Heirs and Land Acquisition

"Heir Hunting"by David Horton and Reid K Weisbord in (2021) 169 University of Pennsylvania Law Review comments

For more than 150 years, companies called “heir hunters” have operated in the shadows of the court system. Heir hunters monitor probate filings to identify intestate decedents who have missing or unknown relatives. They then perform genealogical research, locate the decedent’s kin, and offer to inform them about their inheritance rights in exchange for a share of the property. States are sharply divided about whether to enforce contracts between heir hunters and heirs. This discord stems from the fact that we know virtually nothing about heir hunting. 

This Article illuminates this mysterious corner of succession law by reporting the results of the first empirical study of heir hunting. Its centerpiece is a hand-collected dataset of 1,349 recent probate matters from San Francisco County, California. Because a unique disclosure norm in California effectively requires heir hunters to file their contracts in the record, the Article is able to analyze a rainbow of issues that would normally be private, such as the scope of the industry, how heir hunters operate, and the context, content, and timing of their agreements.

The Article reaches three main conclusions. First, heir hunting is a booming business. Indeed, the Article unearths 219 agreements between heir hunters and heirs from twenty-seven American states and eleven foreign countries. Second, heir hunting can be socially valuable. Heir hunters sometimes locate long-lost relatives after everyone else has failed. Third, heir hunting is also problematic. For one, the Article’s multivariate regression analysis reveals that cases with heir hunters are especially likely to devolve into litigation. In addition, heir hunters usually pay for the heir’s attorney, thus creating a stark conflict of interest. Finally, heir hunters charge exorbitant fees and routinely contact heirs before the administrator has even tried to locate them. Using these insights, the Article critiques existing approaches to heir hunting and suggests reforms that would enable the legal system to harness the practice’s benefits while limiting its costs.

In Australia the Department of Finance is undertaking a review of the Lands Acquisition Act 1989 (Cth) for recommendations regarding legislative, policy and administrative reforms to the LAA. 

 Changes to the legislation will not be retrospective. Any acquisition processes that commence before legislative changes occur will continue to fall under the existing LAA provisions to ‘provide certainty for claimants, acquiring authorities and other persons involved in an acquisition process’. The Review will be ‘guided by the principles of equity and fairness; timeliness; transparency; and value for money’. 

 The discussion paper for the Review states 

 It is now 30 years since the commencement of the Lands Acquisition Act 1989 (the LAA), the key legislation used by the Commonwealth to acquire and dispose of interests in land. Over time, complex land acquisition processes involving compensation payments to land holders have become more difficult to finalise. The Government has therefore asked for a review of the LAA to look at how it could be improved to best support the Commonwealth and other interest holders into the future. 

Terms of Reference for the Review are

The Government is undertaking a review of the LAA to ensure it: 

a. reflects community expectations around public sector responsiveness and timeliness; 

b. minimises delay and uncertainty in finalising compensation claims with affected parties; and 

c. minimises administrative costs and provides value for money. 

The Review will consider the broad scope of operations and functions under the LAA, including administrative requirements. In doing so, it will consider matters such as, but not limited to: how the LAA can best support acquisition and disposal of land by the Commonwealth for public purposes in a way that is fair and efficient to all parties; whether the LAA legislation and associated guidance can be simplified to make it easier for all parties to understand and apply; and how best to balance the main objectives of the Act with modern public administrative and legal principles. 

The purpose of the LAA is to provide a mechanism for the Commonwealth to acquire land for essential public infrastructure (e.g. roads, Defence facilities and airports), while respecting the rights of interest holders, such as those whose land is being acquired. The LAA sits within the context of Section 51(xxxi) of the Australian Constitution, that states the Commonwealth can make laws with respect to ‘the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has the power to make laws’. 

The LAA provides the Commonwealth with a legislative framework for its property transactions, including to ensure acquisitions occur on just terms. 

The Act also regulates other Commonwealth dealings in land interests including:

a. disposals of land 

b. temporary entry onto land 

c. land situated overseas (e.g. Australian embassies), and 

d. mining on Commonwealth land.

Unlike acquisitions, these are not governed by section 51(xxxi) of the Constitution. 

