Regulatory Theory

'Relational Regulators: Private Law Thinking for Administrative Agencies' (2018) by Hanoch Dagan and Roy Kreitner comments 

Theories of regulation conceptualize the task of the agencies of the modern state in terms of the public interest. Regulatory agencies, in this conventional view, should ensure the efficient allocation of scarce resources and secure distributive justice and democratic citizenship. Many agencies nicely fit this aggregative mold, but not all. A significant subset of the regulatory practice deals with a different task: delineating the terms of our interpersonal transactions, forming the infrastructure for our dealings with other people, both private individuals and firms. This Essay focuses on these relational regulators, which regulatory theory marginalizes or neglects.

Our mission is threefold. Descriptively, we show that many agencies are indeed best understood as devices that supplement or even supplant the role of courts in addressing horizontal, rather than vertical or aggregative, concerns. In other words, many of the practices and operational codes and sensibilities of these agencies are best conceptualized as responses to the horizontal challenges of the creation of the infrastructure for just interpersonal relations in core social settings, such as the workplace or the market.

Normatively, we argue that the seeming consensus among theorists of both regulation and private law, in which these tasks belong to judges, rather than administrators, is misguided. In many contexts – increasingly prevalent in contemporary society – agencies, rather than (or in addition to) courts, may well be the (or at least an additional) appropriate institution for the articulation, development, and vindication of our interpersonal rights.

Finally, jurisprudentially, we offer some initial steps towards a theory of relational regulatory agencies. We demonstrate the regulatory implications – in both substance and form – of undertaking the role of establishing and maintaining the infrastructure for just interpersonal interaction and advance a preliminary account of the regulatory toolkit appropriate to this relational task.

'The Morality of Administrative Law' by Cass R. Sunstein and Adrian Vermeule in (2018) Harvard Law Review comments

As it has been developed over a period of many decades, administrative law has acquired its own morality, closely related to what Lon Fuller described as the internal morality of law. Reflected in a wide array of seemingly disparate doctrines, but not yet recognized as such, the morality of administrative law includes a set of identifiable principles, often said to reflect the central ingredients of the rule of law. An understanding of the morality of administrative law puts contemporary criticisms of the administrative state in their most plausible light. At the same time, the resulting doctrines do not deserve an unambiguous celebration, because many of them have an ambiguous legal source; because from the welfarist point of view, it is not clear if they are always good ideas; and because it is not clear that judges should enforce them.

'Norming in Administrative Law' by Jonathan S. Masur and Eric A. Posner in (2019) 68 Duke Law Journal (Forthcoming) comments

 How do regulatory agencies decide how strictly to regulate an industry? They sometimes use cost-benefit analysis or claim to, but more often the standards they invoke are so vague as to be meaningless. This raises the question whether the agencies use an implicit standard or instead regulate in an ad hoc fashion. We argue that agencies frequently use an approach that we call “norming.” They survey the practices of firms in a regulated industry and choose a standard somewhere within the distribution of existing practices, often no higher than the median. Such a standard burdens only the firms whose practices lag the industry. We then evaluate this approach. While a case can be made that norming is appropriate when a regulatory agency operates in an environment of extreme uncertainty, we argue that on balance norming is an unwise form of regulation. Its major attraction for agencies is that it minimizes political opposition to regulation. Norming does not serve the public interest as well as a more robust standard like cost-benefit analysis.

RobotDebt

'The New Digital Future for Welfare: Debts Without Legal Proofs or Moral Authority' by Terry Carney in (2018) 41(30 UNSW Law Journal 783 comments 

This article reviews Centrelink’s online compliance initiative (‘OCI’) to determine whether the Senate Community Affairs References Committee was right to recommend that Centrelink resume responsibility for obtaining all information necessary for calculating working age payment debts based on verifiable actual fortnightly earnings rather than on the basis of assumed averages, or whether responsibility has always remained with Centrelink when the person is unable to easily provide records. It argues that legal responsibility ultimately has always rested with Centrelink in such cases and outlines distributional justice and best practice reasons why the OCI system should be brought into compliance with the law.

Carney argues

A new digital future for administration and administrative review is much discussed, with Britain touted as a leader. Automation of decision-making through application of machine learning algorithms is one way efficiency and accuracy is pursued, including Australia’s online compliance intervention (‘OCI’) debt recovery system – colloquially known as ‘robo-debt’ – which is one part of the government’s Better Management of the Welfare System initiative projected to recover $2.1 billion of social security ‘overpayments’ over four years.

It is trite maths that statistical averages (whether means or medians) tell nothing about the variability or otherwise of the underlying numbers from which averages are calculated. Only if those underlying numbers do not vary at all is it possible to extrapolate from the average a figure for any one of the component periods to which the average relates. Otherwise the true underlying pattern may be as diverse as the experience of Australia’s highly variable drought/flood pattern in the face of knowledge of ‘average’ yearly rainfall figures. Yet precisely such a mathematical fault lies at the heart of the introduction from July 2016 of the OCI machine-learning method for raising and recovering social security overpayment debts. This extrapolates Australian Taxation Office (‘ATO’) data matching information about the total amount and period over which employment income was earned, and applies that average to each and every separate fortnightly rate calculation period for working-age payments.

ATO data-matching previously was very properly used to trigger further enquiries about a portion of the approximately 300 000 discrepancies (and possible debts) identified annually by the Department of Human Services (better known to the public as Centrelink). Based on risk management profiling, Centrelink formerly selected around seven per cent of discrepancies for manual review and enquiry, to obtain firm information about actual earnings in each payment fortnight (whether provided by the person or from invoking its compulsory powers to require employers to provide pay slip records, or banks to disclose statements). From July 2016 the OCI scheme targets and raises debts in every case where the person cannot disprove the possible overpayment (or its quantum), such as by producing or obtaining copies of pay slips. The Ombudsman identified the dramatic scale of the change, writing that ‘DHS estimates it will undertake approximately 783 000 interventions in 2016–17 compared to approximately 20 000 compliance interventions per year under the previous manual process’. While the full pipeline effect of the new system had yet to be fully felt due to the lag in review processing, debt cases lodged with the Administrative Appeals Tribunal (‘AAT’) increased by 28.5 per cent in the first full year of the OCI scheme in 2016–17, compared to the previous year (rising from 3387 to 4354).

