease to be enforceable by superiors. Superiors would disappear. However, we recommend  that a former superior who owns neighbouring land should be able, subject to restrictions and within time limits, to register a notice preserving real burdens in favour of that land. Such preserved burdens could then be enforced as non-feudal burdens provided that the former superior, as owner of the neighbouring land, had an interest to enforce them. We also recommend that where a feudal real burden provides for the maintenance of a common facility it should be enforceable after the date of abolition of the feudal system by the owners of the benefited properties.Otherwise there would be cases where the only person entitled to enforce the burden was the superior and where, consequently, the burden would cease to be enforceable, to the detriment of all the affected properties. We also recommend the preservation of certain real burdens imposed for conservation purposes by bodies on a list to be established by the Secretary of State; and of certain burdens affecting the sea bed or foreshore.These are important, but also exceptional, cases. Most real burdens would fall with the feudal system itself. 

1.25 We recommend that compensation should be payable to superiors for the loss of the right to feuduties and for the loss of the right to certain real burdens which reserve development value to the superior.  We do not, however, consider that compensation should be payable for the loss of exploitation rights, by which we mean the right to exact money from vassals by charging for waivers of conditions which the superior has no desire to enforce and which were not imposed in order to reserve development value to the superior. 

1.26 In the existing law there are certain forms of tenure and types of payment which are similar to feudal tenure and feuduties. We recommend the abolition of the form of tenure known as Kindly Tenancies.The holding of land on this form of tenure will be converted into ownership, which it already is for practical purposes. We also recommend the abolition of such payments as ground annual, skat, teind, stipend and standard charge.  The abolition of teinds, stipend and standard charge cuts away the basis of some statutory provisions and these too will be repealed. The practical effect is to enable some obsolete legislation concerning former methods of funding parish churches to be repealed.  We do not, however, recommend the abolition of udal tenure. This is already non-feudal ownership. 

1.27 We recommend the abolition of entails, already defunct in practice.39 This will enable many obsolete statutory provisions to be repealed. 

1.28 The abolition of the feudal system of land tenure affects the law on the transfer of land in important ways. The draft Bill appended to this report contains new provisions40 on the way in which the ownership of land may be transferred and contains many consequential amendments and repeals.41 It also contains many repeals of obsolete conveyancing provisions. Some of these repeals are not strictly consequential on the abolition of the feudal system. However, abolition has provided a convenient opportunity for clearing out whole areas of obsolete law.

The section on entails states 

9.8 Entails, or tailzies, were at one time commonly used to keep lands in the same family for generations. A feudal grant of land would be made in such a way that the succession to it was strictly regulated and protected. For example, the deed might provide that on the death of the owner the land was to pass to his eldest son or other male heir and so on for subsequent owners. At any one time there would often be an heir in possession and an heir apparent who could expect to succeed to the lands on surviving the heir in possession. The stipulated line of succession would be secured by provisions, called the fetters of the entail, whereby any attempt by the heir in possession to interfere with the succession or to reduce the extent or value of the estate, for example by selling or feuing or burdening the property or even, in some cases, granting leases, resulted in the lands passing immediately to the next heir. 

9.9 The lawfulness of entails of feudal land was established by the Entail Act or "Act concerning Tailyies" of 1685. This Act also established a register of tailzies - later known as the register of entails. 

9.10 The disadvantages of tying up land by strict entails quickly became apparent and a long succession of statutes, beginning with the Entail Improvement Act 1770, gradually increased the powers of the heir in possession to deal with the land in ways inconsistent with the fetters of the entail. In the 18th and early 19th centuries there were also numerous private Acts of Parliament to enable heirs of entail to sell or burden the entailed estates for the payment of debts. The judges were hostile to entails. The Court of Session developed a rule that the provisions of entails were to be interpreted strictly, and many lands were effectively disentailed by judicial construction. 

9.11 the preamble that A significant reform was introduced by the Entail Amendment Act 1848 which, with "the law of entail in Scotland has been found to be attended with serious evils, both to heirs of entail and to the community at large" introduced provisions enabling heirs in possession to disentail the lands. An heir born after the date of the entail (if the entail was dated after 1 August 1848) or after 1 August 1848 (if the entail was dated before that date) could disentail without any consent. In other cases the consent of the heir next in succession was required. The procedure was by application to the Court of Session for authority to execute, and register in the register of tailzies, an instrument of disentail. The effect was to remove the fetters of the entail. The heir in possession was placed in the same position as a full owner. The special destination in the titles remained in force but the owner could defeat it by disposing of the property or altering the succession to it. See the Chronological Table of Private and Personal Acts 1539-1994. 

9.12 Acts of 18756 and 18827 enabled even those heirs in possession who required consent to obtain the authority of the court to disentail without the consent of any succeeding heir provided that the value of the interest of any such heir was ascertained and paid or secured on the land. Finally, the Entail (Scotland) Act 1914 prohibited the creation of new entails after 10 August 1914. 

9.13 Entails have for a long time had serious disadvantages from the point of view of tax planning. Heirs of entail will normally have been advised decades ago to take advantage of the facilities for disentail. There must be few, if any, entails still in existence. Any heir of entail in possession born after the date of the entail can now disentail without any consent or payment of compensation. Given that all existing entails must have been dated before 10 August 1914 there must be few, if any, cases where there is an heir of entail in possession who was born before the date of the entail. Even if there are any, they can disentail without the consent of the heir next entitled to succeed if the value of that heir's interest or expectancy is ascertained and secured on the land. 

9.14 The result of the long history of statutory intervention in relation to entails is that there are some twenty statutes still in force to deal with an area of the law which has become obsolete. Many of these statutes contain feudal language which would have to be amended to deal with the consequences of the abolition of the feudal system of land tenure. We concluded that this would be a pointless exercise and that, rather than amend the entail statutes to remove feudal terminology, we should recommend the ending of entails and the repeal of all this obsolete legislation.  We were confirmed in this view by consultation with the Keeper of the Registers, the Law Society of Scotland and some firms of solicitors known to represent large landed estates or to have acted in relation to entails in the past. 

