Regulatory Incapacity

'Mortgage Broking, Regulatory Failure and Statutory Design' by Jeannie Marie Paterson and Elise Bant in (2020) 31(1) Journal of Banking and Finance Law and Practice comments

 The Royal Commission into Misconduct in the Banking, Insurance and Financial Services Industry and the Productivity Commission Report into Banking raised questions about the quality of the service provided by mortgage brokers to consumers and recommended far-reaching changes to the way in which the mortgage broking industry is regulated. In response, the Commonwealth Government has recently introduced a “best interests” duty and tighter regulation of commissions. This new regime has potentially far-reaching significance, as the broking industry itself is at the threshold of considerable technological change prompted by the introduction of the Open Banking’s initiative. This article assesses the reforms in terms of: (1) efficacy in improving the quality of the service provided by mortgage brokers; (2) fit with the existing regime, including insights from fiduciary law; and (3) flexibility in adapting to technological innovation. It aims to highlight the importance of good legislative design in responding to concerns about the effective functioning of a regulated market. 

The same issue features 'Trust, Social Licence and Regulation: Lessons from the Hayne Royal Commission' by Anne Matthew, offering

 a critical approach to examining key findings of the Hayne Royal Commission, using institutional theory as a lens. Institutional theory positions the social contract within its understanding of laws, rules and norms. It is argued that the Royal Commission’s recommendations calling for a stronger regulatory response and simplification of the law are supported by institutional theory. Enforcement and simplification can provide clarity that the law is in fact a rule of the game and ensure that the institutional rules are in a strong position to influence behaviour. The role of the regulator in this process is pivotal.

'Product Intervention Power: An Extra Layer of Protection to Consumers' by Marina Nehme, comments

 In April 2019, the Australian Securities and Investment Commission (ASIC) was provided with the power to issue product intervention orders – that is, where a financial services/credit product available to retail clients/consumers has caused, will cause or is likely to cause a significant consumer detriment, ASIC may “regulate, or if necessary, ban” that product. The Treasury Laws Amendment (Design and Distribution Obligations and Product Intervention Powers) Act 2019 (Cth) also empowers ASIC with design and distribution powers for financial services/credit products; this power will come into effect in April 2021. These powers have been on the horizon since the Financial System Inquiry in 2014, which hoped that product intervention powers (PIPs) might help to “build consumer confidence and trust in the financial system”. This aim remains urgent, particularly following well-publicised findings by the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry of poor and even illegal practices in the financial industry. This article analyses these reforms with the aim of understanding the extent to which PIPs might enhance the regulatory regime and promote consumer trust.

Victoria Stace's  'Consumer Lending by New Zealand Banks After the Royal Commission – Business as Usual or More Responsibility Required?' comments

This article looks at the question of whether banks in New Zealand – which are for the most part wholly owned subsidiaries of Australian banks – would be acting in breach of New Zealand’s responsible lending laws if they engage in certain conduct that was found by the Australian Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry to be in breach of the Australian responsible lending laws. This involves considering the differences between the responsible lending laws in each jurisdiction, and assessing whether the conduct identified by the Royal Commission to be in breach of Australian laws would contravene New Zealand’s equivalent laws. The article focuses on the lender’s obligation to assess whether the proposed credit will cause the borrower substantial hardship, as this was a particular focus of the Royal Commission.

Steve Kourabas's 'Prudential Regulation in Australia and the Banking Royal Commission: A Missed Opportunity for Reform?' argues

The global financial crisis (GFC) revealed fundamental regulatory weaknesses in many of the world’s leading financial jurisdictions. In particular, there was a lack of attention to risks of a systemic nature. Post-GFC regulatory reforms in many of the world’s leading financial jurisdictions have sought to address this problem through the introduction of regulation that emphasises the systemic nature of financial risk as well as changes to regulatory structures. However, Australian policy-makers and regulators have tended to focus more on market conduct and consumer protection matters as evidenced during the recent Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry. This article argues that the secondary status of systemic financial stability as a regulatory concern in Australia following the GFC undermines the centrality of systemic financial stability as a regulatory goal. The article proposes a number of reforms that have been introduced in jurisdictions such as the United Kingdom to give effect to global best practice following the GFC and that have as their key aim the maintenance of systemic financial stability.

