PhD Employment

'Australian doctoral employability: a systematic review of challenges and opportunities' by Li’An Chen, Inger Mewburn and Hanna Suominen in (2023) Higher Education Research and Development comments  

Research educators, scholars, and employers often debate the nature and purpose of doctoral training. Should doctoral degrees exist only to make new knowledge and replenish the academic workforce or are they part of broader societal-enhancement and employment agendas? Or both? This study aimed to identify and analyse tensions in Australian employability discourse in the doctoral degree. We systematically reviewed 41 articles published in journals and conferences on Australian doctoral employability training from 2000 to 2022 and put them in context with the broader debate about doctoral employability in the so-called ‘grey literature’ of government reports and policy papers. Our findings indicated that stakeholders are all grappling with the difficulty of meeting diverse learning needs and there are contested understandings of the value of the doctoral degree beyond academia. At the same time, we found a relatively poor evidence base for many claims that outcomes of doctoral education are poor for both students and employers. This paper will be of interest to research educators seeking to implement new training programs and policy makers trying to craft new initiatives to connect doctoral education with industry. 

 The authors argue 

 The PhD was originally conceived as training for academia, but now graduates go on to a wide range of careers (Vitae; Quality Indicators for Learning and Teaching (QILT)). Clearly PhD students need to be prepared for a range of career outcomes, but there is no consistent approach to embedding employability skills in the PhD curriculum. Taking a global view of the issues around doctoral education is useful for informing this ongoing debate (Sharmini & Spronken-Smith), but many international ‘solutions’ to local problems run the risk of missing out on characteristics specific to a national context (Thomson). For example, Australia has a massified and marketized education system (Marginson & Considine) with a larger proportion of international PhD candidates than most OECD countries (OECD,). The Australian doctoral education system includes Indigenous candidates (e.g., Aboriginals and Torres Strait Islanders) and provides a wide range of priority schemes in all universities to support their success. Therefore, it is necessary to carefully examine local characteristics of doctoral education to make the Australian PhD curriculum fit for purpose in the twenty-first century. To this end, this paper provides a detailed exploration of the literature on the issue of employability within Australian doctoralFootnote1 education with a view to making recommendations for future scholarly research, education, and policymaking. 

It is widely acknowledged that the Australian academic job market can no longer absorb all doctoral graduates. More than a decade ago, Neumann et al. noticed that only 23% of doctoral graduates in Australia were employed in research and teaching positions within academia. Both increasing casualization (Bosanquet et al) and heavy workload in academia (Bosanquet et al; McKinstry et al) seem to have ‘disillusioned’ many doctoral graduates. As a result, both governments and universities have been putting effort into making PhD graduates more employable beyond academia. 

While lists of employability goals set out in policy papers get longer, a coherent pedagogy to achieve that aim remains elusive. Scholars have noticed how unstructured doctoral skills training and industry programs can be (e.g., Manathunga et al; Molla & Cuthbert; Platow,). It is hard – and perhaps pointless – to assign blame for this incoherence; pedagogical improvements only happen if we try new initiatives. But unless we have some idea of what has worked (or not) in the past, we cannot move forward with confidence. By examining the relevant available literature, this paper will provide valuable context for research educators attempting to design curriculum and policy makers looking to drive new initiatives. 

Some of the current issues in PhD graduate employability can be traced back decades. It was not until 1948 that the first three PhDs were awarded in Australia (CBCS). Up to the second World War (WW2), Australia was an ‘importer’ of PhD talent, largely from the UK. After WW2, Australians looked to the USA for inspiration. PhD education was framed as a way to give countries a competitive edge (Dufty-Jones). 

While the idea of PhD graduates as an economic benefit is deeply entrenched in Australia, initially the PhD did not have a direct relationship with industry. The PhD was seen as a way of building the academic workforce and capacity for both research and teaching (Kemp). This strategy seemed to pay off until the mid-1990s, when the Australian academic workforce became increasingly unable to absorb all its PhD graduates (Kiley; McCarthy & Wienk). 