The Public Governance, Performance and Accountability Act 2013 (Cth) includes rules governing how Commonwealth officials are to use public resources, including those relevant to the acquisition or management of land as a public resource. 

Unless exemptions apply, all Commonwealth agencies that acquire land are subject to the LAA. These ‘acquiring authorities’ include non-corporate and corporate Commonwealth entities. Some corporate Commonwealth entities are alternatively able to deal with land (by agreement, but not by compulsory acquisition) through their own enabling legislation, which gives the entity the ability to acquire and dispose of property including land, similar to that of a natural person. 

The LAA falls under the responsibilities of the Minister for Finance and the Department of Finance (Finance). The Minister has delegated some powers under the LAA to officials within Finance and other acquiring authorities.

Specific questions are 

Q 1. What are your views on the range of land interests and entities covered by the LAA? 

Q 2. How could acquisitions and their administration be reformed to encourage acquisition by agreement and improve the experience for interest holders? 

Q 3. What changes could be made to reduce the time to resolve compensation claims? You might like to consider which party should start the process, whether timeframes should apply and the use of face to face meetings and mediation. 

Q 4. What changes could be made to the types of compensation to ensure expenditure of public money represents value for money? You might like to consider time limits and caps in your response. 

Q 5. How could the LAA review processes and reconsideration avenues be changed to encourage early resolution? 

Q 6. What changes could be made to the CPDP to support better land use management and/or administrative practices? You might like to consider off-market sales and land swaps in your response. 

Q 7. Is the concept of ‘public purpose’ sufficiently clear? If not, how could it be improved? 

Q 8. Are any changes required to the LAA provisions dealing with acquisitions and disposals of overseas land? 

Q 9. Are any changes to the LAA and/or CPDP needed in the context of negotiating ILUAs? 

Q 10. Are the current arrangements for mining on Commonwealth land sufficient and appropriate? Is there a need for national uniformity? 

Q 11. How can the ‘disposal’ power under the LAA be flexible enough to manage future policy priorities? 

Q 12. Should amendments be made to the LAA to support future joint projects between the Commonwealth and states and territories?

Gigs

'Sceptics or supporters? Consumers’ views of work in the gig economy' by Joshua Healy, Andreas Pekarek and Ariadne Vrome in (2020) 35(1) New Technology, Work and Employment comments

Labour-management practices and workers’ experiences in the gig economy are topics of major interest for researchers, regulators and the general public. Platform companies project a vision of gig workers as autonomous freelancers, but pervasive features of their own labour practices, along with workers’ traits, create new vulnerabilities and risks. Efforts to improve gig workers’ conditions to date have made inroads without achieving a general shift in platforms’ practices or gig workers’ conditions. In this paper, we explore how another, less-recognised stakeholder group—consumers—shapes the conditions of gig work. Drawing on Australian public opinion data, we study consumers’ views of the gig economy and ask whether these will help or hinder pro-worker campaigns. While consumers are sympathetic to gig workers’ financial plight, they also see benefits in the work’s flexibility and opportunities for jobseekers. We explain how our findings can inform advocacy campaigns and further gig economy research.

The authors state

The proliferation of new and increasingly diverse digital labour platforms is one of the major economic developments of recent years. By enabling consumers to find and transact with many producers at lower cost, platforms have given rise to an ‘on-demand’ or ‘gig’ economy that is increasingly important in both physical (e.g. food delivery) and online (e.g. data entry) markets (De Stefano, 2016; Howcroft and Bergvall-Kåreborn, 2019; Kuhn and Galloway, 2019; Wood et al., 2019). The leading platforms—Uber, Deliveroo, and many others—are global brands that are quickly becoming corporate titans (Conger and de la Merced, 2019). As labour market intermediaries, platforms account for 1–3 per cent of all paid work in advanced economies and this share is ‘growing fast’ (Schwellnus et al., 2019: 8). 

Various economic benefits have been ascribed to this burgeoning platform economy, mainly due to improved consumer choice and convenience (Minifie and Wiltshire, 2016; Pasquale, 2016). Assessments of platforms’ impact on working conditions, however, are often more critical. In contrast to a prevailing company rhetoric of choice and entrepreneurship (Roberts and Zietsma, 2018; Ravenelle, 2019), gig work is seen as insecure and exploitative by many labour and organisational scholars (Stanford, 2017; Van Doorn, 2017; Aroles et al., 2019). Flexibility for workers is constrained, in practice, by performance surveillance and intense competition for the best-paid tasks (Scheiber, 2017; Lehdonvirta, 2018; Goods et al., 2019). 