'Role and Effectiveness of ASIC Compared with the SEC: Shedding Light on Regulation and Enforcement in the United States and Australia' by Zehra G Kavame Eroglu and KE Powell  comments

The Australian Securities and Investments Commission’s (ASIC) regulatory oversight of securities and financial markets has increased considerably over time. However, the wisdom of this model has recently been challenged by the Hayne Royal Commission as ASIC’s enforcement activities were found to be relatively toothless. Accordingly, many criticised the agency and called for further ASIC reform. After the Global Financial Crisis, the US Securities and Exchange Commission (SEC) faced similar criticisms of regulatory failure. As such, this article analyses the SEC regulatory structure, enforcement activities and governmental resources, and compares certain indicators of effectiveness with those of ASIC over the past quarter-century. By comparing ASIC with the world’s biggest capital market regulator this article analyses the viability of further reform of ASIC and argues that ASIC is woefully under-resourced to engage in increased enforcement action. 

Secession and the Beast

Noting media reports - alas without much detail - dealing with the supposed secession bid in Western Australia last week by the New Westralia group, breathlessly characterised in one item as 'the sovereign nation that attempted to overthrow the state government 24 hours ago'.

The New Westies appear to be greatly worried by the mark of the beast, a Jesuit conspiracy and other nonsense. They supposedly  'declare themselves against foreign incursion, domestic insurgency, mercenary, treachery, sedition and treasonous behaviour', with member Wade Guerin  alerting people on Facebook - but of course - that 'Under diplomatic immunity we are all protected by international criminal court'. The WA Police disagree.

Guerin and three associates broke into the old York courthouse on Friday, claimng to serve notice on the WA government through decrees posted on the courthouse wall. Gone are the days where Luther nailed his tract to the front door.

The New Westies declared the building theirs, reportedly demanding keys and security codes within 72 hours and declaring  null and void all current lease agreements and management orders on the basis that New Westralia is the 'legitimate sovereign authority acting in the interests of the people native of the Dependencies of Western Australia'. The Police arrived, arrests followed, the world was unpersuaded by the message

we are under siege at the current moment in York, Australia and staying strong in our court ... please do your research as much as possible, good people ... I can only show you the way, we must all attempt our own escape and everything is in play to do so, trust me

or by the prayers of the revolutionaries.

Prayer is relevant, given their characterisation of the Australian flag as satanic, denunciation of The Bishop of Rome and reference to New Westralia as 'a Christian nation' that 'strives to be a world class destination for spiritual vitality, enlightenment, meditation, wonder and expression, on the great adventure of life'. In case you were in doubt, the New Westies claim to be 'a constituted body for true allegiance, protection, prosperity, care and maintenance of peaceful society, and the depository for the proper administrative governance for the people native of the Dependencies of Western Australia'.

The people have been charged with criminal damage, trespass, and obstructing police.

The Friends of New Westralia site states

New Westralia (trust) is a constituted body (Executive Council) for true allegiance, protection, prosperity, care and maintenance of peaceful society, and the depository for the proper administrative governance for the people native of the Dependencies of Western Australia. 

New Westralia body politic (Executive Council) is based on a model of co-operative association of peers, one share – one vote, representative governance from local council upwards. 

New Westralia attests to be the legitimate sovereign authority acting in the interests of the people native of the Dependencies of Western Australia, their heirs and successors, And, Defender of the Imperial Realm proper in the name of Her Majesty Queen Elizabeth the Second, the Protestant Supreme Governor of the Church of England in her absentia by capture, retardation, disinterest, or uncaring of Her loyal subjects current plight, as it may be. 