The uneven balance between demand and supply of PhDs was one of the drivers behind the policy statement by Kemp, which called for greater engagement with industry. This discussion paper on doctoral education suggested a range of policy changes to increase PhD completion rates, shorten completion time, and strengthen links with industry. Kemp pointed out the problem of skills inadequacy among Australian research graduates and the need to formalize training. The Research Training Scheme (RTS) was a direct outcome of this report, providing universities with direct government funding for research training for the first time. At the same time, domestic candidates had access to fee offsets and stipends to encourage participation. The design of the RTS aligned with ‘marketisation’ reforms of education in the late twentieth century (Marginson & Considine), providing a range of policy ‘carrots and sticks’; they have morphed over time into what is now called the Research Training Program (RTP) that provides, for instance, higher returns for universities to train a greater number of Science, Technology, Engineering, and Mathematics (STEM) PhDs. Crucially, the RTS also punished universities for non-completions, by only paying in arrears, forcing universities to shoulder all the risk. As a result, a whole species of specialists in research education was spawned, some of whom work in universities and others consult and provide services. The government has continued to ‘tinker’ with this system, for example, in 2022 proposing a ‘bonus payment’ for candidates who complete an industry internship during candidature. 

Although Australian politicians have made claims to developing a prosperous and expanding higher education sector via policies such as the RTP, Coates et al. argue that Australian doctoral education is not optimized yet, specifically with respect to catering to students and stakeholders’ needs. A range of government and commissioned reports (e.g., ACOLA; Australian Government Department of Education and Department of Industry; The Allen Consulting Group,) and empirical studies (e.g., Dufty-Jones; Guerin; Pitt) all raise different concerns. Stakeholders have constantly referred to efficiency, relevance, and employability problems related to doctoral programs in Australia (e.g., Hodgson et al; Molla & Cuthbert; Pitt & Mewburn). Employers, even academic employers, have claimed PhD-level graduates do not always meet their expectations (ACOLA; Pitt; The Allen Consulting Group). Younger PhD graduates have expressed apprehension about lacking industry experience, while older PhDs with industry experience report being stressed about employment precarity due to family, financial, and health-related issues (Spina et al). PhD graduates continue to be disillusioned with outcomes of the PhD in relation to their career (Guerin). 

Doctoral education has become a site of anxiety within the academy, surrounded by what Molla and Cuthbert call a ‘PhD crisis discourse’. Positive stories about the PhD are not common in the Australian news media, and the ‘chatter’ in social media groups containing or pertaining to doctoral study is filled with ‘doom and gloom’ predictions and stories of mental health issues. Sydney Morning Herald’s opinion article authored by the PhD graduate Astore is a good example of PhDs feeling disheartened and ill-supported in Australia. Many current Australian institutional responses to ‘PhD crisis discourse’, such as industry programs and skill training courses, have been based on the assumption that industry employers’ expectations for doctoral employees were not met (Molla & Cuthbert), but has sufficient research really been done? The rest of this paper will outline a more detailed picture of this ‘crisis discourse’ around post-PhD employability through a systematic review of 41 included articles from 2000 to 2022. So far as we are able to ascertain, there has been no published literature survey of Australian doctoral employability. One of our aims is to find gaps and opportunities to expand knowledge.

