Sumption and Sovereignty

'The Judicial Individuality of Lord Sumption' by James Lee in (2017) 40(2) University of New South Wales Law Journal scrutinises

the role of the individual judge on the United Kingdom Supreme Court through an analysis of the jurisprudence of Lord Sumption JSC. The examination of the Court’s recent decisions demonstrates that his Lordship is a leading figure on the Supreme Court. It is argued that key cases and extra-curial speeches mark Lord Sumption as a proponent of judicial conservatism, and two 2016 case studies from private law are used to develop this thesis: Patel v Mirza [2016] UKSC 42 on the defense of illegality and Willers v Joyce (No 1) [2016] UKSC 43 on the tort of malicious prosecution. The article concludes that the study has broader implications for the dynamics of judging, both individually and collectively, in a court of final appeal.

'Sovereignty as a Right and as a Duty: Kant's Theory of the State' by Jacob Weinrib in Claire Finkelstein and Michael Skerker (eds), Sovereignty and the New Executive Authority (Oxford University Press, Forthcoming) comments

 Critics of Immanuel Kant’s legal and political philosophy argue that his theory of the state collapses into one of two extremes. For some, Kant is a quietist who regards positive law as the instantiation of justice and thereby deprives himself of a moral standpoint for the criticism of positive law. For others, Kant is an anarchist who denies the authority of law whenever it deviates from the demands of justice. I argue that these interpretations are the opposing products of a common error: the failure to distinguish between Kant’s justification of the right of the state to exercise public authority and his corresponding theory of a perfectly just state. Once these aspects of his theory of the state are disentangled, Kant’s transformative vision comes into view. Far from reducing the idea of a state to either an authoritative fiat or a utopian vision of justice, Kant offers a standpoint for recognizing (1) the public authority of existing states, (2) the standard of justice for assessing the moral adequacy of those states, and (3) the ongoing duty of existing states to direct the exercise of public authority to the deepest possible fulfillment of public justice.

Data Breach

'Can Data Breach Claims Survive the Economic Loss Rule?' by Catherine M Sharkey in (2017) 66(2) DePaul Law Review comments

Data security breach cases are fertile ground to explore the impact of the economic loss rule and to challenge the conceptual underpinnings of this judge-made doctrine. The extent to which the economic loss rule serves as a formidable barrier to credit card data security breach cases depends upon the underlying state law; in particular, whether a state adopts the majority or minority position on the rule, as well as how it defines various exceptions thereto. Upon closer examination, it becomes clear that the rule operates in a fundamentally distinct manner in the ‘stranger paradigm’ as compared to the ‘contracting parties paradigm’. What makes the credit card data security breach cases so vexing is that they often straddle the stranger/contracting parties paradigms. The credit card data breach cases can be reframed in a coherent way that defers to contractual allocation of risk and responsibility but nonetheless allows tort liability to be deployed when needed to ensure the internalization of third-party costs. Seen from a broader regulatory perspective – especially taking into account state statutory provisions relating to enforcement of private industry standards in the credit card arena – the economic loss rule functions as a boundary-policing doctrine between tort and regulation as alternative mechanisms to regulate private parties. Moreover, as a more robust third-party liability insurance market emerges in response to a greater threat of tort liability, insurers will engage in further risk management, exerting more potent regulatory control.

'Perspectives on Privacy, Data Security and Tort Law' by Robert L Rabin in (2017) 66 DePaul Law Review asks

In 2014, did you shop at any of these retailers who had consumer records compromised: Target (70 million records), or EBay (145 million records), or Home Depot (56 million records)? Did you have a health insurance plan through Anthem or Blue Cross prior to 2015 (80 million records)? Did you have a bank or credit card account with JP Morgan Chase prior to 2015 (83 million records)? Have you applied to work in the federal government in the past fifteen years (21.5 million records)?

Rabin responds

If you answered Yes to any of these questions, there is a good chance that your personal data has been stolen, leaked, exposed, or otherwise revealed to an unauthorized third party as part of a data breach. Since 2005, more than 900 million records have been improperly exposed or accessed as a result of 5.041 million data breaches in the United States alone.  In 2015, $15 billion was stolen from 13.1 million American consumers who were victims of identity theft, much of which could be traced back to data breaches. Corporations and governments also suffer: In 2014, the estimated cost per record lost or stolen due to data breach was $145. Given that over 85 million records were lost or stolen in 2014, corporations undoubtedly face substantial costs from data breaches. Even apart from data breaches, consumers face privacy risks from the misuse or misappropriation of their data by corporations. Data breaches can be traced to three main causes: (1) malicious or criminal attack; (2) system glitch or malfunction; or (3) human error. In 2014, approximately 47% of data breaches resulted from malicious or criminal attacks, 29% from system glitches, and 25% from human error. Breaches due to malicious attacks were more expensive to resolve ($170 per record) compared to those that stemmed from glitches ($142 per record) or human error ($137 per record).