Why is this of legal, policy and moral interest? It is of interest to the law because, as argued below, the so-called ‘practical onus’ to establish a debt and its size continues to remain with Centrelink; the failure of a person to ‘disprove’ the possibility of a debt is not a legal foundation for a debt.

This is not new. It was recognised in Centrelink’s preOCI guideline which, while (somewhat dubiously) accepting averaging as a ‘last resort’, correctly added ‘[t]he raising and recovery of debts must satisfy legislative requirements. Evidence is required to support the claim that a legally recoverable debt exists’.  And it is also of legal interest because the nature of the issue (the monetary, moral and practical implications of contending that a debt is owed) raises the bar for Centrelink in terms of its discharge of that practical onus. This is what I loosely term the ‘rule of law’ challenge (Part II below).

It is of wider policy interest because, in practice, when confronted with suggestions of having an overpayment, often from up to seven years ago, the least literate, least powerful, and most vulnerable alleged debtors will simply throw up their hands, assume Centrelink knows that there really is a debt, and seek to pay it off as quickly as possible. Alleged debtors do so even though the Ombudsman’s report demonstrated that most debts calculated this way were greatly inflated, and that some were false (zero debts), and they continue doing so because the otherwise worthy recommendations of the Ombudsman and the Parliamentary Community Affairs Committee fail to correct the fundamental legal error. It is of moral or ethical interest because Centrelink did not advise recipients of the need to keep pay records for longer than six months, and because it is difficult to see how the current system meets requirements of model-decision-making at primary level or ‘model litigant’ obligations for internal and AAT review. Finally, it is of interest because it is a test-bed for assessing the fitness for purpose of the administrative review system (especially its normative impact on good primary decision-making) and as a window into the digital future (Part III below).

The article briefly concludes in Part IV by arguing that the OCI system urgently be rendered compliant with the law, lest it undermine public confidence in the positive contribution machine learning can bring to better administration.

Carney concludes

Machine learning algorithms and other digital applications to improve the accuracy and efficiency of decision-making are unquestionably the way of the future, as the rapid expansion of such systems across a wide range of administrative settings in the USA testifies. Apart from the rule of law challenge in designing such systems, there is the challenge of rendering it consistent with principles of sound administration, such as the 27 principles laid down by the Administrative Review Council in its 2004 report, or Jerry Mashaw’s accuracy, efficiency and ‘dignity’ objectives. As demonstrated, machine learning initiatives contravene dignity and fairness principles if citizens are disadvantaged by presumed digital literacy (access to or ability to use computers), lack of understanding of the true nature of the issue (as in not knowing that fortnightly income outcomes are very different to application of an average), are overcome by (possibly misplaced) feelings of fear and guilt about a suggested moral wrong such as incurring a debt, or otherwise ‘cause a disproportionate impact on members of certain classes or groups’.

Addressing such concerns calls for creativity and ongoing debate on alternatives. Just as modes of achieving accountability alter when, say, delivery of welfare is shifted from government to private sector auspices (as with job placement services in Australia) or to charitable agencies (as in some instances in the United States of America), such changes are not intrinsically better or worse, but call for careful weighing up of attributes of these radically different ‘regimes’. Arguably so too when moving from more traditional human agency decision-making to greater (or complete) reliance on machine learning systems. For example reasonable minds still differ over whether legal paradigms of greater ‘transparency’ of system design and operations is the answer, with Desai and Kroll persuasively arguing instead for a ‘technological’ remedy of incorporating into regulatory and accountability frameworks the ‘trust but verify’ approach adopted by the sector when building and testing systems. By contrast, Coglianese and Lehr assess machine learning against traditional legal standards of non-delegation, due process (procedural fairness), non-discrimination and transparency;  worthy standards of course, but ones which the history of robo-debt demonstrates proved to be inadequate to redress its systemic deficiencies, at least within the current system of review and appeal. Once Australia’s OCI scheme is reformed to be compatible with the rule of law and more compatible with best practice principles of administration, attention should turn to these wider considerations for other machine learning digital initiatives.

However, there are also potential lessons for refinement of AAT practice. Lorne Sossin argues that selection of the best model of a tribunal, and its finer aspects of design, ideally should involve:

a holistic enterprise, involving the expertise of policy-makers and lawyers, administrators and IT professionals, organizational and behavioural specialists together with communication experts. All aspects of the tribunal experience should be considered together – that is, the statutory authority of the tribunal together with its physical and virtual presence, the budget and staffing of the tribunal together with its approach to proportionality or streaming of caseloads, the rule-making together with the strategies for accessibility, inclusion and accommodations.

For instance, the conversational, symbolic and other atmospherics of hearings can be critical to real engagement and accessibility. 

Refining administrative review to fit contemporary circumstances is not new, as Lorne Sossin observes. For its part, the SSCSD of the AAT, as successor to the Social Security Appeals Tribunal (‘SSAT’), experienced significant changes over the last decade as it balanced competing pressures of justice and efficiency. For instance the legislative requirement for quick decision-making is said to stifle the degree to which the AAT itself now actively seeks additional information from agencies or others. The raw numbers demonstrate the dramatic pressures on the SSCSD, with a 44 per cent increase in appeal numbers in the last five years coinciding with a roughly 33 per cent decrease in membership; and perhaps not entirely coincidentally, a seven percentage point decline in set aside decisions (from 27 per cent to 20 per cent) over the decade 2007–17.  So procedure matters.