Privacy Attitudes

OAIC takeaways from the Commission's latest small-scale privacy attitudes survey - 

• Three in five (62%) Australians see the protection of their personal information as a major concern in their life. 
•  Eight in ten (82%) care enough about protecting their personal information to do something about it, however 57% do not know what to do.  Only a third (32%)  feel in control of their data privacy. 84% want more control and choice over the collection and use of their personal information. 
• The 2 most common steps Australians are taking out of concern for their data privacy are checking an email, text message or phone call is not a scam before providing their information, and using unique passwords and not sharing them.
•  Three-quarters (74%) feel data breaches are one of the biggest privacy risks they face today, up by 13 percentage points since 2020. 
• Most Australians place a high level of importance on their privacy when choosing a product or service: 70% say it is extremely or very important and 26% say it is quite important. 
•  While many do not know exactly how they can protect their own personal information, the majority would like business and government agencies to do more in this area. 
•  Seven in ten (69%) said they are aware of the Australian privacy law that promotes and protects the privacy of individuals, and 89% want the government to provide more legislation in this area. 
•  Almost all Australians think they should have additional rights under the Australian Privacy Act. These include the right to: ask a business to delete their personal information (93% believe they should have this right) object to certain data practices while still being able to access and use the service (90%) seek compensation in the courts for a breach of privacy (89%) know when their personal information is used in automated decision-making if it could affect them (89%) ask a government agency to delete their personal information (79%). Australians are generally unaware some organisation types are exempt from the Privacy Act. 
• The majority believe political parties and representatives (82%), businesses collecting work­‑related information about employees (81%), media organisations in relation to their journalism activities (78%) and small businesses (77%) should be required to protect personal information in the same way as federal government agencies and larger businesses. 
•  Three in five (58%) Australians do not know what organisations do with their data. People often feel they have no choice but to hand over their personal information if they want to access a service (50% agree or strongly agree). 
•  Australians trust health service providers and federal government agencies the most and social media companies and real estate agencies the least when it comes to the protection and use of their personal information. 
•  Less than half of people trust organisations to only collect the information they need, use and share information as they state, store information securely, give individuals access to their personal information and delete information when no longer needed. 
•  91% are concerned about the prospect of their personal data being sent overseas. 
•  55%  consider having to share some personal information if they want to use a service fair enough. However, they generally only consider it fair and reasonable to provide their name (81%) and email address (77%) to organisations and, to a lesser extent, their phone number (68%), date of birth (62%) and physical address (61%). 
•  There are certain practices Australians consider not fair and reasonable, including the online tracking, profiling and targeting of advertising to children (89% not fair and reasonable). 
• Almost half (47%) said they had been informed by an organisation that their personal information was involved in a data breach in the 12 months prior to completing the survey in 2023. Three-quarters (76%) said they experienced harm as a direct result. 
• 52% saw an increase in scams and spam and almost a third (29%) said they had to replace key identity documents, such as a driver’s licence or passport. One in ten (12%) experienced emotional or psychological harm. 
• 47% say they would stop using a service if their data was involved in a breach, but this drops to a third for people who have recently experienced a breach. 
•  12% said there was nothing an organisation could do to appease them in dealing with the impacts of a breach. 
• Most Australians are willing to remain with an organisation that has suffered a data breach, provided the organisation quickly takes action, such as putting steps in place to prevent customers from suffering harm. 
•  A quarter (26%) of Australians believe the most important way an organisation can protect their personal information is by only collecting the information necessary to provide the product or service. 
• Australians view the second most important action organisations can take is proactive steps to protect the information they hold (24%).

Comparative Law

'Comparative law, literature and imagination: Transplanting law into works of fiction' by Jaakko Husa in (2021) 28(3) Maastricht Journal of European and Comparative Law 371-389 discusses 

comparative law and literature as an approach to studying law culturally, addressing how the study of literature from the standpoint of comparative law identifies one way of coding legal cultural knowledge in literature. The interaction between the worlds of law and culture is addressed through imaginary legal transplants. By transplanting legal ideas from the real world to literature, authors imagine worlds as they construct legal meanings in their storytelling. Whereas a legal transplant is a notion filled with problems and paradoxes, in literature it is far less problematic. Imaginary legal transplants are different from real-world transplants because in the real world legal diffusion takes place in mutant form, transforming transplants into irritants. The legislator never controls the world completely, whereas in fictional literature the creator of a written work controls the created world. In this sense, it is argued, imaginary legal transplants are perfect transplants. 