Debates about how to protect and advance working conditions in the gig economy are fractious. Worker-led campaigns seek improvements via an array of new and old organising techniques, but platforms vigorously resist attempts to redefine their responsibilities as employers. Some platforms have modified their labour practices at the edges in the face of pressure from workers and/or regulators—such as by recommending (but not requiring) minimum wage compliance, or facilitating workers’ access to private insurance—but these concessions are overshadowed by a larger ‘reclassification risk’ to platforms’ business model (AlphaBeta, 2019). That is, the possibility that gig workers currently treated as contractors will be deemed by regulators to be de facto employees, with correspondingly greater entitlements (Cherry and Aloisi, 2017). 

Legal determinations about this vexing classification issue, to date, are mixed; no universal or consistent precedent has emerged. The future of the gig economy thus remains unpredictable, with labour advocates and platforms often at odds over its benefits and drawbacks. Meanwhile, many governments are moving cautiously in deciding how, or if, to impose new regulations on platforms. There are marked cross-national differences, for instance, in how governments have responded to Uber’s market entry (Thelen, 2018). 

Along with workers and governments, consumers are another critical stakeholder group in the gig economy, although their influence has until recently attracted less academic interest. Thelen and colleagues have argued that platform companies seek to acquire a new form of power, by cultivating the loyalty and, occasionally, more active support, of consumers for whom platform services constitute ‘part of the infrastructure of their lives’ (Culpepper and Thelen, 2019: 8). If successfully nurtured, these bonds of consumer dependency give platforms significant leverage in political and regulatory processes, allowing them to portray critics as hostile to ‘consumer choice’ (Rahman and Thelen, 2019). However, because people have multiple identities that are cued by different issues—not only as consumers but also as citizens, taxpayers, co-workers and so on—public support for platforms is neither inevitable nor unconditional (Thelen, 2018). 

To understand whether consumers will become, and remain, platforms’ sceptics or supporters, we need more finely grained evidence about their views. We contribute to this endeavour, by exploring consumers’ views about one of the most contested issues in platform capitalism: gig work. We argue that consumers’ support for change or, conversely, their tolerance for the status quo is an important and understudied factor influencing how gig work develops. Prior research in different contexts suggests that, while consumers may support labour-rights campaigns for ethical reasons, they can also be mobilised against such actions, if these are seen to unfairly limit choice and convenience. The gig economy is arguably the most important arena in which these tensions over consumer choice, working conditions and business ethics are playing out. 

In this paper, we present detailed empirical evidence about consumers’ engagement with and views about work in a key section of the gig economy, drawing on a unique Australian public opinion data set. We focus on locally delivered gig work, as distinct from its remote and online varieties (Wood et al., 2019). Our approach is exploratory, rather than hypothesis-driven, given the novelty of our study aims. We seek to answer one central research question: Are consumers’ views likely to help or hinder efforts to advance working conditions in the gig economy? 

As a foundation for our analysis, we draw from and link two disparate strands of research, which are canvassed in the next two sections: one on platforms’ labour practices and gig work; the other on consumers and ‘ethical consumption’.

Biometrics

There has been an outbreak of common sense in Scotland, alas not in Australia where governments and solutions providers are still snorting facial biometric pixie dust. The Scottish legislature's Justice Sub-Committee on Policing  comments

The introduction of live facial recognition to policing in the UK is a relatively new phenomenon.

Police Scotland has an ambition, outlined in its 10-year strategy, to introduce its use by 2026. Its assessment of the likely equalities and human rights impact as “likely to be positive in nature” is in stark contrast to the evidence received by the Justice Sub-Committee on Policing.

The live facial recognition software which is currently available to the police service is known to discriminate against females, and those from black, Asian and ethnic minority communities.

For this reason, the Sub-Committee believes that there would be no justifiable basis for Police Scotland to invest in this technology.