The main implication I suggest is that the SSCSD should focus on ways in which its decision-making can boost the normative or educative impact of review in improving primary decision-making. Given that the illegality of OCI debt raising suggested here continued unchecked for 18 months as at the date of writing, despite AAT1 decisions invalidating it, and that those legal doubts remained unbroached publicly, it is clear that neither the normative nor the educative power of current review is optimal. Selective publication of AAT1 decisions, especially where, for whatever reason, the agency elects not to seek review AAT2 of an adverse AAT1 decision,  is one remedy. Another is being alert to unintended consequences – such as any premature but notionally ‘voluntary’ withdrawal of applications by under-informed applicants during any pre-hearing screening; or the absence of feedback to the agency when delivering oral decisions; or any undue exercise of powers to endorse (unpublished) settlement of such matters at AAT2 – all of which weaken educative feedback loops to decision-makers.

Given that many people in receipt of working age payments are vulnerable and thus may not participate in their hearing,  care is also needed in exercising dismissal and reinstatement powers. For instance it is wrong to apply the same test when dealing with a reinstatement application as when dismissing for failure to attend a scheduled hearing: the latter is mainly a question of whether the person was adequately notified and any excuse they may have for non-attendance, while reinstatement crucially also requires application of a presumption of reinstatement and some consideration of the merits of the matter. Channelling Juliet Lucy, there may also be other creative (and highly costeffective) possibilities. Examples include greater use of pre-hearing powers to require Centrelink provision of additional documents or information before AAT1 hearings, or clarification of analysis or reasoning, effectively ‘front-ending’ considerations otherwise only incorporated as part of AAT directions when deciding the application.

Ultimately, however, the aim must be to ensure that primary decision-making is of the highest quality, integrity and legality, minimising the need for what Juliet Lucy terms the AAT’s function of ‘facilitat[ing] “administrative second thoughts”’

Drug Law Reform

The Victorian Parliament's Law Reform, Road and Community Safety Committee report on Drug law reform, concerned with

the effectiveness of drug control laws and procedures in minimising drug‑related harms, as well as drug law reform in other Australian and overseas jurisdictions 

comments that

the use of illicit substances and the misuse of pharmaceutical medication is a strong source of community concern. The Committee understands that most people who use substances do so infrequently, and only a small proportion use them in highly harmful ways. However, the adverse consequences arising from such use are far‑reaching and affect individuals, families and the community. Further, a common theme throughout the inquiry was the need to acknowledge the different types of substance use and understand why people engage in certain behaviours. This dialogue has been missing from Australia’s current approach to drugs despite these being important considerations when thinking about the types of strategies to prevent use and minimise harms. There is also growing recognition among governments and the community that greater balance between traditional law enforcement and health‑based responses will have a broader positive effect on the health and safety of communities. 

The report features the following  recommendations

R1: The Victorian Government’s approach to drug policy be based on effective and humane responses that prioritise health and safety outcomes, be in accordance with the United Nations’ drug control conventions, and informed by the following principles:
• promotion of safe communities – reduce drug‑related crime and increase public
safety
• evidence‑based – empirical and scientific evidence to underpin change
• supportive and objective approach to people who use drugs and of drug addiction
• cost‑effective – ensure money spent on drug policy is working to reduce harms
• responsive – flexible and open to change, new ideas and innovation.

R2: In recognition of the imbalanced investment in drug‑related expenditure under the three pillars of demand reduction, supply reduction and harm reduction, the   Government develop a new drug strategy based on the four pillars of: • Prevention • Law enforcement • Treatment • Harm reduction

R3: The  Government establish a new Victorian governance structure to oversee and monitor the four pillars drug strategy. It should include: • Ministerial Council on Drugs Policy – comprising relevant Victorian Ministers responsible for the portfolios of health, mental health, police, education, early childhood education, road safety, corrections, multicultural affairs, and families and children • Advisory Council on Drugs Policy – comprising experts to advise the Victorian Government on drug‑related issues and research in Victoria, in addition to individuals (current users, recovering users, affected families) who actively work with and support people affected by substance use.

R4: The  Government commission an independent economic review into drug‑related expenditure and outcomes in Victoria. This should include a cost‑benefit analysis of all key initiatives and be made publicly available.

R5: The  Government advocate to the Commonwealth Government to conduct a similar review at the national level.

R6: Through the Victorian Centre for Data Insights, the  Government encourage and facilitate a system of strong drug‑related data collection and information sharing across all government departments and agencies. The purpose of this data collection and sharing is to: • build a sound knowledge base to inform drug research and policy efforts • support the development of timely interventions following specific drug‑related events or ongoing incidents • measure the effectiveness of Victoria’s four pillars drug strategy, with regular progress reports to be made publicly available • enhance capabilities and intelligence efforts of Victoria’s law enforcement agencies.

R7: The  Government establish an early warning system (EWS) to enable analysis, monitoring and public communications about new psychoactive substances (NPS) and other illicit substances of concern. This will require greater information sharing and collaboration between Victoria Police, the Victorian Institute of Forensic Medicine, the Department of Health and Human Services, coroners, hospitals, alcohol and other drug sector organisations (particularly harm reduction and peer based services) and other interested stakeholders. Essential components of the EWS should include: • real time public health information and warnings where required • developing a drug registry to understand the NPS market • a rapid response clinical toxicology service for hospitals and poison centres.

R8: The  Government develop specific guidelines on the use of appropriate, objective and non‑judgemental language regarding substance use disorders, addictions and those who use drugs for public policy‑makers, law enforcement agencies and health care professionals. The Government should consult with the appropriate agencies to ensure the guidelines are implemented throughout the working practices of these identified groups. In addition, the guidelines be conveyed to the media and non‑government agencies.