New Westralia attests to be the proper Governing body of law for the Dependencies of Western Australia, and other Territories inclusive, taking the usufruct in safe hands for the benefit of the people of the Dependencies of Western Australia. 

New Westralia stands against foreign incursion, domestic (terrorism) insurgency, mercenary, treachery, sedition and treasonous behaviour against the Imperial Crown proper or injurious to the people of Western Australia, or our other Australian friends. 

New Westralia pledges reciprocal loyalty and true allegiance, to govern in good faith and return confidence to the institutions and structures of a Just Society, with Certainty of Future paramount to the interest of harmony, peace and security. 

New Westralia offers, advocacy, investigation and protection from unwanted intrusion, servitude, commercial predation, alienation of rights and property among other things.

The Mission Statement is a hoot, complete with the usual sovereign citizen mumbo jumbo about all caps names

Hierarchical order and system malfunction  

The spiritual War 

Christian/ spiritual (Universal) faith - Enlightenment v Dark forces satanic cult control matrix (Protestant Church of England v Roman Vatican cult/ Global UN NWO/ Elite 1%) 

The Governor in trust 

Supreme Governor of the Protestant Church of England – Queen Elizabeth the Second, Defender of (Universal) Faith. 

The free men 

The free men/ People – Subjects of Her Gracious Majesty (free- will/ choice)

 The Constitution

Commonwealth of Australia Constitution (1901)

The inherent design flaw within 

S51 allows Parliament discretion to make laws/ treaty and many other things. (Deliberate subterfuge to maintain control/ the inherent design flaw within).   

The COMPANY  

AUSTRALIA corp (Jesuit control/ “The COMPANY”).  

The CITIZEN 

PERSONS= Legal Personality/ CITIZEN (OF ROME),with Numerical Legal Entity Identifier (LEI). 

The Number of the beast.  

Workers/ contractors/ mercenary service, bound by the terms of the contract/ Bondsmen. 

The CONTRACT 

Drivers Licence, Passport, Social Security, medicare (ALL CAPS NAME) (The voluntary Contract = Performance / Consent) 

Conditions  

All legal PERSONS operating within “The COMPANY” (AUSTRALIA) are Bound by the terms and conditions imposed upon them in (voluntary)servitude. 

Alteration of contract 

The COMPANY may alter or amend those terms and conditions periodically where continued consent is presumed by acquiescence or performance. 

Personal Representation accepted 

That is to say, if you say nothing(silence) or should you mark the Polls/ Head count (vote, object or protest) thereby clearly accepting the attendant Personal representation/ liability of that Undertaking. 

Impaired Performance 

Where objection, protest or belligerence dishonours or impairs (YOUR) performance to the consensual undertaking (the contract) there is sufficient legal evidence to constrain non- performance obligations, by WHAT EVER FORCE SEEMS REASONABLE, PROPORTIONATE and NECESSARY. 

Protest 

All protest, discontent, belligerence, agitation, threat, violence causing damage, loss or injury (in it’s legal sense) is contained within the Contract THE BELL/ DOME). 

Justification for the use of Force 

Should the COMPANY amend, alter or change the terms of that contract(Legislation amendments) and your consent be provided (in it’s legal sense) and people protest, agitate, threaten (Rebel) against the new rules, force may be Justifiably used to quell any insurrection. 

Visualisation- the Bel/ Pressure Dome 

In a visualisation we could imagine a bell or dome where the top of the bell is the Legislated Rules of the COMPANY we have consensually agreed to abide by, by our acquiescence or performance (accepting the benefit of CITIZENSHIP). 

The shape of the Bell/ Pressure Dome 

The tapered sides of the bell/ dome are the penalties imposed on infraction of the agreed rules, thereby containing the belligerence under its own pressure. 