Certain industries are more affected by data breaches than others.  In 2014, 42% of data breaches stemmed from the education sector, though these breaches only resulted in 9.7% of the total number of exposed records. In the same year, 33% of the total number of breaches came from the business sector (not including finance or healthcare), but these breaches resulted in nearly 80% of exposed records. The remaining breaches fall within the financial, health-care, or government sectors. Unsurprisingly, data breaches affect each of these industries differently. The education and healthcare sectors, for example, suffer the greatest costs-per-record-per-breach, at $300 and $363 per record respectively, where the average cost per record released for any given data breach is around $154.

Estimating the effects of a data breach on individual consumers is more difficult. As noted, an increasing number of Americans have become victims of various forms of identity theft, which often results in monetary loss and a decrease in an individual’s credit score. Beyond identity theft, data breach victims are likely to feel that they need to mitigate future harm by replacing credit cards, closing accounts, and obtaining continuous credit monitoring. At a more basic level, consumers who have been victims of data breaches feel that their privacy has been violated. Little survey work has been published on these subjects, but it seems beyond dispute that data breaches have tangible effects that are widely felt among the American population.

Several recent cases help illustrate the risks and challenges posed by data breaches. During the 2014 holiday shopping season, hackers stole at least 70 million records from Target. Hackers obtained credit card information from 40 million consumers who shopped at Target between November 2014 and December 2014 by installing malware on Target’s systems. The same hackers also stole up to 70 million additional customer records, including mailing and email addresses, phone numbers, and names. In the months following the data breach, it was revealed that Target’s security system — installed by the well-reputed computer security firm FireEye — detected the breach before any data had been stolen. For somewhat unexplained reasons, Target’s security officials declined to intervene — in fact, they had even turned off a FireEye feature that would have automatically deleted the malware from the system (again for unexplained reasons). The result of this reportedly conventional and relatively unsophisticated malware attack was the loss of 70 million records, touching nearly one in three American consumers. Target did not realize that it had been hacked until federal law enforcement officials notified them on December 12, 2014, by which time it was too late. In July 2015, the White House revealed that the records of 21.5 million people were stolen as a result of a data breach of the Office of Personnel Management (OPM). “Every person given a [federal] government background check for the last 15 years was probably affected,” according to OPM. Hackers were able to steal names, social security numbers, biometric fingerprint data, travel information, addresses, and other sensitive personnel information as part of the OPM data breach. As in the Target case, there were warning signs over a period of years indicating that OPM’s computer systems were antiquated and at serious risk of intrusion, yet no action was taken to secure the vast amount of personal data until it was too late. The hack has since been blamed on elements associated with the Chinese government.The U.S. government has provided victims with credit and identity theft monitoring for three years, but this likely provides little comfort to national security experts concerned about the potential intelligence ramifications of government employees’ sensitive personnel files in the hands of the Chinese government. The OPM case shows that the negative effects of data breaches go far beyond identity theft and monetary loss. Anthem, one of the largest health insurers in the United States, suffered a data breach in 2015 that resulted in the exposure of 80 million patients’ records, including “names, social security numbers, birthdays, addresses, emails and employment information.” There was no evidence that sensitive medical records were stolen as part of the breach, but the loss of protected personal information was substantial. Investigators suspect that Chinese state-sponsored hackers were behind the Anthem breach as well. As in the OPM case, Anthem has provided victims with credit monitoring and identity theft protection.

Consumers face threats to their personal privacy wholly separate from the types of unauthorized data breaches described above. Most notably, consumers face risks that their personal privacy will be violated by unauthorized corporate access, misuse, or misappropriation of their data. These claims of corporate misconduct can be grouped under a separate umbrella of “data misuse” issues. Data breaches relate to the unauthorized access to personal information by a third party. Data misuse or misappropriation, by contrast, involves the authorized — at least at some level—access to information by the party that holds that information for unauthorized commercial or other purposes.

Statistics on the scope of this problem are hard to come by, given the less public nature of the problem and the less tangible and immediate nature of the harm. In many cases, corporations sell or transfer consumer data to a third party without clear authorization from the consumer. One prominent example was the ChoicePoint debacle of 2005. In that case, ChoicePoint, a prominent data trader, admitted to selling personal information of 163,000 California residents—which they possessed legally—to identity thieves. At least 800 consumers had their identities stolen because of this incident. This case raised difficult data privacy dilemmas: ChoicePoint existed to sell personal information to legitimate businesses, but instead, they provided this information to a ring of identity thieves who had registered fake companies. The Federal Trade Commission’s (FTC) enforcement action resulted in a $15 million settlement, which was the largest civil penalty in the FTC’s history at that time.