 Husa argues 

Comparative law demonstrates that laws, legal institutions and legal doctrines do travel regardless of obstacles erected by borders between countries, legal systems, languages and even time. Demonstrating and tracing how law travels is part of what comparative law scholarship is about. For instance, the history of Roman law teaches, if nothing else, that legal ideas travel through time and space. Importantly, the issue of transplantability of legal norms and institutions across different legal traditions is not only a thing of the past, but very much a relevant issue today as well. Along similar lines, it should not come as a surprise that laws and legal ideas travel from reality into the realm of imagination, for instance into imaginary literature, although a similar phenomenon may also happen in film or theatre. This suggests a connection between comparative law and the study of law and literature. 

At first glance, the fields of comparative law and law and literature seem to have very little in common. The deceptively distant relationship appears intuitively correct on the surface because comparative law focuses on the differences and similarities between diverse legal traditions whereas law and literature examines the relationship between law and literature. However, as we know: appearances may be deceptive. Both fields entertain a cultural view towards law but they do not share the same theoretical assumptions as a nationally oriented doctrinal study of law. This paper discusses comparative law and literature as an approach to the study of law culturally, addressing how the study of literature from the standpoint of comparative law may identify one way of coding legal cultural knowledge in literature. This, in turn, tells us about law as a cultural phenomenon. The connection between comparative law and law and literature is not, however, non-existent, even though it is not well known today. Famous comparative law scholar John Henry Wigmore, who authored the massive three-volume Panorama of the World’s Legal Systems in the 1920s, sought to connect comparative law to the reading of poems and novels. Wigmore’s contribution to law and literature movement is acknowledged, yet this feature is not highlighted in comparative law circles. More recent connection between comparative law and law and literature can be found in William Ewald’s comparative jurisprudence, in which he provides insights into the use of literature for the understanding of the intellectual origins of German legal thought. Notwithstanding, law and literature normally plays at most a walk-on part in the comparative law scene. Studying law culturally opens new points of view towards basic questions about law: what is law, how does it work, how do we acquire information about it and – most importantly – how are the answers to these jurisprudential questions reflected in contemporary culture? Despite the inevitable difficulties, the very thought of cultural legal studies is rooted in the idea that the law possesses cultural power. In this sense, cultural legal studies also implies study of culture. In consequence, it is difficult to outline cultural legal studies without reflecting its relation to cultural studies in general. This brings even more difficulties because the notion of culture is notoriously challenging to define and indeed remains somewhat elusive even for those who engage in cultural studies. Moreover, legal scholarship has struggled in its attempt to define the notion of legal culture. The cultural turn in legal studies has certainly broadened the scope of research in law but it is has not provided a panacea. 

By and large, cultural studies as a scholarly arena refers to an interdisciplinary field of research and teaching that delves into how culture produces and modifies the experiences of individuals in their ordinary life, social relations and society as a whole. Cultural legal studies, in turn, addresses and highlights the diverse ways in which law and culture interact and mutually enrich one another. To be sure, cultural legal studies is not a mature field and can perhaps be described as an emanation that has ‘thus far been a relatively sporadic legal movement’. More specifically, cultural studies combine many fields including communication studies, literary studies, sociology and history, to mention but a few neighbouring disciplines. Cultural legal studies seeks to amalgamate legal and cultural studies by working across the porous boundaries among these fields. Arguably, we may regard cultural studies as a field that seeks to understand certain societal phenomena – such as music, cinema, literature or photography – through which societies, communities and individuals learn to live with history, the surrounding reality and possible future events. 

From the above it follows that cultural legal studies can be perceived as a rising field that seeks to understand cultural phenomena through the prism of law. This endeavour concerns an attempt to see law in culture. To simplify a great deal, cultural legal studies is essentially about studying law in cultural contexts. This means reaching outside the mainstream view of law as a normative discipline. Clearly, this kind of definition leaves a great deal open qua definition but, paradoxically, that is part of the attraction. The fact that there is something intellectually unfinished residing in the phrase ‘cultural legal studies’ makes it appealing. If cultural legal studies were a lock, stock and barrel kind of discipline, then it would arguably not be the inherently enticing unorthodoxy that it is. The endeavour to understand law culturally exceeds the limits of black letter law in a way that stirs our scholarly imagination. 