The Pressure increases 

Should the new rules imposed cause anxiety or trouble the PERSONAS legally employed in occupation, and social unrest will press against the steadily tightening walls of the bell/ dome and without relief something must give as the pressure naturally increases.... 

Reality exposed 

This is the constructive reality we observe today, mandated vaccinations, loss of rights, applied force against insurrection(police state/ martial law), frustrated protest or objection, ever changing political rules, financial limitation, poverty and depression all contained inside the bell where relief is completely and utterly dependant upon the whim of the COMPANY. 

Our Naivety 

If you would be so naive to think that the mob has the necessary might or organisation to overwhelm or remove the COMPANY you would be grievously mistaken. 

Know Who You Are 

To remove yourself form the occupation(the COMPANY) you may have mistakenly undertaken allegiance, pledging obedience to the foreign occupier you must know who you are, and behave with dignity and restraint. 

Find Godliness and peace 

Find god or/ and the mystery/ mastery of your self. 

The Remedy 

There you have your peaceful remedy.

Analytics

'Re-imagining ‘Learning Analytics’ … a case for starting again?' by Neil Selwyn in (2020) 46 The Internet and Higher Education comments

This brief paper develops a series of provocations against the current forms of Learning Analytics that are beginning to be implemented in higher education contexts. The paper highlights a number of ways in which Learning Analytics can be experienced as discriminatory, oppressive and ultimately disadvantaging across whole student populations, and considers the limitations of current efforts within educational data science to increase awareness of ‘ethics’ and ‘social good’. This culminates in a stark choice: is it possible to substantially improve the field of Learning Analytics as it currently stands, or should we abandon it in favour of new forms of applying data science that are aligned with the experiences of non-conforming ‘learners’ and un-categorizable forms of ‘learning’?

Selwyn argues

Much of this special issue is understandably concerned with thinking the best of Learning Analytics. After all, the idea of Learning Analytics raises a number of seductive promises for all stakeholder groups currently involved in the development and implementation of these technologies in higher education settings. What educational data scientist would not want their work to foster potentially powerful forms of active learning across large student populations? What higher education leader would not want rich, detailed insights into key institutional ‘performance points’ such as student performance, retention and engagement? 

In contrast, then, this brief article deliberately considers the premise of this special issue in a contrary manner. Instead of ‘reading with’ the promises of Learning Analytics, what happens if we choose to ‘read against’ them? What are the fundamental social problems inherent in the ways that Learning Analytics products and practices are being realized in higher education contexts? Who is most likely to be experiencing these issues? How might we ‘think otherwise’ about the application of analytics in higher education – particularly if ‘we’ is taken to include the many interest groups not currently included in the notion of Learning Analytics ‘stakeholders’? As I hope this paper will show, ‘thinking the worst’ can be a useful means of ‘stress testing’ the core premises, principles and politics that the current implementation of learning analytics into education is currently built around. 

Of course, what readers choose ultimately to do with these insights will depend on their own underpinning agendas, values and ideologies. Yet regardless of one’s background, this is a highly appropriate moment to be introducing an element of pessimism into proceedings. People working in the area of learning analytics, education data-mining and other forms of ‘educational data science’ find themselves at a crossroads. On one hand, the vast majority of people working along these lines are clearly very thoughtful and well-intentioned - developing products, protocols and practices that they genuinely hope (if not believe) will considerably improve learning and learners’ experiences of engaging in education. On the other hand, going by the forms of ‘analytics’ that we see being implemented in higher education contexts, there might well be a strong case for radically rethinking how ‘Learning Analytics’ is playing out beyond the confines of LAK, SOLAR and the other academic manifestations of Learning Analytics. 