In addition to improper sales to a third party, some data misuse cases focus on a corporation’s use of consumer data for its own purposes—generally to provide targeted ads or products to consumers. In 2012, it was revealed that Google had placed tracking cookies on Safari users’ computers to collect data on their web browsing preferences in order to provide targeted advertisements. Google then used this information to better target ads to users, in turn making their ad products more valuable to potential ad buyers. Presumably in response to consumer pressure, Safari, an Apple browser, created a tool to limit both the creation of cookies and the ability of cookies to track web browsing habits. In violation of a previous FTC settlement and its public pronouncements, however, Google proceeded to override the Safari tool and continued to use cookies to track Safari users. The result was extended litigation that eventually resulted in a $22.5 million FTC settlement.

A similar case was brought against Facebook for its use of members’ images in targeted advertisements known as “Sponsored Stories.” Unlike the case against Google, this was not a regulatory action brought on unfair competition grounds, but rather a class action brought on Right of Publicity grounds. The principal claim in this case, Fraley v. Facebook, Inc. — which is discussed further in the next section — was that Facebook misappropriated the plaintiffs’ images in paid advertisements without consent, and in so doing, unwillingly drafted them as unpaid and unknowing spokespersons for Facebook products. After the court denied Facebook’s motion to dismiss on newsworthiness grounds, the parties settled for $20 million.

Despite the successes just mentioned, the continuing problems of data breaches, data misuse, and the consequent failure of current laws to adequately deal with the problems is widely acknowledged. Notwithstanding the widespread recognition of the problems, there is little consensus on the appropriate legal mechanisms to prevent or punish data breaches or provide compensation to those harmed by such breaches. This Article surveys one approach to dealing with these problems: The pathways available through tort law.

But tort, of course, is not the only strategy for addressing the data breach concerns. Current legal approaches to dealing with data breaches can be divided into three main categories. First, regulatory strategies aimed at setting standards of data protection through stateBut tort, of course, is not the only strategy for addressing the data breach concerns. Current legal approaches to dealing with data breaches can be divided into three main categories. First, regulatory strategies aimed at setting standards of data protection through state and federal laws, and enforced either through the courts or federal administrative agencies. Second, information disclosure laws that require entities suffering data breaches to reveal to victims that their information has been lost or stolen, with the general hope that the market will favor companies with fewer breaches and thus provide competitive incentives for companies to protect data. And finally, ex post tort liability that allows victims to sue for damages, with the twofold goal of compensating victims and shifting the incentives of companies holding private data toward better data protection practices.

Before turning to tort (the third of these approaches), I will provide an overview in Part II of the regulatory enforcement and information disclosure strategies for addressing the problem of data breach. And following my assessment of tort remedies in Part III, I will offer some concluding thoughts, in a final Part, including a brief reprise on the potential for more proactive federal regulatory action under the mandate of the FTC.

Turing and a Fourth Law of Robotics

'Halting, Intuition, Heuristics, and Action: Alan Turing and the Theoretical Constraints on AI-Lawyering' by Jeffrey M. Lipshaw in Savannah Law Review (Forthcoming) comments

This is a reflection on the relationship of lawyering and artificial intelligence. Its goal is a better understanding of the theoretical constraints of the latter. The first part is an assessment of one particular and crucially important aspect in the theory of machine thinking – determining if the program being run will reach a conclusion. This is known as the “Halting Problem.” One question at the far reaches of AI capability is whether any physical machine presently conceivable could always, on its own, for every possible program, determine whether the program will ultimately generate an answer. The essence of the Halting Problem is that the answer to that specific question is “no.” Hence, unless a human programs the machine to decide it short of a final answer being generated, the machine won’t itself be able to decide whether it had thought enough and it was time to fish or cut bait. The second part is a philosophical reflection on what it means to decide something as opposed merely to think about it. Humans don’t have a Halting Problem. Even if they think as logically and formally as a machine, they also act. The thesis is that humans seem always in the case of every problem to be able to stop thinking and start doing, even if they don’t know whether the thinking is or will ever be complete. The third part is an assessment of what a law school of the future ought to look like, given this moderate view of the interaction between thinking machines and deciding humans.

'Toward a Fourth Law of Robotics: Preserving Attribution, Responsibility, and Explainability in an Algorithmic Society' by Frank A. Pasquale in (2017) 78 Ohio State Law Journal comments 

Jack Balkin makes several important contributions to legal theory and ethics in his lecture, “The Three Laws of Robotics in the Age of Big Data.” He proposes “laws of robotics” for an “algorithmic society” characterized by “social and economic decision making by algorithms, robots, and AI agents.” These laws both elegantly encapsulate, and add new principles to, a growing movement for accountable design and deployment of algorithms. My comment aims to 1) contextualize his proposal as a kind of “regulation of regulation,” familiar from the perspective of administrative law, 2) expand the range of methodological perspectives capable of identifying “algorithmic nuisance,” a key concept in Balkin’s lecture, and 3) propose a fourth law of robotics to ensure the viability of Balkin’s three laws.