R9: The  Government develop a public awareness campaign on substance use and disorders in order to reduce negative labelling of people who use substances, both illicit and prescription medications, and to reduce the harms associated with substance misuse.

R10: The  Government enhance its existing prevention measures that target children and young people including: • School education programs and resources for young people around resilience and life training skills, in addition to appropriate, age‑specific and evidence‑based drug education programs that focus on preventing drug use, as well as being relevant to young people’s real life experiences and perspectives. This should also include ensuring that school policies align with prevention goals. • Specific programs within schools that aim to build protective factors, particularly for young people identified as at‑risk or requiring enhanced support. • Programs and resources for parents to build resilience and life skills, and enhance protective factors. • Explore the effectiveness of the Iceland model further, particularly the role of communities and families in prevention, in addition to encouraging participation of young people in meaningful recreational opportunities.

R11: The  Government, in consultation with the Victorian Multicultural Commission, conduct research into substance use prevalence among culturally and linguistically diverse communities to inform the development of appropriate prevention measures.

R12: With the intention to develop a primary health care early intervention strategy, the  Government commission an appropriate peak medical body to review the network of general practitioners (GPs) and public hospitals across Victoria and their role in screening and intervening early in people presenting with substance use issues and guide them accordingly. This review should map the current network including identifying GPs knowledge of and attitudes towards substance use and disorders, and barriers to effectively respond to these issues. The strategy should comprise practical responses to overcome identified barriers.

R13: The  Government, while maintaining all current drug offences in law, treat the offences of personal use and possession for all illicit substances as a health issue rather than a criminal justice issue. This approach will ensure appropriate pathways are in place for the referral of people to health and treatment services in a timely manner where required. Mechanisms to achieve this should include: • exploring alternative models for the treatment of these offences, such as the Portuguese model of reform • removing the discretion involved with current Victoria Police drug diversion processes by codifying them  • reviewing all threshold amounts for drug quantities in order to appropriately distinguish between drug traffickers and people who possess illicit substances for personal use only • conducting education and awareness programs to communicate with the public about the need to treat drug use as a health issue.

R14: The  Government expand access to the Magistrates’ Court of Victoria Court Integrated Services Program (CISP) and CREDIT/Bail Support Programs, to ensure consistency in access and equity throughout Victoria. This should be accompanied by enhanced funding to ensure that appropriate support services and alcohol and other drug treatment is available to people diverted from the court system into these programs. The expansion should also include exploring options for the CISP to be available in the County Court of Victoria.

R15: The  Government expand the number of Drug Courts in Victoria, accompanied by funding to ensure appropriate support services and alcohol and other drug treatment is available for program participants.

R16: The  Government explore other court programs for potential implementation in Victoria, including the Hawaii Opportunity Probation with Enforcement (HOPE program).

R17: As proposed by the Adult Parole Board of Victoria, the  Government provide the Adult Parole Board with the power to suspend parole for longer‑term parolees who have been found to use illicit substances but whom have not reoffended. Suspension could be up to three months, and parolees offered treatment during that time. Following the period of suspension, the Board would assess whether they can continue on parole.

R18: The  Government work closely with the Commonwealth Government to improve patient access to medicinal cannabis products, particularly in relation to streamlining requirements at federal and state levels to ensure patients who will benefit from medicinal cannabis treatment in appropriate circumstances have proper access to it.

R19: The  Government continue to work with the Commonwealth Government to explore ways to improve understanding among the medical profession and the public of the current evidence base and situations where medicinal cannabis products may be considered as an appropriate treatment option.

R20: The proposed Advisory Council on Drugs Policy should investigate the role of general practitioners in providing access to medicinal cannabis, and consider how they can be best supported in this area.

R21: To assist health professionals and patients to access this form of treatment, the work of the Independent Medical Advisory Committee be made publicly available.

R22: The  Government facilitate continued investment for research and clinical trials into the use of medicinal cannabis and its effects, including its role in working alongside prescription opioids for pain management and reducing reliance and dosage levels of medication prescribed for pain relief.

R23: The proposed Advisory Council on Drugs Policy investigate international developments in the regulated supply of cannabis for adult use, and advise the Victorian Government on policy outcomes in areas such as prevalence rates, public safety, and reducing the scale and scope of the illicit drug market.

24: The proposed Advisory Council on Drugs Policy investigate the current drug driving laws and procedures to determine their effect on road crashes and as a deterrent strategy. The Council should also explore: • alternative drug driving regimes that use impairment limits/thresholds, and their potential applicability in Victoria • options for expanding the types of drugs captured under the regime • likely changes to drug driving laws resulting from medicinal cannabis use in Victoria.

R25: The  Government review the implementation and enforcement of the recently enacted Drugs, Poisons and Controlled Substances Miscellaneous Amendment Act 2017 in mid‑2019 to evaluate its effectiveness in eliminating the emergence of new psychoactive substances (NPS), and identify any unintended consequences. Other areas for review should include enforcement, NPS‑related harms, NPS availability and prevalence. It should also review the implementation and workability of the definition of ‘psychoactive effect’.

R26: The  Government, in conjunction with Turning Point and other relevant agencies, develop a practice‑friendly treatment pathway tool/resource for general practitioners (GPs) to enhance their awareness and understanding of referral to the alcohol and other drug treatment sector. To accompany this, the Victorian Government also review how Turning Point’s Drug and Alcohol Clinical Advisory Service (DACAS) could be better utilised among GPs, including through increased funding.