To be blunt, then, this paper starts from the contention that something is surely amiss if the main aim of academics working in this area is to be “caring and supportive” (Prinsloo, 2019), but significant numbers of people continue to experience Learning Analytics tools and techniques as “data being used against me to screw me” (Essa, 2019). This tension has been highlighted in the recent Twitter-controversies over the propensity of learning analytics tools and systems to be used for purposes of institutional surveillance rather than individual support (e.g. Kovanovic, 2019). As I have argued elsewhere: “All told, there is an emerging suspicion (warranted or not) that students are not the primary beneficiaries of the Learning Analytics technologies they are subjected to during their school or university education” (Selwyn, 2019). 

So, in this brief paper I want to reflect a little further on these tensions – especially the question of what academics working in the area of Learning Analytics consider the political intent of their work to be. If we take the politics of Learning Analytics seriously, then perhaps we need to begin thinking along more radical lines than simply embracing ‘ethics’ and trying to foreground possible ‘social goods’ that educational data science might support. Instead, it might be a useful thought experiment to pursue a more radical logic – what Paul Prinsloo (2019) identifies as “question[ning] the very existence of Learning Analytics” (or, at least, questioning the very existence of the forms of Learning Analytics that are currently being implemented in educational settings around the world).  

In working through this prospect, I want to draw on various recent provocations from within the broader data science community – all data science ‘insiders’ who are voicing informed frustrations over the politically uninterested malaise that they see pervading their field of work. These writers are beginning to argue that it is not good enough for data scientists to presume that technology is essentially neutral, that data is objective, and resort to all-absolving claims of ‘I am just an engineer’. In my view, these insider critiques offer some interesting future directions for educational data science to pursue.

'Is Data Dark? Lessons from Borges’s “Funes the Memorius”' by Alfred Essain in (2019) 6(3) Journal of Learning Analytics 35–42 comments

In 'Funes the Memorius' Jorge Luis Borges tells the tale of an Argentinian man who falls off a horse, becomes paralyzed, but with his misfortune acquires the strange gift of infinite memory. Funes remembers everything, which is to say he forgets nothing. l will use Borges' story as the backdrop for my response to Professor Selwyn. 

My commentary is in three parts. First, I begin by stating some core areas of agreement, of which there are many. Second, I examine Selwyn’s use of the word “data”. I argue that it perpetuates a number of common misconceptions about statistics and the scientific method. We cannot understand the importance of learning analytics without first clarifying these misconceptions and moving beyond them. In the course of my argument I challenge Selwyn’s central thesis that “Education is inherently social, inherently contextual, inherently subjective; it means you can’t objectively rate it, measure it, indicate it.” Third, I turn the table on Selwyn. As a critic of learning analytics Selwyn suggests that data “disadvantages large numbers of people”. I argue that the root problem in education is the status quo, which Selwyn unwittingly represents, and not learning analytics. If we care about equity in education, as part of a broader interest in social justice, then learning analytics and the use of educational data can be a powerful instrument for empowering the disadvantaged. 'Is Data Dark? Lessons from Borges’s “Funes the Memorius”' by Alfred Essain in (2019) 6(3) Journal of Learning Analytics 35–42 comments

Citizenship Selling

'Millionaire mobility and the sale of citizenship' by Kristin Surak in (2020) Journal of Ethnic and Migration Studies asks

Why do wealthy people purchase citizenship in peripheral countries? This article investigates the demand for citizenship by investment programmes, which enable naturalisation based on a donation or financial investment. Extending research on long-distance naturalisation among the middle class and on residence by investment programmes, I examine the motives of the wealthy using citizenship by investment options. Based on over one hundred interviews with rich naturalisers and intermediaries in the citizenship industry, I find that mobility, both in the present and as a future hedge, is a strong driver, followed by business advantages. Often it is privileges in third countries – not the place granting the citizenship – that are sought. In contrast to middle-class strategic naturalisers, quality of life, education options, and job prospects were not important, though navigating geopolitical barriers and risks were. Many naturalisers were not compensating for the failures of their citizenship at birth, but manoeuvering within a world of state competition. Finally, some individuals inverted the citizenship hierarchy and downgraded from ‘first tier’ memberships when, after years of living abroad, their nationality became a liability. The conclusion elaborates on the duplex structure of intra-state and inter-state inequality that channels demand, and the implications for citizenship more broadly.