This paper discusses comparative law and literature as an approach to studying law culturally. The focus is on analysing how the study of fiction in literature, from a comparative law standpoint, may identify and highlight a way of coding legal cultural knowledge in literature. The interaction between the worlds of law and culture is addressed through what might be coined as an imaginary legal transplant. However, this paper excludes the educational/pedagogical aspect of comparative law and literature even though combining these fields may contribute to the teaching of law. A further caveat is in order before proceeding, because of the fields covered. Numerous journals, handbooks, collections, encyclopaedias and Festschrifts have been penned on both comparative law and law and literature. This means that one cannot aim for exhaustiveness in this paper, but merely seek to review and advance our incipient understanding of cross-cultural legal studies in the field of literature. That is to say, this paper outlines the nascent field of comparative law and literature.

PseudoLaw Personhood

In Richard v Beresford c/- Registrar-General of New Zealand [2023] NZHC 500 an adherent of pseudolaw unsuccessfully sought to sue himself in the non-existent NZ 'Court of Chancery'. 

The Court states 

[6] The claim is lengthy and sometimes difficult to understand. It does not comply with the High Court Rules 2016 and indeed asserts that Court rules are not to apply. It appears to seek declaratory and injunctive relief. The complainant wishes to have the claim determined in a court “of Chancery”, notwithstanding that no such court exists (or has ever existed) in New Zealand, in which the courts have a “fused jurisdiction”, meaning the ability to exercise both common law and equitable jurisdiction. 

[7] There is an immediate issue in that the complainant and the defendant are the same person. This is a result of what the complainant has described as the distinction between himself as “Richard” and the legal entity “RICHARD JOHN BERESFORD”, which he considers was created at the time of his birth through his birth certificate. This is presumably why the defendant is named as being “RICHARD JOHN BERESFORD c/- Registrar General of New Zealand”, which is likely intended to refer to the Registrar-General charged with the administration of the Births, Deaths, Marriages, and Relationships Act 1995. 

[8] The complainant appears to seek that the legal entity “RICHARD JOHN BERESFORD” as described in his birth certificate have its status changed from “living” to “deceased”, because:

The self-evident truth of the matter is that the extra feto embryonic material and placenta also born slightly later on that day also died on that day, it died by abortion and an act of violence with a weapon, died prematurely as an act of, maybe unwittingly by the assaulter, of intentional premeditated interference in the divine natural order of life, depriving me of my due remaining sustenance. Regardless i [sic] survived the premature abortion of my sustaining organ, whole, but at the end of the day, thankfully, my extra feto embryonic material and placenta became deceased. As the registered event entity is deceased, it [is] now required, pertaining to 88 of the United Nations Department of Economic and Social Affairs Handbook on Civil Registration and Vital Statistics Systems, Management, Operation and Maintenance, revision 1, New York, 2021, and as a function of the civil registration component, that the assigned PIN of the deceased person RICHARD JOHN BERESFORD, be changed, by retirement of the PIN of RICHARD JOHN BERESFORD by flagging the PIN or changing its status from “living” to “deceased”, as prescribed by law.

[9] Claims such as the present one are characteristic of the consent-based Sovereign Citizen, “dual personality” or “Organised Pseudolegal Commercial Argument” (OPCA) theories that have been consistently rejected by the courts as legally untenable and “without legal foundation”. 

[10] Pseudolegal claims:

...[mirror and co-opt] the language, forms and structures of legal reasoning [but lack] substantive engagement with the core norms, principles and methods of legal reasoning. Proponents of pseudolaw appear to have a genuine belief that their doctrines represent the ‘true’ position of the law where more ‘mainstream’ approaches have become illegitimate for some reason(s). This means that adherents can disregard existing legal norms while simultaneously retaining of a self-conception of lawfulness and righteousness.