R27: The  Government via the Alcohol and Other Drug Sector Reference Group provide expert advice to the Government, the alcohol and other drug (AOD) treatment sector, and the broader medical community on ways to enhance their capacity to effectively respond to people presenting with substance use issues. Specific areas for action might include:   • identify further funding options through mapping the current capacity and gaps within AOD service delivery against existing and future demand for services. Particular attention to be provided to all treatment options to ensure flexibility in service delivery, acknowledging diversity and differing needs among potential clients. Specific opportunities should be identified for different cohort groups such as clients with co‑existing mental health issues and substance use disorders, culturally and linguistically diverse communities, Aboriginal and Torres Strait Islander communities, and those from rural and regional areas • explore effective and workable measures to expand Victoria’s specialist addiction medicine capacity, in addition to ensuring the AOD treatment sector is adequately supported by its existing workforce • explore options for a public multidisciplinary health clinic model that comprises access to opioid substitution therapy prescribing doctors, addiction specialists, mental health services, support and other allied health services • develop a model of care for public hospitals when treating patients presenting with substance use issues, which could include medical staff undertaking drug screening and developing clear treatment pathways and reintegration with specialist AOD treatment services.

R28: The  Government note ongoing considerable concerns within the community about private unregistered providers of alcohol and other drug (AOD) treatment and continue to advocate for the development of a national regulatory framework and standards for private AOD treatment.

R29: The  Government provide increased support and funding to family support programs to minimise the adverse impact of substance misuse on family and friends, and to contribute to the effective reintegration of people with substance use disorders back into the community.

R30: The  Government evaluate prison alcohol and other drug programs based on their effectiveness in reducing recidivism, particularly where offending is directly related to substance use issues. Inquiry into drug law reform

31: The  Government establish a dedicated arm of government to actively manage opioid substitution therapy (OST) policy in Victoria. The dedicated unit should explore options for enhanced data collection on OST, including current take‑up, compliance rates, people who have ceased treatment and why. It should also explore an OST registry for general practitioners and pharmacies where they can seek information on current prescribers/ dispensers in specified areas.

32: The  Government fund opioid substitution therapy (OST) dispensing fees to enhance access and remove barriers to a person entering and remaining on OST.

33: The  Government expand access to opioid substitution therapy (OST) through a range of measures including: • the provision of financial incentives to general practitioners and pharmacists to prescribe OST, particularly as the current cohort of prescribing doctors is ageing and a shortage is expected • enhancing the role of nurse practitioners to prescribe OST • exploring models for hospitals to provide OST to suitable patients as part of emergency department treatment.

34: The  Government trial the expansion of the opioid substitution therapy program to include other controlled and pharmaceutical grade opioids (such as hydromorphone), for a small group of people for whom other treatment types have not been successful. This should be accompanied with robust evaluation.

R35: In the short term, the  Government, in conjunction with the Australian Medical Association and other relevant medical bodies, develop prescription opioid medication guidelines for general practitioners and training on appropriate prescribing practices. This should include guidance on monitoring patients, lowering dosages when appropriate, education on the risks of dependence, and effective pain relief alternatives to such medication.

R36: The  Government develop and promote a sector‑wide stewardship trial program for the medical profession (hospitals, specialist services and general practitioners) based on the Alfred Health model to promote and audit best practice regarding the prescribing and use of medications with potential for misuse (such as analgesics and benzodiazepines). This should be accompanied with promotion and education of best practice in this area and of appropriate attitudes towards pain relief among health professionals. The program should also be accompanied with an evaluation.

R37: The  Government develop resources and support or conduct awareness raising campaigns targeting the broader community about the safe and appropriate use of prescription medications for pain relief and promoting the role of non‑pharmacological treatments for certain conditions (e.g. stress, anxiety and chronic pain). This could start with a targeted campaign that aims to reach patients in health settings and expand to a broader audience if required.

38: The  Government work with the Commonwealth Government to review the fee structure for dispensing medication with potential for misuse, so that the volumes prescribed and dispensed be based on individuals’ needs. Fee structure changes could include: incentivising pharmacies to dispense fewer tablets and subsidising patients who receive smaller amounts of medications. As part of this, the Victorian Government should work with the Pharmacy Guild of Australia and other relevant bodies regarding the role of pharmacies in improving dispensing practices.

R39: The  Government adopt measures to ensure the effectiveness of the real‑time prescription monitoring (RTPM) system and prevent the diversion of patients with prescription misuse issues to the illicit drug market, including: • adequately resourcing the alcohol and other drug public treatment sector to accommodate the likely influx of demand resulting from patients identified in the RTPM system with opioid dependency • as part of Department of Health and Human Service’s workforce development and training, ensure that health professionals are equipped to appropriately deal with patients identified in the RTPM system with substance use issues, for example through providing immediate and seamless access to harm reduction and/or treatment services, such as opioid substitution therapies.

R40: The  Government review Victoria’s needle and syringe program (NSP) in order to strengthen the aims, coverage, service models, harm reduction information and equipment distributed to people who use illicit substances. This should include: • exploring avenues to increase NSP availability in areas where there is an identified shortfall particularly after‑hours, such as in public hospitals, vending machines/dispensing units, and community pharmacies • ensuring that staff of NSPs are culturally aware and sensitive to the needs of people who identify as Aboriginal and Torres Strait Islander and others from culturally and linguistically diverse communities • enhancing the capacity of the NSP workforce to engage with people with hepatitis C to educate them about potential treatment options and refer them accordingly.

R41: The  Government remove the prohibition of peer distribution of sterile needles and syringes in the Drugs, Poisons and Controlled Substances Act 1981.

R42: The proposed Advisory Council on Drugs Policy review harms arising from current laws that prohibit or discourage non‑injecting routes of drug administration, such as increased injecting use of methamphetamines and other drugs, and make recommendations to the Government accordingly.

R43: The  Government review its screening policies for blood borne viruses in prisons to: • offer screening to prisoners upon release, in the same way they are offered screening upon entering prison or transferring between prisons • explore the feasibility of introducing compulsory blood screening of prisoners upon entering and exiting prisons to determine transmission of blood borne viruses within prisons. This review should consider all human rights implications associated with mandatory screening.