9.15 We have considered the question of compensation. For the reasons given above it seems likely that any remaining entailed estates could be disentailed under the existing law without any consents and without the need to pay compensation. Only if the heir in possession was born before the date of the entail (which must have been before 10 August 1914) could there be any question of compensation. We doubt whether any provision for compensation would be used. However, it can do no harm to err on the side of caution and to include a provision. An appropriate mechanism would be a claim to the Lands Tribunal for Scotland within two years after the appointed day. The Tribunal would have power to value the claim and to order the amount to be secured on the land for the benefit of the claimant in such manner as they might think fit. Normally the date of payment out of the lands would be the death of the current owner. If the owner chose not to alter the succession - so that the  next heir succeeded in any event - the secured amount would cease to matter because it would be due to and by the same person. 

9.16 The Keeper of the Registers suggested that provision should be made for the formal closure of the Register of Entails and for its transmission to the Keeper of the Records of Scotland for preservation. Otherwise there might be continuing applications for the registration of old deeds relating to entails. It appears that applications for the registration of pre-1914 deeds of entail continued to be received for decades after new entails were prohibited by the Entail (Scotland) Act 1914. We agree with this suggestion.

EU Privacy Coherence

'The European Data Protection Board - a (non)consensual and (un)accountable role?' by Lisette Mustert and Cristiana Santos comments 

The European Data Protection Board (EDPB) aims to ensure consistent enforcement of data protection laws across the EU through the adoption of guidelines and opinions. However, two challenges have been identified. First, the EDPB's proactive engagement in issuing guidance is sometimes inconsistent, which can lead to discrepancies in the application of data protection laws across the EU, particularly as national Data Protection Authorities (DPAs) issue their own guidelines, creating a fragmented landscape. Second, uncertainty remains regarding the consistency of the EDPB's guidance due to its non-binding nature, which leads to varying interpretations of the GDPR. These challenges raise concerns about the EDPB's ability to ensure compliance with its mandate. This paper examines whether the EDPB is sufficiently independent when drafting guidance and whether it can be held accountable through political, legal, administrative, or social oversight. This paper argues that while the EDPB should maintain complete independence to fully utilize its technical expertise, it should still be subject to ex post accountability mechanisms. However, certain forms of accountability, particularly ongoing control or sanctions, pose a risk to the Board's independence. A comparative analysis highlights both horizontal and vertical misalignments between EDPB and national guidelines, suggesting that the EDPB's role in providing cohesive guidance could be strengthened. 

Flags

'Flag within a Flag: Understanding the Ongoing Cultural Significance of the Union Jack in the Australian Flag' by Tracey Mee in (2024) 48(3) Journal of Australian Studies 365-379 comments 

In Australia, social scientists have long understood the importance of national symbols and the role they play in both the construction and maintenance of the nation, but in-depth analysis of the national flag has been overlooked. In particular, the cultural significance of the British flag that sits within the Australian national flag warrants focused consideration, as it symbolises the moment Australia became a British possession in multifarious ways. In this article, a critical analysis of the Australian flag demonstrates how the primary symbol of the nation can heighten White privilege through its official point of honour. Vexillology and Indigenist Standpoint Pedagogy provide a framework from which to deconstruct the Australian flag. This article conducts a critical examination of the social, institutional and historical frameworks that support the flag to argue that it is an ongoing signifier of White cultural power. ... 

The Australian national flag is a symbol that communicates both explicit and implicit messages to its citizens as a collective and as individuals. This article draws from and furthers my PhD research, which critically examines the Australian nation through an investigation of the national flag.Footnote1 Analysis of the flag’s history and its applications across a range of sites reveals the cultural significance of the Australian flag, which carries the British flag as its official point of honour. My research demonstrates that discussions about the Australian national flag remain framed by Anglocentric history, sentiment and traditions. Furthermore, I argue that when non-Indigenous Australians engage in debate about the national flag, they routinely fail to foreground or incorporate Indigenous Australian perspectives.Footnote2 What is missing from these discussions is critical analysis of the flag and its capacity to operate as a symbol of White cultural power that is reinforced by the enduring authority of the Union Jack. The task at hand, therefore, is to reveal the pedagogical influence of the flag. This article begins with a background discussion that engages with various symbols of Australian national identity and highlights some of the rhetorical strategies deployed in their defence. Following this, I turn my attention to the historical development of Australia’s national flag before investigating various dynamics encoded in a national flag. Finally, I use the principles of meta-vexillological reflection alongside Indigenist Standpoint Pedagogy (ISP) to examine how the historical, institutional and social structures of Australian society work together to reinforce the legitimacy of the flag and the messages that it transmits.

Han Dynasty skepticism

The Lunheng (Balanced Discourses) by Wang Chong (Wang Ch’ung) (25—100 C.E.) features a robust criticism in Lun si (Discussion Concerning Death) of contemporary belief in ghosts, using three arguments :

2)  population - if people become ghosts when they die, there should be more ghost sightings than living people, as the number of people who have lived in the past and died is far greater than the number of people now living. However,  'ghost' sightings are uncommon.  

3) efficacy - when someone is harmed, that person will seek a magistrate and bring a case against the party who harmed them. If  people become ghosts when they die and can interact with living humans, every ghostly murder victim would be visiting the magistrate, identifying the killer and the means of murder, and leading the magistrate  to the body and evidence. The visits are never witnessed.

1) embodiment - death  results from the body losing the animating qi (vital essence). Once the qi is separated from the body, the body decays. If the qi is still existent, how can it manifest in the form of a physical shape? It is not a body, it is qi. When we see a ghost, we see a body. If people have died, they no longer have a body, so where could they get another one? They cannot take over another living body, which already has its own qi. The belief that people become ghosts on their death is nonsensical.  

WA privacy and FOI regimes

The Privacy and Responsible Information Sharing Bill 2024 (WA), awaiting assent and to be read alongside the WA Information Commissioner Bill 2024 (also at the assent stage),  is intended  to — 

• provide a framework to protect the privacy of personal information handled by public entities, Ministers, Parliamentary Secretaries and contracted service providers to public entities; 

• provide a framework to authorise the responsible sharing of information held by public entities; 

• establish the office of Chief Data Officer; 

• amend the Freedom of Information Act 1992; and 

• make consequential amendments to other Acts. 

 The privacy provisions of the Bill are described as seeking to introduce privacy protections for individuals in the handling of their personal information by IPP entities. 