Ordoliberalism

'Authoritarian Liberalism: From Schmitt via Ordoliberalism to the Euro' by Werner Bonefeld in (2017) 43(4-5) Critical Sociology 747 examines

the market liberal veracity of Hayek’s view that a dictatorship may be more liberal in its policies than an unlimited democratic assembly. Hayek’s warning about the potentially illiberal character of democratic government is key to the German ordoliberal thinking that emerged in the context of the crisis of the Weimar Republic. The ordoliberal thinkers were keenly aware of Schmitt’s political theology and argued with him that the state is the predominant power in the relationship between market and state, conceiving of this relationship as free economy and strong state. They maintained that the establishment of social order is the precondition of free economy; law does not apply to disorder and does not create order. The liberal state is the ‘concentrated force’ of that order. The contribution argues that ordoliberalism is best characterized as an authoritarian liberalism and assesses its contemporary veracity in relation to the European Union.

Bonefeld states

The program of liberalism ... summed up in a single word, should read ‘property’, that is, private property in the means of production ... All other demands of liberalism derive from this basic demand. (Von Mises, 1985: 137) It cannot be denied that Fascism and similar movements aiming at the establishment of dictatorships are full of the best intentions and that their intervention has, for the moment, saved European civilization. (Von Mises, 1985: 51) ...

The term ‘authoritarian liberalism’ was coined by the German Jurist Hermann Heller in a 1933 publication about the rightist Von Papen government of 1932. His account explored Carl Schmitt’s ‘Strong State and Sound Economy’ (1998) as the theoretical manifestation of the authoritarian turn of liberal thought. Heller characterized the turn towards authoritarianism as a demotion of democratic government ‘in favour of the dictatorial authority of the state’ (Heller, 2015: 296).  Schmitt’s stance was by and large shared by the founding thinkers of German ordoliberalism. They too identified the democratic character of the Weimar Republic as the root cause of the crisis of Weimar, arguing that mass democracy is tyrannical in its consequences.

In the context of Weimar, the authoritarian reassertion of the state was thus not only meant to overcome the ‘lamentable weakness’ (Friedrich, 1955: 512) of the liberal state. It was also meant to reorder the socio-economic relations to achieve free economy. Authoritarian liberalism conceives of the state as ‘market police’ (Rüstow, 1942). According to Heller (2015) it posits the state in its pure liberal form as the organized force and concentrated power of the system of liberty, enforcing market freedom and sustaining depoliticized socio-economic relations. Depoliticization is an eminently political practice. To Schmitt and the ordoliberals ‘the Leviathan was and had to be there first’ (Streek, 2015: 363); and rightly so: by its own logic, and as Adam Smith had already argued, free economy descends into ‘bloodshed and disorder’ (Smith, 1976: 340) unless the state civilizes its conduct by means of law, police, and fabrication of the moral sentiments of the system of private property. The freedom to compete presupposes ‘market police with strong state authority’ (Rüstow, 1942: 289) to sustain it. The strength of the state as market police depends on its independence from society. Its capacity to neutralize democracy and civilize the conduct of a free labour economy depends on the state as the independent and concentrated power of society.

In the late 1920s/early 1930s, the critique of mass democracy was part of the rightist reaction to the Weimar Republic. In the 1950s, it became part of the ‘anti-totalitarian’ idea that mass democ- racy leads to unfreedom, and that for the sake of an open society democracy needed to be fettered. As Willgerodt and Peacock (1989: 6) put it, ‘those who rely on the rules for liberal decisions, irrespective of the results of these decisions, must answer the question: how can it be guaranteed that these decisions will not destroy the liberal rules?’. In this perspective, freedom needs to be protected against the enemies of freedom even if they move formally within the legal bounds of a free society and secure parliamentary majorities by free elections. That is, ‘trust in freedom must be accompanied by a distrust of forces that abolish freedom or interfere with it’ (Lenel, 1989: 21). Surveillance is the condition of trust. Recognition of the enemies of freedom depends on the certainty of indivisible socio-economic values and political norms that recognize free economy as a ‘universal form of existence’ (Eucken, 2004: 321).

There can be no doubt. Relativism has no values to defend. It succumbs, they say, to ‘trouble makers’ (Röpke, 2009: 50). In this remarkable manner, the rightist denunciation of Weimar democracy established itself as a militant defence of post-war democracy. ‘Militant democracy’ rejects liberality as an open invitation to the enemy within. Instead it demands the curtailment of democracy ostensibly in order to protect it against attack and communist overthrow.

In the 1970s the authoritarian liberal critique of democracy came to the fore again in the context of the then economic crisis. The debate focused by and large on Britain. It argued that the crisis had been brought about by an excess of democracy that had let to an overloaded interventionist state, which had stifled the economy with crisis-ridden consequences. Its crisis-diagnosis entailed the prescription for resolving the crisis. The economy had to be set free by rolling back the state and by curtailing the democratic excess. Its stance formed the theoretical foundation of the incoming Thatcher government in 1979.