R44: The  Government monitor data from screening processes, as recommended above, and monitor international needle and syringe prison programs to consider their potential value to minimise transmission of blood borne viruses. The Victorian Government share information with prison staff and relevant bodies to increase awareness and open dialogue about the benefits and risks of needle and syringe programs in prisons.

R45: The  Government explore avenues to distribute naloxone more effectively. Such avenues might include: • needle and syringe programs and other community health services where staff are trained to educate others in administering naloxone • making naloxone available in appropriate settings where people who use opioids may frequent, such as treatment services (detox and residential rehabilitation services), crisis and emergency accommodation, which staff can administer when necessary • making naloxone available to first responders to overdose calls in areas with high concentrations of injecting heroin use, accompanied with appropriate training • other ways to make naloxone available, including through enhanced peer distribution.

R46: The  Government make naloxone available to prisoners with a history of opioid use upon their release from prison to minimise the high risk of overdose deaths among this cohort of people, and provide them with appropriate information and support services available in the broader community to minimise the likelihood of overdose.

R47: The  Government develop an emergency action plan to respond to a potential increase in deaths or overdoses as a result of high strength and purity of illicit substances, for example the presence of fentanyl and carfentanil in the drug market. This could include: • targeted strategies for specific cohorts of people that use substances, such as those based in regional and rural areas, Aboriginal and Torres Strait Islander people, people from culturally and linguistically diverse communities, and people experiencing mental health issues • wider distribution of naloxone to people who inject drugs (recommendations 45 and 46) • explore avenues to enhance availability of opioid substitution therapies, such as lowering thresholds for access and reducing costs (recommendations 32 and 33), and expanding opioid‑based treatment for people with a chronic heroin addiction (recommendation 34) • possible establishment of temporary medically supervised injecting facilities in areas with high concentrations of injecting drug use and overdoses • drug checking at the Medically Supervised Injecting Centre to test for heroin purity and other contaminants.

R48: The  Government work with the Department of Health and Human Services, Victoria Police, Ambulance Victoria and DanceWize to facilitate the availability of an onsite drug testing unit for health and law enforcement authorities at an appropriate music festival to be used in the event of a suspected overdose or other serious adverse effects due to an illicit substance. The unit would not be public facing and its purpose is to test substances to determine their composition to assist health authorities treat the patient and, where appropriate, release a public alert to prevent further incidents. The unit will operate as part of the early warning system as recommended in chapter four.

R49: The  Government refer to the proposed Advisory Council on Drugs Policy the issue of drug checking services, and request that it monitor overseas and domestic models to obtain relevant evidence to inform consideration of a trial in Victoria. If appropriate, the Council should develop guidelines for such a trial (and include appropriate messaging e.g. not condoning drug use nor indicating that drug use is safe, appropriate technology, data collection and clear liability safeguards). The Council should also consider an evaluation framework to measure the future trial’s effectiveness in minimising drug‑related harms.

R50: Victoria Police commission an independent evaluation of the use of drug detection dogs at music festivals and other public spaces to determine their effectiveness in deterring the use and trafficking of illicit substances, and any unintended consequences or risk of harms resulting from this strategy.

Cloudy Property

'Property and the cloud' by Cesare Bartolini, Cristiana Santos and Carsten Ullrich in (2018) 34(2) Computer Law and Security Review 358-390 comments

Data is a modern form of wealth in the digital world, and massive amounts of data circulate in cloud environments. While this enormously facilitates the sharing of information, both for personal and professional purposes, it also introduces some critical problems concerning the ownership of the information. Data is an intangible good that is stored in large data warehouses, where the hardware architectures and software programs running the cloud services coexist with the data of many users. This context calls for a twofold protection: on one side, the cloud is made up of hardware and software that constitute the business assets of the service provider (property of the cloud); on the other side, there is a definite need to ensure that users retain control over their data (property in the cloud). The law grants protection to both sides under several perspectives, but the result is a complex mix of interwoven regimes, further complicated by the intrinsically international nature of cloud computing that clashes with the typical diversity of national laws. As the business model based on cloud computing grows, public bodies, and in particular the European Union, are striving to find solutions to properly regulate the future economy, either by introducing new laws, or by finding the best ways to apply existing principles.

Flipping the First Year Law classroom

'Blended Learning in the Law Classroom: Design, Implementation and Evaluation of an Intervention in the First Year Curriculum' by Melissa Castan and Ross Hyams in (2017) 27(1) Legal Education Review comments 

When a university-mandated ‘Better Teaching Better Learning’ agenda targeted at unit enhancement coincided with a whole of curriculum review, law lecturers teaching first year law units at Monash University piloted a ‘semi-flipped’ series of short videos, supported by online and in-class activities, in order to incorporate blended learning design in key foundation units. This paper examines the key issues in the design, and implementation and evaluation of the ‘semi-flipped’ experience, highlighting lessons learnt, in terms of technical support, pedagogical issues and assessment considerations. In particular, the utility in seeking to evaluate students’ learning outcomes, engagement with reading materials and in-class activities is critically considered. 

The authors conclude

This article has set out the rationale, implementation and responses to a pilot project in the introductory law unit in a major Australian law school. It has identified the key areas of student feedback to this project, highlighting areas of positive and negative reactions, and made some observations as to the impact of the project. Although this was not an entirely ‘flipped’ unit, it certainly attempted to utilise the most well-known elements of online and face-to-face law teaching, in a blended approach. It began as a pilot project, but is being continued within the law school, and incrementally expanded and enhanced over the following iterations of the unit. We believe there are important lessons to be learnt from our foray into ‘semi-flipped’ teaching of the first year unit.

First, it is important to build in the opportunity to more fully evaluate the changes that we make to teaching methodologies in order to listen to our students’ opinions of how they prefer to learn — while keeping in mind that there is no one teaching style which will satisfy all students.