At the core of these privacy protections are the 11 Information Privacy Principles (IPPs). The IPPs are general rules that guide the handling of personal information. The Bill includes two flexibility mechanisms that allow IPP entities to depart from the IPPs in limited circumstances. First, IPP entities may develop privacy codes of practice which are intended to give them flexibility in the way that they manage personal information. Privacy codes of practice must be as stringent as the IPPs, are approved by the Governor on the recommendation of the Information Commissioner and are disallowable by Parliament. 

Second, on application, the Information Commissioner may make a public interest determination that the public interest in doing an act or engaging in a practice substantially outweighs the public interest in complying with the IPPs. A public interest determination can be temporary (less than 6 months) or longer, and is disallowable by Parliament. 

The Bill will also establish a mandatory information breach notification scheme to ensure that affected individuals are made aware of serious breaches of their personal information, as well as the Information Commissioner. 

The Bill will require IPP entities to undertake a privacy impact assessment before engaging in a high privacy impact function or activity (i.e. functions or activities likely to have a significant impact on the privacy of individuals), to identify privacy risks and implement measures to mitigate those risks. The Bill will also provide a clear pathway for individuals who consider that their privacy has been interfered with to make a complaint, and confer various functions and powers on the Information Commissioner to investigate and enforce compliance by IPP entities with the privacy provisions. The offices of Information Commissioner and Privacy Deputy Commissioner are established under the Information Commissioner Bill 2024. 

The responsible information sharing provisions of the Bill seek to enable government to share its information for the benefit of the community, through the entering into of information sharing agreements. It overcomes existing legislative barriers to support information sharing for permitted purposes and requires public entities to ensure strong governance, privacy and security safeguards are in place. 

The sharing of government information by public entities under the Bill is voluntary. There is no obligation on public entities to disclose information under the Bill (subject to the Ministerial power of direction). Certain categories of information also cannot be shared at all under the responsible information sharing framework. 

The Bill will require all proposed providers to assess the risks and benefits to sharing information through the application of the Responsible Sharing Principles (RSPs). The RSPs are based on the internationally recognised 'Five Safes', a framework to help organisations make decisions about data sharing. 

The Bill will also require parties to undertake a privacy impact assessment and an Aboriginal information assessment in certain circumstances before entering into an information sharing agreement. The Bill will establish a Chief Data Officer, a public servant who sits in the information sharing Department and whose functions include building the capability of public entities to share information in accordance with the Bill. The Bill will also establish a statutory committee called the Privacy and Responsible Information Sharing Advisory Committee, which has the function of advising the Chief Data Officer in relation to the performance of their functions.

The complementary Information Commissioner Bill 2024 seeks to establish three new commissioners to support the privacy provisions of the Privacy Bill and the Freedom of Information Act 1992. 

 The bill will establish a tripartite, single-authority structure whereby the regulation of privacy and freedom of information will sit within one organisation. The model recognises the complementary nature of privacy and freedom-of-information laws. Both are underpinned by common principles of transparency and accountability. Both involve the consideration and balancing of the public interest in the protection of personal privacy with the free flow of information for public benefit. In an environment where privacy and information access practices are being strongly challenged by the digital environment, having a single regulator empowered to oversee and guide the public sector on both matters provides Western Australia with contemporary and effective oversight that best matches public expectation. 

The first of the commissioners is the new Information Commissioner, who will have overall responsibility for both privacy and freedom of information matters. The second is the Information Access Deputy Commissioner, who will be responsible for freedom-of-information matters under the Freedom of Information Act 1992. The current Information Commissioner under the Freedom of Information Act 1992 will be transitioned across to this deputy role. The third is the Privacy Deputy Commissioner, who will be responsible for privacy matters under the Privacy and Responsible Information Sharing Bill 2024. 

The Information Access Deputy Commissioner and Privacy Deputy Commissioner are deputies of the Information Commissioner and will be subject to the direction of the new Information Commissioner. The three commissioners will be supported by staff appointed under part 3 of the Public Sector Management Act 1994. It is intended that a department known as the Office of the Information Commissioner will be established under the Public Sector Management Act 1994, akin to the approach taken in respect of other independent offices such as the Office of the Auditor General, the Office of the Inspector of Custodial Services and the Public Sector Commission. The new Information Commissioner will be the head of this department. ... 

Part 2 of the bill will provide for the appointment of each of the commissioners. Each commissioner will be appointed by the Governor for up to five years and is eligible for reappointment once. Each commissioner will be eligible for appointment only if the person is or has been a legal practitioner of at least five years’ standing or is, in the opinion of the Governor, suitable for appointment as a commissioner by reason of the person’s legal qualifications and experience. Each commissioner is not part of the public service. This part also deals with matters ancillary to their appointment such as their remuneration and terms and conditions of service, the taking of an oath or affirmation of office, and the appointment of acting commissioners. 

Part 3 of the bill will provide for the functions and powers of each of the commissioners and includes a power of delegation. 

Part 4 of the bill will provide for staff and related matters. Staff are to be appointed under part 3 of the Public Sector Management Act 1994 to assist the commissioners in the performance of their functions. In addition, the Information Commissioner may seek the services of officers in the public service or engage persons to provide services, information or advice to the commissioners. 

Part 5 of the bill contains miscellaneous provisions relating to the Information Commissioner’s requirement to report directly to Parliament, secrecy provisions, protection from liability and general regulation-making powers. Part 6 of the bill contains transitional provisions, including provisions to transition the current Information Commissioner to the Office of Information Access Deputy Commissioner. Staff of the current Information Commissioner will also be transitioned to the new department. 

In the Information Privacy Bill 'Personal information' means 

information or an opinion, whether true or not, and whether recorded in a material form or not, that relates to an individual, whether living or dead, whose identity is apparent or can reasonably be ascertained from the information or opinion.

The definition includes a non-exhaustive list of kinds of information that may be personal information: 

• a name, date of birth or address; 

• a unique identifier, online identifier or pseudonym; 

• contact information; • information that relates to an individual’s location; 

• technical or behavioural information in relation to an individual’s activities, preferences or identity; 

• inferred information that relates to an individual, including predictions in relation to an individual’s behaviour or preferences and profiles generated from aggregated information; 

• information that relates to 1 or more features specific to the physical, physiological, genetic, mental, behavioural, economic, cultural or social identity of an individual.