However, in Europe, the most sustained effort in neutralizing mass democracy occurred in the form of European monetary union, which created the world’s only state-less currency. The government of the Euro is to all intents and purposes entirely removed from the territorially regimented democratic sovereigns. It sets in place a market liberal framework for the conduct of policy in the federated and democratically constituted member states. The paper lays out the argument that capitalist political economy entails the liberal state as market police. This conception of the state excludes the idea of mass democracy as the constitutive basis of the liberal rule of law. The next section introduces Schmitt’s authoritarian stance and examines the ordoliberal critique of mass democracy. The following section presents the neoliberal account of a crisis of democracy in the 1970s. The conclusion summarizes the argument with reference to the elements of authoritarian liberalism in the governance of the Euro. I hold that the European monetary union amounts to a system of imposed liberty, which strengthens the liberal character of the member states. It also tends to nationalize the critique of ‘liberty’ in the form of powerful neo-fascist political movements and parties, including populist nationalist rejection fed by impotent rage and pitiful delusions about ‘land and sea’, as in the case of Brexit.

Mandatory Reporting and Health Complaints

The COAG Health Ministers meeting of 4 August resulted in a communique with the following items

Strengthened penalties and prohibition orders under the Health Practitioner Regulation National Law

Health Ministers agreed to proceed with amendments to the Health Practitioner Regulation National Law (the National Law) to strengthen penalties for offences committed by people who hold themselves out to be a registered health practitioner, including those who use reserved professional titles or carry out restricted practices when not registered. Ministers also agreed to proceed with an amendment to introduce a custodial sentence with a maximum term of up to three years for these offences. These important reforms will be fast tracked to strengthen public protection under the National Law. Preparation will now commence on a draft amendment bill to be brought forward to Ministers for approval, with a view to this being introduced to the Queensland Parliament in 2018. The Western Australian Parliament is also expected to consider legislative changes to the Western Australian National Law.

Amendment to mandatory reporting provisions for treating health practitioner

Health Ministers agree that protecting the public from harm is of paramount importance as is supporting practitioners to seek health and in particular mental health treatment as soon as possible.

Health Ministers agreed that doctors should be able to seek treatment for health issues with confidentiality whilst also preserving the requirement for patient safety.

A nationally consistent approach to mandatory reporting provisions will provide confidence to health practitioners that they can feel able to seek treatment for their own health conditions anywhere in Australia.

Agree for AHMAC to recommend a nationally consistent approach to mandatory reporting, following discussion paper and consultation with consumer and practitioner groups, with a proposal to be considered by COAG Health Council at their November 2017 meeting, to allow the amendment to be progressed as part of Tranche 1A package of amendments and related guidelines.

National human biomonitoring program

Health Ministers noted that human biomonitoring data can play a key role in identifying chemicals which potentially cause adverse health effects and action that may need to be taken to protect public health. Health Ministers agreed that a National Human Biomonitoring Program could be beneficial in assisting with the understanding of chemical exposures in the Australian population.

Accordingly, Ministers agreed that the Australian Health Ministers’ Advisory Council will explore this matter in more detail by undertaking a feasibility assessment of a National Human Biomonitoring Program.

The Senate Standing Committees on Community Affairs report earlier this year on Complaints mechanism administered under the Health Practitioner Regulation National Law had the following terms of reference: 

•  the implementation of the current complaints system under the National Law, including the role of the Australian Health Practitioner Regulation Agency (AHPRA) and the National Boards; 
• whether the existing regulatory framework, established by the National Law, contains adequate provision for addressing medical complaints; 
• the roles of AHPRA, the National Boards and professional organisations, such as the various Colleges, in addressing concerns within the medical profession with the complaints process; 
• the adequacy of the relationships between those bodies responsible for handling complaints; 
• whether amendments to the National Law, in relation to the complaints handling process, are required; and 
• other improvements that could assist in a fairer, quicker and more effective medical complaints process. 

The Committee's recommendations are - 

R 1   that AHPRA review and amend the way it engages with notifiers throughout the process to ensure that all notifiers are aware of their rights and responsibilities and are informed about the progress and status of the notification. 

R 2  that AHPRA and the national boards develop and publish a framework for identifying and dealing with vexatious complaints. 

R 3  that the COAG Health Council consider whether recourse and compensation processes should be made available to health practitioners subjected to vexatious claims. 

R 4  that AHPRA and the national boards institute mechanisms to ensure appropriate clinical peer advice is obtained at the earliest possible opportunity in the management of a notification. 

R 5 that AHPRA immediately strengthen its conflicts of interest policy for members of boards and that the Chair of the board should make active inquiries of the other decision makers about actual or potential conflicts of interest prior to consideration of a notification. 

R 6 that AHPRA develop a transparent independent method of determining when external advice is obtained and who provides that advice. 

R 7  that AHPRA consider providing greater remuneration to practitioners called upon to provide clinical peer advice. 

R 8 that AHPRA formally induct and educate board members on the way the regulatory powers of the board can be used to achieve results that both manages risk to the public and educates practitioners. 

R 9 that AHPRA conduct additional training with staff to ensure an appropriately broad understanding of the policies it administers and provide staff with ongoing professional development related to the undertaking of investigations. 