[11] Such claims are undoubtedly damaging, and are a growing issue across the common law world. As has recently been stated, pseudolaw:

... hurts litigants, their families (whānau), and friends. Litigants employing pseudolaw waste time and money. They forego the opportunities to obtain capable legal representation. It creates opportunities for scammers and charlatans. Pseudolaw is also harmful to the proper administration of justice. Legitimate legal issues may be buried under pseudolegal gibberish and could be dismissed too hastily.

[12] In line with this approach, the Sovereign Citizen or “dual personality” pseudolegal belief is that “sovereign” individuals are not bound by the laws of the jurisdiction in which they reside unless they waive their rights and accept a contract with the government. Litigants who ascribe to this belief typically write their names in a non-standard fashion, thereby seeking to demonstrate that they do not consent to the Court’s authority. 

[13] The part of the complainant’s claim that seeks to change his birth status from “living” to “deceased” appears to me to seek that this Court engage in legitimising that theory, essentially to validate the complainant’s position that the law only applies to fictional legal personalities, rather than natural persons. It appears that the complainant believes that: 

Because every person has inalienable, natural rights, governments must assert their authority over natural or ‘flesh and blood’ persons to make them subjects. Governments do that, for example, when a birth certificate, bank account, driver’s licence, or government identity is issued. Those actions create an ‘artificial’ person – a legal person, personality, corporation, or ‘strawman’ – over whom the government and its agencies, which are parallel corporate forms, have jurisdiction. The crucial aspect is that the natural or living man or woman is freed from government subjection when they assert their status, claim it, and prove it. 

[14] This is clear in the naming of the parties in the complainant’s claim. He, as a ‘natural person’, seeks to be divorced from the “artificial” conception of him as a legal person, which he believes is embodied in his birth certificate.   The complainant seeks the same outcome for his five children. 

[15] The complainant also seeks orders including: 

(a) the granting of probate for the estate of the deceased person RICHARD JOHN BERESFORD, and also his five children, on the basis that they are all deceased persons; 

(b) primary care of his children, notwithstanding that it appears their mother, his ex-partner, presently has primary care of them; 

(c) counsel and resources to assist him to obtain primary care of his children; 

(d) an order that his ex-partner return to Wellington with his children; 

(e) an order that enables him to choose and commission a therapist or counsellor for his children; 

(f) an order that removes or discharges the matters in CRI-2021-096-3103, and CIV-2021-485-502; 

(g) if he is “deemed [to] have behaved unlawfully”, an order to bring him before a “proper” court of law; 

(h) an order to provide him with evidence relating to his ex-partner that would assist the court; 

(i) an order that his children are not to be involved in “exploitation involving slavery or death of our neighbours”; 

(j) an order that he and his children are not to be subject to “any weapons of war”; and 

(k) an order that any order made applies to his children until they are 21- years-old. 

[16] The complainant also records that he will “give up and forsake everything the commercial world has offered and given to [him]”. 

[17] The complainant provided an affidavit in support of his claim, which was not sworn or witnessed. The content of that document largely contains quotes from various sources, including but not limited to the Bible, Shakespeare, Francis Bacon, Webster’s Dictionary, Black’s Law Dictionary, the Oxford Dictionary, and Butterworths New Zealand Law Dictionary. The exhibits attached to that affidavit contained further quotes from other sources, which the complainant seems to consider support his claim, as well as the birth certificates of him and his children. The affidavit also includes what appears to be correspondence with the Department of Internal Affairs (DIA) in which DIA has declined the complainant’s request to discharge certain public records.

The Court kindly concludes that 

[18] The complainant’s claim does not articulate any valid cause of action and seeks orders that the Court is unable to grant. Chief among the barriers to the complainant’s claim is the view that his birth certificate can be changed to say that he is dead, when he is plainly very much alive. The same applies as in respect of his children.