Second, is also important to create teaching methodologies that have some permanency and can be repeated (albeit with minor necessary changes) from semester to semester and year to year. The original creation of the videos, quizzes and interactive classroom activities were a substantial time investment, but it has paid off in terms of being useable for the future and provides consistency for all students in the foundations unit, across all the teaching streams.

Third, we have learnt that there is no ‘magic bullet’ which will perfect the teaching of first year law students for all time — it is a question of active experimentation and incremental change.

Finally, we remain conscious of the specific need of first year students to have warm and engaging lecturers, who will support the transition from school to university, and guide them in their acculturation into the law school, and the practice of law itself. So, we conclude that a fully ‘flipped’ or even fully online unit for this cohort is not the preferred presentation for our students. Nevertheless, it is apparent that students responded in a largely positive way to the combination of online and in-class teaching of this unit. In that sense, we believe that the advantages of the semi-flipped class lies in the potential enhancement of student motivation, engagement and satisfaction, key indicators of student learning and success in their future studies.

However, we consider that there are limitations in accurately measuring ‘engagement’ and ‘satisfaction’ without adopting a fullscale longitudinal study, and incorporating control groups and other validity measures. For this reason, we remain unable to conclusively prove that, and remain somewhat sceptical of, the assertions that blended learning alone is advantageous to law student learning outcomes. It is our view that trying to measure engagement is a challenging task and to do so properly requires a well-constructed Likert-scale survey that is designed to measure motivation and other intrinsic variables.30 Aside from the issues raised above, there may well be other collateral benefits to students that support the development of innovations in curriculum delivery. Indeed, Hewitt and Stubbs have considered whether there may be benefits to student well-being arising out of these sorts of exercises. Field and Duffy have also explored how first year curriculum design can promote law student psychological wellbeing. Whilst this was not an explicit goal in our unit re-design, we of course, remain conscious of the need to engage, motivate and support our students in order to enhance their learning experience and personal development in these formative years. Where blended learning approaches offer the opportunity for students to scaffold their knowledge and to develop reflective learning practices, and can put these to use in a supportive class environment, it is likely to show enhanced learning outcomes.

'The pedagogy of legal reasoning: democracy, discourse and community' by Chloë J. Wallace in (2017) The Law Teacher comments

Learning legal reasoning is a central part of any undergraduate law degree and remains a threshold concept: one which is vital for any law student to grasp, but which is often difficult to explain. It is a form of reasoning which is very distinctive to the discipline. This article explores the applicability of learning theories typically used to ground pedagogy in higher education to the specific task of teaching legal reasoning. Constructivist or experiential theories of learning are widely used in higher education, but they need to be used with a clear focus on the specific nature of legal reasoning, which does not fit neatly within the assumptions about learning which underpin many constructivist approaches. Situated learning theories, which place emphasis on the role of the community in constructing knowledge, can also be of value. However, steps need to be taken to avoid replicating the hierarchy of the legal community within educational communities. Overall, the pedagogy of legal reasoning needs to pay attention to the specific nature of legal reasoning, to enable students to access the discourse of the legal community to use as a model, and to take students seriously as members of that community.

All these approaches have involved reflection on pedagogy and learning theory. However, less attention has been paid to pedagogy and learning theory within the most traditional activity of undergraduate legal education: the teaching of legal reasoning. Given that this remains a central part of what law graduates are expected to be able to do, reflection on its pedagogy is important.

In this article, the pedagogy of legal reasoning will be considered through discussion of theories of learning. An introductory section will focus on the nature of legal reasoning, taking an interpretive approach. Next, a range of learning theories will be analysed with emphasis on their applicability to legal reasoning. Finally, a range of strategies for teaching legal reasoning will be explored. Throughout, it will be argued that the specific nature of legal reasoning requires a discipline-specific approach to pedagogy, informed by a range of learning theories; used alone, the constructivist theories which dominate much writing about learning and teaching are inappropriate to the discipline.

The Gresham Brief and Contempt

'The Runaway Judge: John Grisham's Appearance in Judicial Opinions' by Nicholas Mignanelli in (2018) 48(3) University of Memphis Law Review comments

Each year, countless scholars publish articles in law reviews across the country hoping to have some impact on the way courts interpret and apply the law. To have one’s labors approvingly cited or discussed by a court is one of the highest compliments a legal scholar can receive. Thus, it is the height of irony that judicial opinions have discussed or alluded to the works of novelist John Grisham — an attorney who has never authored a law review article — over two dozen times. 

This study begins with an explanation of methodology and an annotated bibliography of the results. Next, the author discusses the various ways that courts have used Grisham’s works, categorizing each case according to its function. The author concludes with further speculation about why judges are drawn to Grisham’s novels.

In Victoria a solicitor has been reprimanded by the Victorian Civil and Administrative Tribunal after being found guilty of contempt of Court.

The Victorian Legal Services Commissioner told VCAT that in South Yarra solicitor Michael Wit, had sent an email that the Supreme Court of Victoria found likely to be prejudicial to the administration of justice. The email sent by Witt to his client and some members of the client’s family referred to orders made by  Justice Kyrou of the Supreme Court. Those orders restrained Witt’s client and two of his sons, both  overseas, from taking steps to transfer ownership of particular properties.

 VCAT heard that Witt’s email explained that the Court order could be circumvented and the properties transferred by his client’s sons, if the sons did not know the orders had been made. Witt wrote:

 In the new case the Judge made orders against [the sons] restraining them from trying to progress the transfers … I have deliberately left [the sons] off this email as I do not want it to be able to be said that they had any notice or knowledge of the orders made against them because for so long as they do not have notice of this then they cannot be in contempt if they do not comply. I therefore strongly advise that no one tells [the sons] anything about this new case other than to warn them to look out for process servers in Prague.