R 10  that the COAG Health Council consider amending the National Law to reflect the Psychology Board of Australia's policy on single expert witness psychologists acting in family law proceedings. 

R 11 that the COAG Health Council consider making a caution an appellable decision. 

R 12 that the COAG Health Council consider whether notifiers should be permitted to appeal board decisions to the relevant tribunal. 

R 13 that AHPRA take all necessary steps to improve the timeliness of the complaints process and calls on the Australian Government to consider avenues for ensuring AHPRA has the necessary additional resources to ensure this occurs. 

R 14  that AHPRA institute a practice of providing monthly updates to complainants and medical professionals whom are the subject of complaints.

Driverless Vehicles

The National Transport Commission (NTC) last year released a paper on Regulatory reforms for automated road vehicles.

The Commission has recently released a discussion paper on Regulatory options to assure automated vehicle safety in Australia, outlining four regulatory options to govern the safety of driverless cars and other autonomous vehicles in Australia:

• Continuing the current approach
• Self-certification
• Pre-market approval
• Accreditation.

The paper states

Automated vehicles that do not require human driver input into the driving task for at least part of the journey are expected to arrive on our roads from around 2020. Currently there is no explicit regulation covering these automated driving functions. Manufacturers are aiming to ensure automated driving functionality improves road safety, but this technology may also create safety risks for road users. The purpose of this paper is to seek feedback on:

• whether there is a need for explicit regulation of automated driving functions, above existing transport and consumer law 

• if there is a need for regulation, what form this should take.

We are seeking feedback from governments, road safety experts, automated vehicle manufacturers, technology providers, insurers and other stakeholders on these questions. This paper examines:

• how safety of automated vehicle functions should be assessed 

• the options for a safety assurance system 

• the criteria that should be used to decide among those options

•  institutional arrangements, road access and compliance.

Based on the feedback we receive, we will make recommendations to transport ministers in November 2017 on the preferred approach and the next steps to implement any required changes to legislation.

Australian governments have started work to remove legislative barriers to increasingly automated road vehicles. These barriers relate primarily to road traffic laws that implicitly require a human driver. Without further action, once these barriers have been removed, governments would have no regulatory mechanism to proactively ensure automated driving technologies are safe.

Automated driving technologies are progressively undertaking more of the driving task, and it is likely this technology will improve road safety, mobility, productivity and environmental outcomes. However, the technology is highly innovative and diverse and requires further testing and evaluation. From a regulatory perspective, there are four key issues:

• Should governments have a role assuring the safety of automated vehicles? 

• What are our measures of safety, and what is the level of safety required? 

• How does a safety assurance system balance safety outcomes with innovation, certainty and regulatory efficiency?

• Where does a safety assurance system fit within the existing regulatory framework for road transport, and how does it interact with existing laws?

In November 2016 the Transport and Infrastructure Council directed the National Transport Commission (NTC) to develop a national performance-based assurance regime designed to ensure the safe operation of automated vehicles. This will form a key component of an end-to-end regulatory framework to support the safe commercial operation of automated vehicles. Based on the feedback to this discussion paper, the NTC will recommend a preferred approach to ministers in November 2017, along with the next steps on regulatory reforms to support this approach.

In the absence of agreed Australian or international standards specific to automated vehicle technologies, governments need to consider the uncertain safety outcomes associated with different applications of automated driving, and whether the safety risk justifies additional government oversight and regulatory intervention. In Australia this type of oversight would be in addition to existing general consumer and product liability laws as well as extensive regulation covering vehicle standards and vehicle operation.

As the performance of the vehicle technology becomes increasingly safety-critical, new regulatory approaches may be needed to ensure initial and ongoing safety. Such approaches will need to cover all potential technology providers, from traditional automotive manufacturers to companies and individuals developing after-market devices to modify existing vehicles.

There is a risk that, without a national and coordinated response to automated vehicle reform, Australia’s complex regulatory framework will result in inconsistent regulation or over-regulation of automated vehicles across states and territories.

Regulatory options for safety assurance of automated vehicle functions

The NTC has developed four regulatory options for consultation for the safety assurance of automated vehicle functions. These are based on our assessment of the current regulatory framework and a review of safety literature and international developments. The four options are:

1. Continue current approach – no additional regulatory oversight, with an emphasis on existing safeguards in Australian Consumer Law and road transport laws. 

2. Self-certification – manufacturers make a statement of compliance against high-level safety criteria developed by government. This could be supported by a primary safety duty to provide safe automated vehicles. 

3. Pre-market approval – automated driving systems are certified by a government agency as meeting minimum prescribed technical standards prior to market entry. 

4. Accreditation – accreditation agency accredits an automated driving system entity. The accredited party demonstrates it has identified and managed safety risks to a legal standard of care.

We are seeking feedback on these regulatory options, recognising that the regulatory solution may draw upon elements across these options. Stakeholders are also welcome to propose new regulatory options. ... 