Identity

Biometrics as imperialism: age assessments of young asylum seekers in Denmark' by Nanna Dahler in (2020) Race and Class comments

This article explores medical assessments of the age of unaccompanied minors seeking asylum in Denmark, to show how, through the medical and bureaucratic aspects of the process, it serves as an imperialist technology of control, as those judged under 18 have greater protection in the asylum system. Since the biggest group of people who are age-estimated in Denmark are Afghans, the author looks at the relationship between Denmark and Afghanistan and draws on interviews with people who underwent the process. By connecting medical documents with biometric measurement in colonial contexts and the current expansion of biometric surveillance, the author argues that the collection of intrusive physical data from Afghan minors is to be understood as a colonial mapping of the body. The Danish Immigration Service’s age decision-making process articulates a form of administrative rule that works to depoliticise questions of dispossession and death, and is a form of colonial violence enabled by humanitarian discourse and law.

Publics

'Shared Histories: The Feminist and Gay Liberation Movements for Freedom in Public' by Elizabeth Sepper and Deborah Dinner in (2020) 54 University of Richmond Law Review 759 comments

This Symposium on the fiftieth anniversary of the Stonewall Rebellion presents the opportunity to evaluate the regulation and deregulation of gender and sexuality in public space. In 1969, LGBTQ people erupted against policing, harassment, and exclusion in public spaces. That same year, the growing feminist movement also launched protests for women's equality in public accommodations. 

Our essay analyzes two case studies, from New Jersey in the late 1960s and California in the mid-1980s, to show what we might learn by integrating the histories of LGBTQ and feminist public accommodations activism. These case studies offer two lessons. First, the regulation of cisgender women and LGBTQ people stemmed from common sources of both law and custom. Public authorities and private businesses limited the access of unescorted heterosexual women, gay people, and gender nonconformists to public accommodations and surveilled their gathering in public space. For each of these groups, such policing was justified by fears of sexuality perceived to threaten the hetero-patriarchal family. Second, feminist and LGBTQ people's respective fights for equality in public reinforced one another. Before 1969, no city, state, or federal law prohibited sex, sexual orientation, or gender identity discrimination in public accommodations. Beginning in the 1960s, the LGBTQ and feminist movements pursued court battles and legal reforms. They ensured that liquor licensing no longer targeted cisgender women and LGBTQ people. Over the course of the 1970s and ‘80s, virtually all states came to adopt public accommodations laws prohibiting sex discrimination, and cities and states slowly began to explicitly include sexual orientation as well. Feminist and LGBTQ legal victories evolved in an interdependent rather than isolated manner.

Dirigisme

'From Industrial Policy to National Industrial Strategy: An Emerging Global Phenomenon' by Thomas A. Hemphill in (2020) Bulletin of Science, Technology and Society comments

In February 2019, the German federal government announced its new “National Industry Strategy 2030.” Many economies — including the United Kingdom (2017), European Union (2017), and Saudi Arabia (2018) — have announced national industrial strategies addressing the competitive threat of the People’s Republic of China’s 2015 “Made in China 2025” 5-year economic plan to become a global leader in 10 advanced technology manufacturing sectors. The use of the 20th-century term “industrial policy” heralds back to public policy antecedents of what is now evolving globally in the 21st century as national “industrial strategy,” a concept explored in this article. Unlike traditional 20th-century efforts at industrial policy (which focused on public policy efforts to maintain domestic primacy of declining, older industries), national industrial strategy recognizes (and generally accepts) the international global economy as a foundation of competition. Most importantly, national industrial strategy focuses on technologically emerging industries as well as the national government working collaborative in a partnership with these emerging industries to meet future growth challenges and opportunities