Sovereignty

'Why a First Nations Voice Will Not Extinguish Indigenous Sovereignty' by Dylan Lino in (2023) 34 Public Law Review 95 comments 

If the opinion polls are to be believed, large majorities of both progressive voters and Aboriginal and Torres Strait Islander voters support enshrining a First Nations Voice in the Australian Constitution. But among the Voice’s progressive critics, and especially First Nations critics, one of their persistent concerns has been that constitutionally enshrining the Voice could extinguish Indigenous sovereignty. These are important and valid concerns, and Aboriginal and Torres Strait Islander people should have clear responses to them prior to the referendum. They are concerns which I seek to assuage in this comment. While the question of whether the Voice would extinguish Indigenous sovereignty has been addressed by legal scholars through brief commentary in the media, this comment is the first to give the question in-depth scholarly consideration. 

I begin by outlining the concerns expressed by some First Nations people that constitutional enshrinement of the Voice would extinguish Indigenous sovereignty. Next, I argue that the Voice cannot extinguish Indigenous sovereignty under either Australian law or international law because, according to each of those legal systems, Indigenous sovereignty does not exist in the first place. In other words, when it comes to the formal recognition of Indigenous sovereignty under Australian and international law, the problem is with the law as it currently exists, not with changes to the law produced by constitutional enshrinement of the Voice. The denial of Indigenous sovereignty is an injustice, the blame for which should be sheeted home to existing Australian and international law rather than to the effects of the Voice. I go on to show that, regardless of what Australian or international law says, Indigenous sovereignty exists as both a lived reality under Indigenous law and as a political claim against the settler state. 

Obscurity

'The Right To Be Forgotten in Data Protection Law and Two Western Cultures of Privacy by Uta Kohl in (2023) 72(3) International & Comparative Law Quarterly comments 

Data protection law has emerged as an important bulwark against online privacy intrusions, and yet its status within privacy law remains awkward. Its starting point of protecting ‘personal’ rather than ‘private’ information puts it at odds with privacy more generally. Indeed, in its very design, data protection law caters for the protection of public personal information, or personal information which has attained a degree of publicness through disclosure. Building on James Whitman's comparative privacy study, this article argues that data protection law is not the odd bedfellow of privacy law properly so called but may be understood as a manifestation of the Continental European culture of privacy. Its distinctiveness does not lie in its apparent technicality but in its robust openness to privacy in public—an idea that is alien to the Anglo-American culture of privacy. Whilst these two cultures of privacy have long ‘met’ in different jurisdictions, this article locates their enduring influence and antagonism within three contemporary privacy regimes. By taking the right to be forgotten, as an archetypal privacy-in-public right, in the testing context of spent criminal convictions, the article gauges the comparative openness to such claims, first, of the Court of Justice of the European Union as the authoritative voice on General Data Protection Regulation normativity; secondly, of the US judiciary as committed to the First and Fourth Amendment; and, thirdly, of the European Court of Human Rights on Article 8 of the European Convention on Human Rights and its fused Anglo-American and Continental European privacy jurisprudence. It is the latter jurisprudence in particular that highlights the tensions arising from trying to marry the two privacy traditions, or merge data protection and ‘privacy’ law. Yet, these tensions also offer insights and opportunities.

Apportionment, RoboDebt and Incapacity

The Commonwealth Ombudsman has released a 'statement' titled Lessons in lawfulness: Own motion investigation into Services Australia’s and the Department of Social Services’ response to the question of the lawfulness of income apportionment before 7 December 2020. 

Why did it take so very long, given the background to the RoboDebt Royal Commission report, and involve such a weak conclusion?

The Statement indicates 

 In February 2023, Services Australia and the Department of Social Services (DSS) told our Office there was an issue with how Services Australia had been apportioning income to calculate social security payment rates before 7 December 2020, when the law changed. 