In many ways, the regulatory options reflect the risk appetite of the community and how the optimum role of government is perceived and understood by the community. In broad terms, the greater the risk appetite, the less we need explicit regulation, or a proactive role for governments to ensure automated vehicle safety.

In line with developments in other countries, the NTC proposes that the safety risks are sufficiently high or unknown to warrant some level of regulatory oversight and government involvement in the safety assurance system. ...

We have proposed eight assessment criteria against which the regulatory options for the safety assurance system have been evaluated. ... 

Proposed assessment criteria for the design of the safety assurance system

1. Safety 

• The model should support automated vehicle safety, including the ongoing safety over the full lifespan of the vehicle. 

• The model should provide certainty about who is responsible for testing, validating and managing safety risks. 

2. Innovation, flexibility and responsiveness 

• The model should be technology-neutral and allow innovative solutions 

• The model should allow government to respond and adapt to the changing market and evolving technology.  

3. Accountability and probity 

• The model should ensure the decision-making process is transparent, accountable and, where appropriate, appealable. 

• There should always be an entity (whether an individual or a corporation) that is legally accountable for the automated driving system.

4. Regulatory efficiency 

• The assurance process should be as efficient as possible and result in the least cost for industry and government, proportionate to the risk. 

• The process of assurance should minimise structural, organisational and regulatory change necessary to implement the model. 

5. International and domestic consistency 

• The model should support a single national approach, or state-based approaches that are nationally consistent. 

• The model should be adaptable if and when there is international consistency. International approval processes and standards should be recognisable. 

6. Safe operational design domain 

• The model should be able to take into consideration the operational design domain of an automated driving system. 

7. Other policy objectives 

• The model should be able to support non-safety policy objectives including cybersecurity, traffic management, environmental protection and the provision of data for enforcement or insurance purposes. 

8. Timeliness  

• The model should be able to be implemented and operational when the technology is ready.

Our initial assessment of the regulatory options suggests there are significant disadvantages associated with not developing a safety assurance system and continuing with the current approach (see Table 2). This is primarily because the ADRs do not have regard to automated driving technologies. Furthermore, existing safeguards, including vehicle recall powers, are focused on the technical integrity of the vehicle and do not consider environmental or human performance safety factors. This may lead to road safety risks, particularly in relation to vehicle modifications and after-market fitment.

Self-certification is a light-touch approach that, like the ‘continue current approach’ option, relies on existing safeguards but could introduce voluntary or mandatory compliance with automated vehicle safety principles and criteria. Showing compliance with these criteria would allow automated driving system entities to demonstrate to government that their vehicles are safe and therefore suitable to be registered under state and territory laws. Self-certification could be supported by a legislated primary safety duty for manufacturers, suppliers and automated driving system entities to provide safe automated vehicles.

Pre-market approval possibly provides the highest certainty for government and consumers that automated vehicles will be safe. However, this option is also regulation- and resource intensive and could stifle safety-related innovation if testing standards and procedures do not keep pace with technology changes.

Accreditation provides a comprehensive, risk-based and proven framework within which safety can be regulated. It focuses on outcomes, risk management and continuing improvements to safety. The accreditation model has demonstrated safety benefits in other high-risk industries including mining, rail and aviation. However, accreditation would involve a major reform of road safety, includes substantial set up costs and is not an approach that other countries are known to be exploring. ...

The paper comments

Implementation issues

A number of key issues need to be considered in implementing an approach to the safety assurance of automated vehicle functions, in particular:

• how to evaluate and validate safety

•  institutional arrangements to support the approach 

• how to manage access to the road network 

• how to ensure compliance with the requirements of the approach selected.

How to evaluate and validate safety

Evaluation and validation of automated vehicle safety is a foundation issue for the development of the safety assurance system. The proportionate and appropriate role of a government agency to test the safety claims made by a manufacturer or technology provider will largely depend on the regulatory model adopted in Australia.

We are seeking feedback on whether safety should be defined and measured according to the rate of technical failure and incidents that result in harm to people, or be based on an agreed metric of safety such as crash rates.

The NTC is proposing that the onus be placed on the automated driving system entity to demonstrate the methods they have adopted to identify and manage safety risks.

Institutional arrangements to support the approach

If there is a role for government in safety assurance for automated vehicle functions? Which government body will have that role? Responsibility for motor vehicle safety regulation is currently shared between the Commonwealth and the states and territories. The current mix of regulatory responsibilities adds complexity to the development of a safety assurance system and the potential institutional arrangements to oversee the safety assurance system. We are seeking feedback on institutional arrangements, including the types of government entities that could support a safety assurance system.

Institutional arrangements are heavily dependent on the safety assurance option chosen, therefore the NTC is proposing that institutional models are further developed after a regulatory option has been agreed.

How to manage access to the road network

For the foreseeable future, automated vehicle functionality will be limited to parts of the road network (for example, only sealed roads). This raises the question of the role of registration authorities and road managers (including local governments) in managing access to the road as part of the safety assurance system. We are seeking feedback on the role of road managers and whether registration authorities and road managers should authorise automated vehicle access to their road network in addition to safety assurance processes.