Sensitive personal information means personal information — 

• that relates to an individual’s

o racial or ethnic origin; or 

o gender identity, in a case where the individual's gender identity does not correspond with their designated sex at birth; or 

o sexual orientation or practices; or 

o political opinions; or 

o membership of a political association; or 

o religious beliefs or affiliations; or 

o philosophical beliefs; or 

o membership of a professional or trade association; or 

o membership of a trade union; or o criminal record;

 or 

• that is health information; or 

• that is genetic or genomic information (other than health information); or 

• that is biometric information; or 

• from which information of a kind referred to in any of paragraphs (a) to (d) can reasonably be inferred.

Property

'Proprietary Data, Open Data, Data Commons: Who Owns the Data? How to Best Reconcile Conflicting Interests in Exploiting the Value of Data and Protecting Against its Risks' by Luisa Kruse and Maximilian Grafenstein comments

 The European data strategy aims to make the EU a leader in a data-driven world. To this aim, the EU is creating a single market for data where 1) data can flow across sectors for the benefit of all; 2) European laws like data protection and competition law are fully respected; and 3) the rules for access and use of data are fair, practical and clear. In order to structure the corresponding initiatives of legislators and public authorities, it is important to clarify the data ownership models on which the initiatives are based: Proprietary data models, Open Data models or so-called data commons models. Based on a literature analysis, this article first provides an overview of the discussed economic and social advantages and disadvantages of proprietary and Open Data models and, against this background, clarifies the concept of the data commons. In doing so, this article understands the data commons concept to mean that everyone has an equal right in principle to exploit the value of data and control its associated risks. Based on this understanding, purely technical power of the data holder to exclude others from “her” data does not mean that she has a superior or even exclusive right to generate value from the data. By means of legal mechanisms, the competent legislator or public authorities may therefore counteract such purely de facto powers of data holders by opening their technical access control over data for other parties and define the conditions of its use. In doing so, the interests of the data holder in keeping the data for themselves must be weighed up against the interests of data users in using the data as well as the interests in controlling the related risks of all parties affected by this use. While this balancing exercise may be established, in a more or less general manner, by the European or national legislator or even by municipalities, data intermediaries will have to play a central role in ensuring that this balancing of interest is resolved in specific cases. Data intermediaries may do this not only by specifying the general data usage rules provided by the legislators and municipalities in the form of context-specific access and use conditions but above all by monitoring compliance with these conditions.

Solutionism?

'Where Technology Leads, the Problems Follow. Technosolutionism and the Dutch Contact Tracing App' by Lotje E. Siffels and Tamar Sharon in (2024) 37 Philosophy & Technology 125 comments 

In April 2020, in the midst of its first pandemic lockdown, the Dutch government announced plans to develop a contact tracing app to help contain the spread of the coronavirus – the Coronamelder. Originally intended to address the problem of the overburdening of manual contract tracers, by the time the app was released six months later, the problem it sought to solve had drastically changed, without the solution undergoing any modification, making it a prime example of technosolutionism. While numerous critics have mobilised the concept of technosolutionism, the questions of how technosolutionism works in practice and which specific harms it can provoke have been understudied. In this paper we advance a thick conception of technosolutionism which, drawing on Evgeny Morozov, distinguishes it from the notion of technological fix, and, drawing on constructivism, emphasizes its constructivist dimension. Using this concept, we closely follow the problem that the Coronamelder aimed to solve and how it shifted over time to fit the Coronamelder solution, rather than the other way around. We argue that, although problems are always constructed, technosolutionist problems are badly constructed, insofar as the careful and cautious deliberation which should accompany problem construction in public policy is absent in the case of technosolutionism. This can lead to three harms: a subversion of democratic decision-making; the presence of powerful new actors in the public policy context – here Big Tech; and the creation of “orphan problems”, whereby the initial problems that triggered the need to develop a (techno)solution are left behind. We question whether the most popular form of technology ethics today, which focuses predominantly on the design of technology, is well-equipped to address these technosolutionist harms, insofar as such a focus may preclude critical thinking about whether or not technology should be the solution in the first place. 

At the outbreak of the COVID-19 pandemic in early 2020, governments and health authorities around the world turned to digital technology for support in addressing the rapid spread of the virus. Particularly promising was the idea of auto-mating contact tracing; a public health strategy for containing infectious disease outbreaks that involves identifying infected individuals and informing the people they have been in contact with that they are at risk (EC, 2020; WHO, 2020). Digitizing (part of) the contact tracing work would enable the employment of this tried-and-tested method on the large scale of infections that COVID-19 brought with it (de Jonge, 2020; Ferretti et al., 2020; Wacksman, 2021). At the same time, digital contact tracing raised substantial privacy and surveillance risks (Ada Lovelace Institute, 2020; McGee et al., 2020), had a high probability of false positives (Lee, 2020; Vaughan, 2020), and its overall effectiveness was (and remains) questionable (Chiusi, 2021; ter Haar et al., 2023). Many countries ended up developing smartphone- based apps that automatically trace points of contact between individuals, and alert users when they have been in contact with someone carrying the virus. The design of the apps and its consequences for citizens’ privacy was fiercely debated and differed per country, with the Bluetooth-based and decentralized design being the most widespread (Shahroz et al., 2021; Lanzing et al., 2022). At the time of writing, most of the apps are no longer in use (EC, n.d.). 

On April 7 2020, during the first lockdown, the Dutch government also announced plans to develop a contact tracing app, the Coronamelder. The announcement was a response to the overburdening of manual contact tracers, who could not keep up with the growing need for contact tracing. Half a year later, in the fall of 2020, the Coronamelder was released for public use. But where initially the app was supposed to address the overburdening of manual contact tracers by providing support, the app now no longer seemed to have anything to do with this overburdening. The aim of the app had changed drastically. In this paper we contend that throughout the process of developing and rolling out the Coronamelder, the problem the app was initially meant to solve changed over time without the solution – a smartphone-based contact tracing app – undergoing any modification. We argue that this makes it a prime example of technosolutionism. 

Numerous critics have argued that the pandemic has shown how, in times of crisis, there is a tendency to turn to digital solutions to address public policy problems (Klein, 2020a, 2020b; Morozov, 2020). Many references to technosolutionism in relation to contact tracing apps were made, both in general (Harjric, 2020; Michael et al., 2020; Mann et al., 2022), and in the Dutch context (Appelman et al., 2020). 