‘Income apportionment’ is different to ‘income averaging’ that was at the heart of Robodebt. The Administrative Appeals Tribunal (AAT) sent some debts back to Services Australia to be recalculated. This raised concerns about whether income had been lawfully calculated. 

Services Australia advised it paused approximately 13,000 debt reviews while the agencies sought legal advice. Another 87,000 files which may become debts were also potentially affected by unlawful or incorrect income apportionment calculations. 

Given the scale, significance and potential impact, the Ombudsman decided to conduct two investigations into income apportionment: Investigation 1 – lawfulness of the agencies’ approach to income apportionment. Investigation 2 – examining the agencies’ administration of income apportionment decisions, communication with customers, and handling of complaints, internal reviews and AAT or Federal Court appeals. 

This statement relates to Investigation 1. Investigation 2 is ongoing. 

Since at least 2003, Services Australia (and its precursor the Department of Human Services), was unlawfully apportioning customers’ income across two or more Centrelink instalment periods. This in turn likely affected social security payment rates and may have lead to unfair debts against customers. 

Since becoming aware of the issue in October 2020, the agencies took steps to seek legal advice, but could have acted quicker to finalise advice. There is an unresolved and significant difference of opinion between some of the legal advices. The General Instructions that DSS developed to guide how decision-makers should recalculate the approximately 100,000 actual and potential debts need further development. 

The agencies could have acted quicker to inform us of this issue, particularly since Services Australia knew our Office had investigated some of the affected complaints.

The same might be said for the Ombudsman's office. 

 The Statement continues 

 The agencies are still determining how much the known and potential debts are affected – that is, how much payment rates went up or down because of unlawful or inaccurate income apportionment calculations. It is unknown how many other customers may have been impacted by unlawful or inaccurate debts or underpayments. 

We made four recommendations (one with two options) and one suggestion for the agencies to establish clear and lawful positions on income apportionment, and to foster cooperation with other Commonwealth agencies to resolve other outstanding issues. 

DSS and Services Australia undertook to implement all four recommendations (partially accepting one and accepting the other three) and the suggestion. We will monitor their progress. 

The Solicitor-General advised, in the first instance, the agencies should see if a clear legal position can be reached by the legal professionals who provided advice. The agencies agreed to pursue this.

Note that

Income apportionment is different to the Robodebt scheme or ‘income averaging.’ 

In the Robodebt scheme, Services Australia used an automated process to raise debts using yearly income data (income averaging). If Centrelink suspected a customer owed a debt, it sought information from that customer to disprove the existence of the debt. If the customer was unable to provide this, debts were calculated by taking a Centrelink customer’s reported income for a year, dividing it by the number of fortnights in the year, and assuming the customer earned the same amount in each fortnight. No part of social security legislation permitted Centrelink to do this. In many cases, Centrelink raised and recovered debts for which there was no probative evidence. 

The Robodebt calculation methodology frequently switched the burden of proof away from Centrelink to prove a debt existed, and onto the customer to prove a debt did not exist. 

Additionally, a central criticism of the Robodebt scheme was that many debts were calculated and issued with little or no human intervention. 

By comparison, ‘income apportionment’ relates to a method Centrelink used to calculate some payment rates, which Services Australia and DSS have accepted is unlawful because of an incorrect application by decision-makers of section 1073B of the Social Security Act 1991 prior to 7 December 2020. 

Income apportionment miscalculations may result in over- or under- payments depending on individual circumstances. The income apportionment issue we investigated does not involve averaging of yearly income and relates to the method Services Australia used to apportion employment income over a payslip period – typically a week to a month. 

Finally, based on our investigation, we were satisfied that – unlike the Robodebt scheme, which was initiated and continued without legislative changes the agencies knew were required – the incorrect and unlawful use of income apportionment arose due to the agencies genuinely holding an incorrect understanding of relevant legislative provisions.

So that's ok?