The NTC is proposing that a national approach should be adopted that incorporates automated vehicle registration and network access into the safety assurance process. However, access issues should be further explored once a regulatory model has been agreed.

How to ensure compliance

How do governments ensure compliance with any safety assurance system? We are seeking feedback on how to ensure compliance – including what regulation (if any) is needed to ensure automated driving system entities and other parties comply with safety obligations.

We suggest that compliance could be ensured through a primary safety duty for parties to provide safe automated vehicles with associated penalties and/or specific sanctions and penalties for the automated driving system entity.

The best way to ensure compliance will depend significantly on the regulatory model agreed. Sanctions and penalties in road traffic laws could also cover automated driving system entities through the NTC reforms to driver legislation.

Consultation questions

1. Should government have a role in assessing the safety of automated vehicles or can industry and the existing regulatory framework manage this? What do you think the role of government should be in the safety assurance of automated vehicles? 

2. Should governments be aiming for a safety outcome that is as safe as, or significantly safer than, conventional vehicles and drivers? If so, what metrics or approach should be used? 

3. Should the onus be placed on the automated driving system entity to demonstrate the methods they have adopted to identify and mitigate safety risks? 

4. Are the proposed assessment criteria sufficient to decide on the best safety assurance option? If not, what other assessment criteria should be used for the design of the safety assurance system? 

5. Should governments adopt a transitional approach to the development of a safety assurance system? If so, how would this work? 

6. Is continuing the current approach to regulating vehicle safety the best option for the safety assurance of automated vehicle functions? If so, why? 

7. Is self-certification the best approach to regulating automated vehicle safety? If so, should this approach be voluntary or mandatory? Should self-certification be supported by a primary safety duty to ensure automated vehicle safety? 

8. Is pre-market approval the best approach to regulating automated vehicle safety? If so, what regulatory option would be the most effective to support pre-market approval? 

9. Is accreditation the best approach to regulating automated vehicle safety? If so, why? 

10. Based on the option for safety assurance of automated vehicle functions, what institutional arrangements should support this option? Why? 

11. How should governments manage access to the road network by automated vehicles? Do you agree with a national approach that does not require additional approval by a registration authority or road manager? 

12. How should governments ensure compliance with the safety assurance system?

Equality and Divine Authority

The Victorian Human Rights and Equal Opportunity Commission has released its Equitable Briefing Initiative: Aggregate data report - Jul 2017.

The Commission states

 In 2014 the Commercial Bar Association of Victoria, the judiciary and the Victorian Equal Opportunity and Human Rights Commission began work together to understand and address equity issues for female barristers at the commercial bar. Of specific concern was the notion that women practising at the Victorian Bar in commercial law were briefed less frequently than their male counterparts and received briefs of less value.

The Equitable Briefing Initiative was developed to analyse the briefing practices of law firms and government entities who volunteered to be a part of the initiative by submitting data over a three-year period from 2016–19 on their briefing practices, and to focus on reducing any gender bias apparent in briefing practices.

This report analyses results from the first stage of the Equitable Briefing Initiative. It aims to identify any bias in briefing practices and considers whether the number of briefs to female barristers are proportionate at each level of seniority, and whether the average value of briefs to men and women are equivalent at each level of seniority.

The Commission comments

Overall, the data from this first reporting period allow us to make some interesting conclusions while leaving a number of questions open. There is most evidence of bias in relation to briefing of SC/QCs. Women at that level of seniority tended to receive fewer briefs than men over the reporting period, and there is some suggestion (though not enough evidence to come to any firm conclusion yet) that those briefs to women tended to be lower in value than the briefs that men received. Additional data will help us to determine the extent of any bias experienced by women at the SC/QC level.

Results were more encouraging at the non-SC/QC levels of seniority. Based on CommBar membership numbers, there was evidence that men received more briefs than women, but the discrepancy was not particularly large (the difference between the proportion of women CommBar members and the proportion of briefs they received was only 2.4 per cent); in addition, there was no evidence that the value of briefs to women was lower at either the Junior or Senior level. As previously mentioned, we will be able to make firmer, more precise conclusions as more data are received over subsequent reporting periods.

In Tasmania the Meander Valley Council  has disagreed with the Beerepoot family's claim that land is owned - if that's the word - by God and accordingly the family is not liable to pay rates. A block of the Beerepoot land has accordingly been sold on behalf of the Council for around $120,000 in order to pay $3,500 rates accumulated over seven years. The Council expects to transfer most of the proceeds (less legal costs and the recovered rates) to  the family.

The Beerepoot's reportedly advised the Council that  the land belonged to the "Heavenly Father", with rates being a matter "between council and God". Payment would be "asking us to bow down to a false God which is something we cannot do".

The family had unpaid rates of $9,332 regarding three properties, with an "anonymous source" paying  the rates for two properties in Chudleigh.