However, with some exceptions (Campbell-Verduyn & Gstrein, 2024; Maschewski & Nosthoff, 2022), there has been little effort to describe the political development and rollout of contract tracing apps and the specific role technosolutionism played in it. Moreover, most discussions of contact tracing apps and technosolutionism make use of what we call a thin conception of technosolutionism. This overlooks its constructivist dimension and equates it with the simpler concept of “technological fix”, thereby failing to recognize the potency – and dangers – of technosolutionist thinking in public policy contexts, and how it might be prevented in the future. Through this article, we hope to contribute to the literature on technosolutionism in several ways: by elaborating a thick conception of technosolutionism that embraces a constructivist approach, by showing what technosolutionism in the context of public policy making does, and by showing which harms a technosolutionist problem construction can provoke. We do this by following the problem that the Coronamelder was supposed to solve, and how it shifted to fit the Coronamelder solution, rather than the other way around, in the period between April and December 2020. Our analysis focusses specifically on the way government officials who were involved in the development of the app conceptualized the problem it sought to solve. We reviewed policy documents during this time that highlight the purpose and development of the app, including advice from committees, press conferences, parliamentary debates and letters from the Minister of Health to inform Parliament. We specifically sought out policy documents where the aim or purpose of the app are described, explicitly and implicitly, as well as the app’s effectiveness. Subsequently, to clarify our findings we had several conversations with persons involved in the development of the app, amongst whom government officials. 

The paper proceeds as follows. In section 2, we distinguish between a thick and thin conception of solutionism, where the thick conception follows Morozov’s (2013) definition of technosolutionism, which involves a constructivist and temporal element of looking back from the solution and constructing a problem that justifies its implementation. Taking inspiration from Latour (2003), furthermore, we argue that it is not the fact that problems are constructed per se that is problematic with technosolutionism. Rather, that technosolutionist problems are not constructed well. In the context of public policy making, we contend, good problem construction implies careful deliberation and discussion of alternative solutions. Something we find to be painfully lacking in technosolutionism, we argue in Section 3, as we show how the problem definition follows the solution and is twisted to fit the solution, rather than the other way around. In Section 4 we zoom in on how technosolutionist problems are constructed. We show several moments of contestation, negotiation and stabilization in the construction of the problem that the Coronamelder sought to solve, which help us identify technosolutionism as a mechanism. In Section 5, drawing on our analysis, we describe some of the general harms of technosolutionism in the public policy context. These include a subversion of democratic decision making, the presence of new and powerful actors in the form of Big Tech companies, and the creation of what we call “orphan problems”: problems that initially triggered the development of a technosolution, but were abandoned when they no longer fit the technosolution. We believe that the ethical reflection which had been applied to the Coronamelder at the time was ill-equipped to address these harms that technosolutionism brings forth, since its focus was exclusively on the design of the technology. This focus precludes critical thinking about whether or not the technology should be developed in the first place. We contend that this type of ethical reflection is prevalent in ethics of technology and argue for a broader ethical reflection, one that includes consideration of democratic values and the question of how technological (vs. non-technological solutions) may impact them.

Protests

The recommendations in the Hodgkinson External Review Report for the University of Sydney Senate, commissioned after protests mid-year, are as follows. The University has resolved to accept the recommendationsin principle. 

• The prohibition on encampments as a form of protest on any University campus should be maintained as part of the current review of the Campus Access Policy. 
• The prohibition against any form of protest within a building on the University campus, and the impeding of access to and exit from any building by protest, be maintained following the review of the Campus Access Policy. 
• The University prohibit any student from addressing those present in a lecture, seminar or tutorial prior to the commencement of the lecture, seminar or tutorial on any subject matter. A breach of the prohibition may be considered misconduct. 
• The University should hold Organisations responsible if posters identifying them or an event which they are involved in are put up on campus in breach of the Advertising on Campus Policy. 
• That the University develop a range of sanctions including the withholding of funding to an Organisation which can be imposed on an Organisation found to be in breach of University policy. 
• Where an Organisation is repeatedly acting in breach of University policy, consideration should be given to precluding its office and position holders (or some of them) from being eligible to hold an office in that or any other Organisation receiving University funding. 
• The University should continue to support its review of its complaints procedures with a view to a complete overhaul and simplifying every aspect of it. The review of its complaints procedures should consider establishing a single central office to receive and process all complaints. 
• The University should strengthen existing mechanisms for alternative dispute resolution processes, such as mediation, as part of its review of the complaints procedures. Complainants should be advised, where appropriate, that alternative dispute resolution is an option available to them. 
• The University should publish a regular report to the Senate containing the number of complaints received, the nature of the complaints, the number of complaints resolved since the last report and the timeframe for the resolution of outstanding complaints. The information contained in the report should be presented in such a way that it does not identify the individuals mentioned in the complaints. 
• The University should publish a public report that identifies the range of penalties imposed in matters where a breach of University policy has been substantiated. 
• The University should amend its policies and procedures to make clear that each person utilising a word or phrase is responsible at the time the word or phrase is used to identify to the audience the context in which it is used. (New Civility Rule) 
• A failure to conduct a lecture, seminar, tutorial or a meeting which takes place within any of the University’s facilities in accordance with the New Civility Rule should be recognised as misconduct and treated accordingly. 
• The University’s policies be amended to make clear that Organisations are responsible for conducting all meetings held by them using University facilities in compliance with the Civility Principles. Where an Organisation breaches this requirement, it will be liable to sanction for breach of the University’s policy. 
• The University policies should be amended to require Organisations, when conducting a meeting using University facilities, to comply with the University’s Civility Principles. 
• In order to hold an office or position within an Organisation the persons holding that office or in that position must have completed the Engaging with Civility module. 
• Where an Organisation permits a person to hold an office or act in a position, and that person has not completed the Engaging with Civility module, both the Organisation and individual should be held accountable. Where a person holds an office or occupies a position without completing the Engaging with Civility module, the person's breach of the policy would amount to misconduct. 
• An Organisation should be held responsible for a breach of the policy where it permits a person who has not completed the Engaging with Civility module to hold an office or occupy a position and subject to sanction which could include the withdrawal of their funding in whole or in part. 
• The policy review presently being undertaken and the Policy Working Group should be supported with a view to achieving a review of all of the University’s policies and the simplification of them. 
• The University should approach both the NSW Police and the Federal Police with a view to entering into with them formal protocols which set out how they can assist the University if the need arises. 
• That attaching banners to the footbridges be prohibited.