VCAT heard that the Supreme Court in The Queen v Witt (No 2) [2016] VSC 142 had found Mr Witt guilty of contempt of Court, that he had been fined $25,000 and ordered to pay the plaintiffs’ costs of $127,525 on top of his own legal fees of $369,855. See also The Queen v Witt (Costs Ruling) [2016] VSC 169.

Witt pleaded guilty to a charge of professional misconduct brought by the Commissioner for his substantial failure to reach or maintain a reasonable standard of competence and diligence.

 In assessing the penalty, VCAT took into account the results of the civil contempt proceedings and the fact that the Victorian Legal Services Board had restricted Mr Witt’s practising certificate to allow him to practise only as an employee solicitor from 12 September 2016 to 30 June 2017. VCAT reprimanded Mr Witt and ordered him to pay the Commissioner’s costs of $10,000.

Pelvic Mesh Inquiry Report

The Senate Community Affairs References Committee report on Number of women in Australia who have had transvaginal mesh implants and related matters notes evidence by Dr Wendy Bonython and myself.

The report features the following recommendations

R 1 Noting the vital role of adverse reporting in post-market surveillance, the committee recommends that the Australian Government, in consultation with the states and territories and the Medical Board of Australia, review the current system of reporting adverse events to the Therapeutic Goods Administration to: 

• implement mandatory reporting of adverse events by medical practitioners; 

• provide guidance on what constitutes an adverse event for use by consumers, medical practitioners and device sponsors; 

• improve awareness of the reporting system;and 

• examine options to simplify the reporting process; 

R 2  The committee recommends that the Therapeutic Goods Administration and the Australian Commission on Safety and Quality in Health Care develop an information sheet to be provided to recipients of patient cards for implantable devices providing guidance on appropriate action to take in the event of an adverse event, including guidance on seeking appropriate treatment and support and on reporting the event. 

R 3 The committee recommends that the Australian Government prioritise consideration of the implementation of Recommendation 22 of the report of the Review of Medicines and Medical Devices Regulation recommending the establishment of a registry for all high-risk implantable devices, together with consideration of the feasibility of establishing such a registry on a cost recovery basis, and provide to the Senate by 29 November 2018 a progress report on work to date. 

R 4  The committee recommends that the Medicare Benefits Schedule Taskforce prioritise release of the report of the Gynaecology Clinical Committee for consultation. 

R 5 The committee recommends that the Australian Government prioritise the establishment of a more comprehensive post-market monitoring scheme and provide to the Senate by 29 November 2018 a progress report on work undertaken to date. 

R 6 The committee recommends that the Australian Commission on Safety and Quality in Health Care prepare guidance material on effective informed consent processes, with a view to ensuring that a dialogue between a medical practitioner and patient should:

• clarify the rationale for the proposed treatment; 

• discuss the range of alternate treatment options available and their attendant risks and benefits; 

• discuss the likely success and potential complications of the recommended treatment as they relate to the individual patient; 

• provide an opportunity for the patient to ask questions; and 

• confirm that the individual patient has understood the information discussed. 

R 7 The committee recommends that treatment guidelines developed by the Australian Commission on Safety and Quality in Health Care should clearly indicate that transvaginal mesh implantation should only be undertaken with fully informed consent and as a last resort when other treatment options have been properly considered and determined unsuitable. 

R 8 The committee recommends that the medical professional specialist colleges and societies ensure that processes are in place to draw their members' attention to the resources released by the Australian Commission on Safety and Quality in Health Care and implement arrangements which require members to consider the resources in their practice. 

R 9  The committee recommends that the Commonwealth, state and territory health Ministers require that guidance developed by the Australian Commission on Safety and Quality in Health Care for the credentialing of medical practitioners who perform transvaginal mesh procedures should underpin credentialing processes in all public hospitals and work with private hospitals to encourage the adoption of a similar requirement. 

R 10  The committee recommends that medical professional colleges and specialist societies implement governance arrangements for transvaginal mesh procedures which require that their members: 

• are trained in the use of the specific device; 

• are adequately skilled to perform the specific procedure, including procedures for partial or full removal of transvaginal mesh devices; 

• work within a multidisciplinary team; 

• monitor and report patient outcomes; and 

• maintain a record of the outcomes of such procedures, including any complications. 

R 11  The committee recommends that Commonwealth, states and territory governments commission the Australian Commission on Safety and Quality in Health Care to undertake an audit of transvaginal mesh procedures undertaken and their outcomes since the introduction of transvaginal mesh devices for use in the Australian market. 

R 12  The committee recommends that the Department of Health work with the Medical Technology Association of Australia and the Medical Board of Australia to review the systems in place within the device manufacturing industry and the medical professions to support consistent, high ethical standards, with specific emphasis on systems in place to prevent the payment of inducements to medical professionals and teaching hospitals. xi 

R 13 The committee recommends that State and Territory governments continue to work with the Australian Commission on Safety and Quality in Health Care to review the provision of services for the use and removal of transvaginal mesh devices. In particular, the committee recommends that consideration be given to the establishment of:

• information and helplines that women who have received transvaginal mesh implants can contact for advice on the availability of treatment and support services, including financial support programs, in their state; 

• specialist counselling programs, to assist women who have sustained injuries following transvaginal mesh procedures; 

• specialist multidisciplinary units for the assessment and management of complications associated with transvaginal mesh procedures, comprising: 

• comprehensive diagnostic procedures, including relevant diagnostic imaging facilities and expertise; 

• specialist pain management expertise; and 

• high level expertise in the partial or full removal of transvaginal mesh; 

• advice and practical assistance for women who are seeking to access their medical records; and 

• the provision of further guidance for medical professionals on recording the use of implantable devices on medical records and reporting adverse events to the Therapeutic Goods Administration.