Bugs

Statistics from today's annual report to the national parliament on the Surveillance Devices Act 2004 (Cth): 

• In 2023–24, 6 law enforcement agencies were issued 636 surveillance device warrants, a decrease of 46 from the 682 issued in 2022–23. 

• In 2023–24, 12 applications for surveillance device warrants were refused by an issuing authority, compared to the one refused in 2022–23. 

• In 2023–24, 18 computer access warrants were issued to law enforcement agencies, an increase of 7 from the 11 issued in 2022–23. No computer access warrants were refused in 2023-24, compared to 2022–23 where one computer access warrant was refused. 

• One data disruption warrant was issued during 2023–24, an increase of 1 from the 0 issued in 2022–23. No data disruption warrants were refused in 2022–23 or in 2023-24. 

• In 2023–24, 2 network activity warrants were issued, a decrease of one from the 3 issued in 2022–23. No network activity warrants were refused in 2022–23 or 2023–24. 

• In 2023–24, 244 applications to extend surveillance device warrants were granted, representing an increase of 145 from the 99 granted in 2022–23. Applications to extend warrants are often required due to the prolonged nature of investigations for complex and serious crime (where evidence gathering may not have been completed within 90 days). 

• In 2023–24, 17 retrieval warrants were issued to law enforcement agencies in order to retrieve lawfully installed surveillance devices, a decrease of 4 from the 21 issued in 2022–23. 

• In 2023–24, 10 tracking device authorisations were issued, a decrease of 7 from the 17 issued in 2022–23. No tracking device retrieval authorisations were issued in 2023-24, as was the case in 2022–23. 

• In 2023–24, information obtained under the SD Act contributed to 148 arrests, 102 prosecutions, and 18 convictions. In 2022-23, information obtained under the SD Act contributed to 75 arrests, 87 prosecutions and 52 convictions.

National AntiRacism Framework

The Australian Human Rights Commission has released its ambitious The National Anti-Racism Framework: A roadmap to eliminating racism in Australia, with 'a call to action for reform across Australia’s systems and structures, including in the justice and legal system, health, education, workplaces, media and the arts, and data'. 

 Recommendations are 

 1. The Australian Government commit to this National Anti-Racism Framework to eliminate racism in Australia. The National Anti-Racism Framework should set out national commitments over a 10-year period, with two 5-year implementation plans created for each of the implementation plans identified below. The National Anti-Racism Framework should: • acknowledge the systemic and structural nature of racism, including the historical and ongoing impacts of settler colonisation on First Nations peoples • be intersectional, community-centric, and recognise racism as a complex and shifting phenomenon • embed truth-telling and self-determination for First Nations peoples • be adequately, appropriately, and sustainably funded • include mechanisms for co-design and participation of First Nations peoples and other negatively racialised communities in the Framework’s operation • set measurable targets as informed by the needs of First Nations and other negatively racialised communities • identify how the Framework interacts with other national frameworks, agreements, and plans, particularly those that address intersecting forms of discrimination • include a monitoring, evaluation, and learning framework with public reporting at regular intervals. 

 

2. The Australian Government establish a National Anti-Racism Taskforce, to be co-chaired by the Race Discrimination Commissioner and a Secretary (representing the Australian Government’s Secretaries Board), with senior government membership from across federal, state and territory jurisdictions, and relevant peak organisations, to oversee and advise on the implementation of the National Anti-Racism Framework. Australian governments fund and work in partnership with the National Anti-Racism Taskforce to develop and implement: a. National Anti-Racism Framework First Nations Implementation Plan and b. National Anti-Racism Framework Implementation Plan. 

 

3. Australian governments, in partnership with the Coalition of Peaks, develop a nationally recognised definition of First Nations cultural safety, with minimum standards, for application across sectors, including health. 

 

4. Australian governments fully implement their commitments under the National Agreement on Closing the Gap, including to work in genuine partnership with, and adequately fund, Aboriginal and Torres Strait Islander peoples and organisations to participate in shared decision making across government portfolios. 

 

5. Australian governments prioritise their commitment to building the Aboriginal and Torres Strait Islander community-controlled sector and provide ongoing and adequate funding for the sector and organisations to deliver culturally safe services, particularly for rural and remote communities. 

 

6. Australian governments provide adequate funding to local governments to establish or improve local anti-racism initiatives and programs informed by the Framework. 

 

7. The Australian Government fund the Australian Human Rights Commission to co-design, with communities that experience racism, a Monitoring, Evaluation, and Learning Framework (‘MEL Framework’) that operates for the lifespan of the National Anti-Racism Framework. This MEL Framework should complement accountability mechanisms under the National Agreement on Closing the Gap. An independent organisation should then be procured, with guidance from the Race Discrimination Commissioner and the Aboriginal and Torres Strait Islander Social Justice Commissioner, to undertake the monitoring, evaluation, and learning with insight from First Nations and other negatively racialised communities. 

 

8. The Australian Parliament enact a national Human Rights Act incorporating findings from the Australian Human Rights Commission’s 2023 report Free and equal: Revitalising Australia’s commitment to human rights. 

 

9. The Australian Government comprehensively incorporate the United Nations Declaration on the Rights of Indigenous Peoples into domestic law, including: a. taking steps to implement the UNDRIP into law, policy, and practice b. working in partnership with Aboriginal and Torres Strait Islander peoples to create a National Action Plan to implement the UNDRIP c. independently auditing existing laws, policies, and practice for compliance with the UNDRIP. 

 

10. The Racial Discrimination Act 1975 be amended to include a positive duty, to eliminate racial discrimination, a. by an employer, business or undertaking b. in the provision of goods and services, with a particular focus on health, education, retail and hospitality, sport, housing, and financial settings c. in the access to places and facilities d. in the provision of land, housing and other accommodation.  

 

11. The Racial Discrimination Act 1975 be amended to provide powers to the Australian Human Rights Commission to assess compliance with the positive duty in recommendation 10 and for enforcement. This includes providing the Australian Human Rights Commission with the power and funding to: a. undertake assessments of the extent to which an organisation has complied with the duty, and issue compliance notices if it considers that an organisation has failed to comply b. enter into agreements/enforceable undertakings with the organisation c. apply to the Court for an order requiring compliance with the duty. 

 

12. Australian governments introduce effective legal protections against online hate, with particular attention given to regulation and enforcement against, and liability of, digital platforms. These protections should be informed by consultation with First Nations and other negatively racialised communities. 

 

13. The Australian Government take immediate steps to ensure that migration and citizenship laws comply with international human rights law, with particular attention given to inequities experienced by negatively racialised people seeking asylum, and refugees and migrants. 

 

14. The Australian Government consider options for legal reform that are not already addressed with or under recommendations 10-11 on the introduction of a positive duty to eliminate racism, including but not limited to: a. addressing systemic and institutional racism experienced by First Nations and other negatively racialised people b. addressing religious-based discrimination c. addressing intersectional experiences of racism d. eliminating racism as is required under Australia’s obligations under the International Convention for the Elimination of Racial Discrimination. 

 

15. The Australian Government review the effectiveness of current protections against exploitation in employment and migration legislation, and develop further strategies to address unlawful arrangements experienced by migrants in precarious work, particularly those on temporary visas including people seeking asylum and international students. 

 

16. The Australian Government establish an independent review of counter-terrorism laws, policies, and practices to investigate potential discriminatory application and effect on different communities and to recommend ways to address it. 

 

17. The Australian Government investigate options for legal protections against caste discrimination, including potential reform of existing legislation. 

 

Workplaces and Employment 

 

18. All employers ensure that senior leadership have responsibility for organisational change on intersecting forms of discrimination, including racism, and that it is not solely placed on Aboriginal and Torres Strait Islander and other negatively racialised employees. 

 

19. Medium and large employers in all sectors develop internal workplace anti-racism strategies. Strategies must include measures for preventing and responding to racism in the workplace, as an interim measure until recommendation 10 is implemented. 

 

20. Employers, including governments, commit to the development and implementation of ongoing, mandatory workplace anti-racism training, resources, and educational materials with anti-racism organisations or practitioners. 

 

21. Medium and large employers in all sectors develop an internal cultural safety framework for First Nations staff. This should complement their internal anti-racism strategies for all staff including non-Indigenous staff who experience racism. 

 

22. Medium and large employers in all sectors develop, implement, monitor, and evaluate strategies for hiring, promotion, and retention of staff identifying as First Nations and from other negatively racialised backgrounds to increase representation in the workforce, particularly in leadership and senior roles. 

 

23. Australian governments incorporate cultural safety codes of practice into workplace health and safety legislation. 

 

24. Australian governments establish a cross-sector First Nations Workforce Development Strategy that incorporates data sharing agreements and accountability mechanisms. 

 

25. Australian governments fund the Australian Human Rights Commission to convene a national council of state and territory anti-discrimination and human rights bodies, work, health, and safety agencies, and relevant peak organisations to develop nationally consistent standards for employers and employees to report experiences of racism and racial discrimination in the workplace. 

 

26. The Independent Parliamentary Standards Commission develop behavioural codes of conduct for all Australian Parliamentarians and staff that take a zero-tolerance approach to racism with appropriate sanctions. Australian Parliamentarians and their staff be required to complete regular anti-racism training that addresses workplace behaviour and prevents racism in all public communications.

 

Education and Public Awareness 

 

27. Australian governments fund a holistic cultural safety and anti-racism review of existing policies and practices that affect staff and students in primary and secondary schools, through consultation with children and young people. The findings must inform the development and implementation of cultural safety and anti-racism reforms. 

 

28. Australian governments commission and fund comprehensive mandatory professional development for primary and secondary school staff (including leadership staff members) to build schools’ capacity to identify, prevent, and manage incidents of racism and develop the skills, tools, and capability to have discussions about racism and its effects in contemporary Australia. 

 

29. Australian governments and education providers (early childhood to tertiary) co-design and incorporate into curricula nationally consistent anti-racism resources and educational materials for staff and students that focus on recognising and rejecting racism: in partnership with Aboriginal and Torres Strait Islander organisations and practitioners, including material about the historical and ongoing impacts of settler colonisation. This should be supplemented by local, place-based materials a. b. in partnership with non-Indigenous anti- racism experts from negatively racialised communities, including material about Australia’s migration histories, contemporary forms of racism, and ongoing impacts of discriminatory policies. 

 

30. Australian governments and education providers (early childhood to tertiary) implement curricula reform: a. in partnership with Aboriginal and Torres Strait Islander organisations and practitioners to embed First Nations knowledges, scholarship, and texts across all disciplines b. on the advice of other negatively racialised organisations and practitioners to better integrate knowledges, scholarship, and texts authored by non-Indigenous negatively racialised people. 

 

31. Australian governments and education providers (early childhood to tertiary) co- design with community experts, a nationally consistent, effective, comprehensive, and culturally safe mechanism for students, staff, families, and communities to safely and without fear of repercussions, report experiences of racism across educational settings and improve accountability, support, and redress services. 

 

32. Australian governments provide ongoing funding to the Australian Human Rights Commission to develop and maintain its public awareness and education campaigns and materials to improve racial literacy and understandings of intersecting forms of discrimination, in partnership with community-led organisations. 

 

33. Australian governments fund public awareness and education on anti-racism for the community sporting sector, in partnership with the Australian Sports Commission. 

 

34. Australian governments increase funding for research to address gaps in existing research and contribute to the evidence base on the efficacy of anti-racism initiatives and interventions in education settings, including systemic reforms. 

 

Justice 

 

35. Australian governments raise the minimum age of criminal responsibility to 14 years in all jurisdictions, without exception. 

 

36. The Australian Government establish an independent mechanism to monitor and report on the status of the implementation of the Royal Commission into Aboriginal Deaths in Custody. This role should be overseen by the Aboriginal and Torres Strait Islander Social Justice Commissioner, with adequate funding from the Australian Government. 

 

37. All Australian governments expedite putting into place national preventive mechanisms for all places of detention, consistent with Australia’s obligations under the Optional Protocol to the Convention against Torture, the Convention on the Rights of the Child, and the International Covenant on Civil and Political Rights. 

 

38. Australian governments conduct an external audit that investigates systemic racism, including police misconduct and negligence, and develop holistic reforms to institutional practices across all stages of the justice process from initial contact with law enforcement through to post-prison release. 

 

39. Australian governments fund existing, or develop new, community-specific approaches to diversion and rehabilitation for people in contact with the justice system, including community-based approaches to sentencing, alternatives to custody and court processes, and restorative and transformative justice solutions. 

 

40. Australian governments explore and fund community-informed and early intervention solutions beyond civil and criminal penalties to address far-right extremism and white supremacy in communities, particularly as they intersect with other forms of discrimination. These solutions must include centring community wellbeing, providing redress for the harms experienced by targeted individuals and communities, and a focus on atrocity-prevention. 

 

41. Australian governments provide ongoing funding to legal and support services, including community-controlled services, to provide culturally safe and trauma-informed access to justice for First Nations and other negatively racialised people. 

 

42. Australian governments increase funding to community-controlled agencies that support First Nations children and families in order to reduce child protection interventions. 

 

43. Australian governments review the adequacy and effectiveness of any anti- racism and cultural safety training within the justice system, including for police, legal aid providers, first responders, support services, and the courts, and implement mandatory and ongoing anti-racism and First Nations cultural safety training for leadership and staff. 

 

44. Australian governments, alongside police, relevant complaints-handling mechanisms, and non-government organisations, implement co-ordinated strategies to address personal and structural barriers to reporting experiences of racism. 

 

45. Australian governments support comprehensive, community-led data collection consistent with the principles of Indigenous Data Sovereignty on interactions with the justice system, including arrests, outcomes of justice, and the experiences of individuals within court processes. This is to be completed alongside work to implement recommendation 59 on a National Anti-Racism Data Plan. Media and the Arts 

 

46. Media organisations adopt guidelines that are grounded in an anti-racist approach to reporting about First Nations and other negatively racialised communities, such as Media Diversity Australia’s Race Reporting Handbook. 

 

47. The Australian Government strengthen regulation of media organisations on reporting related to First Nations and other negatively racialised communities, informed by the Australian Human Rights Commission’s forthcoming research on media regulation and standards. 

 

48. Australian governments and media organisations provide ongoing funding for community media outlets, including for First Nations-controlled media outlets. 

 

49. Digital platforms develop stronger, transparent protocols to allow users to report and remove racist content, including mis- and disinformation. These protocols should be informed by the Commission’s forthcoming research on interventions to address mis- and disinformation and online hate. 

 

50. Australian governments, media and arts organisations, and other private sector organisations fund campaigns, initiatives, and projects that are community-led and take a strengths-based approach to storytelling about First Nations and other negatively racialised communities. 

 

51. Media and arts organisations conduct regular audits of content to assess biases and gaps in the representation of diverse voices, and to collect and publish metrics on workplace representation of First Nations and other negatively racialised communities. This must include an assessment of whether media and arts organisations are meeting content targets and targets to improve the representation of First Nations and other negatively racialised staff. 

 

52. The Australian Government establish a research fund to better understand experiences of racism and effective anti- racism strategies to create a more accessible, diverse, equitable, and representative media and arts landscape in Australia. 

 

Health Data 

 

53. Australian governments identify racism as an urgent national health priority with significant impacts on the physical and mental wellbeing of First Nations and other negatively racialised communities. Solutions should prioritise partnership and shared decision making with at-risk communities, including people with disability and older persons. 

 

54. Australian governments mandate comprehensive cultural safety and anti-racism education throughout all health curricula, and within all workforce practice standards and regulation requirements. 

55. Australian governments fund healthcare providers to partner with First Nations peoples on the integration of traditional healing practices that acknowledge historical trauma into mainstream healthcare systems.  

58. The Australian Government fund a body comprising First Nations experts on Indigenous Data Sovereignty to partner with First Nations communities to embed Indigenous Data Sovereignty and Indigenous Data Governance on a national and state and territory level.   

59. The Australian Government adopt and fund a National Anti-Racism Data Plan (‘the Plan’). This Plan must outline a national approach to collecting, using, and managing data on experiences, reports, and impacts of racism across states and territories and local jurisdictions. To achieve this, the Australian Government resource the Race Discrimination Commissioner to: a. establish an advisory group comprising anti-racism data experts or practitioners from First Nations and other negatively racialised communities, and representatives from government agencies to oversee the Plan 

 

56. Australian governments provide adequate funding to develop targeted programs to address health issues disproportionately affecting at risk-groups within First Nations and other negatively racialised communities, particularly in rural and remote communities. b. inform and develop the substance of the Plan on the advice of the advisory group c. lead consultations with communities, academics, and data experts to inform the priorities, outcomes, and other details of the Plan d. ensure findings and outcomes from recommendations 58 and 60-63 are incorporated into the Plan. 

 

57. Australian governments provide adequate funding for interpreter services to be provided as standard within services, including Aboriginal and Torres Strait Islander language interpreters. This funding must also cover training on effective interpreter use and the recruitment of interpreters to meet evolving language needs. 

 

60. The Australian Government and relevant non-government organisations commit to collecting data about experiences of racism, including systemic and structural racism, in ongoing national surveys. The Australian Government provide appropriate funding where necessary to relevant agencies and non- government organisations to collect this data. 

 

61. Australian governments fund the Australian Human Rights Commission, anti-discrimination and human rights bodies, and work, health, and safety agencies to collect intersectional data under their respective mandates. The Australian Human Rights Commission be tasked to work in partnership with these bodies to develop an approach with advice from the body established under recommendation 58 on collecting disaggregated, intersectional data on complaints and reports, particularly as they relate to race/ ethnicity and racism in employment settings. 

 

62. Australian governments commit ongoing and adequate funding to existing or prospective third-party reporting mechanisms that take an anti-racist approach to collecting data about racism as it affects different communities to continue collecting this data and to strengthen or establish initiatives, including providing support services (e.g. psychological and legal support) to targets or witnesses of racism. 

 

63. The Australian Government review the Australian Standards for the Classification for Cultural and Ethnic Groups and the Standards for Statistics on Cultural and Language Diversity and develop new standards on the collection of administrative data about ethnic identity by adequately funding: a. the Australian Human Rights Commission to lead independent consultations on community understandings of race and ethnicity, with supporting research b. the Australian Bureau of Statistics to revise the data standards, informed by the research in (a) and from other relevant stakeholders. Outcomes from these processes should inform whether a question on ethnic identity should be introduced into future Australian Censuses. This may involve the establishment and funding of a Working Group, convened by the Australia Bureau of Statistics and as part of work under the National Anti-Racism Data Plan, to develop a question.