We therefore welcome confirmation from Police Scotland that they have no intention to introduce it at this time.

Prior to any decision to introduce live facial recognition technology to policing in Scotland, it is essential that a robust and transparent assessment of its necessity and accuracy is undertaken, and that the potential impacts on people and communities are understood.

The use of live facial recognition technology would be a radical departure from Police Scotland’s fundamental principle of policing by consent.

Police Scotland need to demonstrate that its use of this technology is provided for in legislation and meets human rights and data protection requirements.

This short inquiry has highlighted the pressing need for a much wider debate on the use of live facial recognition technology by the police service, as well as more widely across the public sector, and by private companies. Politicians could play a key role in determining whether there is public consent for the use of this technology.

The Sub-Committee hopes that this inquiry has gone some way to begin that debate, and that the Scottish Government will take up the challenge.

Police Scotland currently use retrospective facial recognition technology. Its procedures and practices would benefit from a review by the Scottish Police Authority and any incoming Scottish Biometrics Commissioner.

In particular, consideration of the risks and legal implications of Police Scotland accessing and using any images held illegally on the UK Police National Database of people who have not been convicted of any crime.

The same concerns arise from Police Scotland’s ability to access and use images of people who have not been convicted of any crime, but which are retained on the legacy IT systems they inherited from the former Scottish police forces.

The Sub-Committee believes that the police must have all necessary tools at their disposal to combat crime and keep communities safe.

New technologies have the potential to assist Police Scotland in detecting and solving crimes. However, each new technology must be assessed on its merits, with an honest and transparent discussion of both the benefits and the risks.

The Sub-Committee warmly welcomes Police Scotland’s intention to introduce the use of ethics panels to consult with relevant stakeholders to identify and mitigate risks, and to inform its decisions on whether to introduce new technologies.

The Subcommittee's report concludes -

Live facial recognition technology 

Police Scotland does not currently use live facial recognition technology. However, at present plans to introduce facial recognition technology are included in Police Scotland’s 10-year strategy, Policing 2026.

The evidence received by the Sub-Committee during its inquiry indicates that a number of safeguards need to be met, prior to Police Scotland introducing the use of this technology. A key issue to be resolved is the technology’s lack of accuracy.

It is clear that live facial recognition technology is currently not fit for use by Police Scotland. The Sub-Committee believes that there would be no justifiable basis for Police Scotland to invest in technology which is known to have in-built racial and gender bias, and unacceptably high levels of inaccuracy.

The Sub-Committee therefore welcomes Police Scotland’s confirmation that they will not introduce live facial recognition technology at this time. We also welcome their commitment to participate in a wider debate on policy, which will include civil liberties groups and academics, and to ensure that necessary safeguards are in place, prior to making any decision to introduce live facial recognition technology. Wide stakeholder engagement has clearly added value to current plans to deploy cyber kiosks.

However, if Police Scotland does not now intend to introduce live facial recognition technology by 2026, the Scottish Police Authority should update the 10-year strategy to reflect that position, as part of the planned review in 2020.

If Police Scotland does intend to introduce live facial recognition technology at some point in the future, the impact of its use must be fully understood prior to any decision being taken to introduce it to policing in Scotland.

The recent challenges in court to the legality of the use of live facial recognition technology by the police services in England and Wales suggests that there is a lack of public consent for its use, as well as a lack of confidence in the current legal framework being relied upon.

The Sub-Committee recommends that the following actions be taken prior to any decision to introduce live facial recognition technology to policing in Scotland:

• The Policing 2026 strategy should be updated to include details of the type of technology to be introduced, and the necessity and parameters of its use. The strategy’s equality and human rights impact assessment (EqHRIA) should also be reviewed by the Scottish Police Authority to ensure that it is suitably robust.

• The Scottish Police Authority must ensure that comprehensive human rights, equalities, community impact, data protection and security assessments are carried out.

• Similar assessments are also required prior to introducing any other technologies within Policing 2026, especially where there is a risk of collateral intrusion into areas of personal privacy and human rights. Any such assessments should be made publicly available.

• The Cabinet Secretary for Justice must ensure that there is a robust legal and regulatory basis for the use of live facial recognition technology in Scotland. This would provide legitimacy for the police service and assurance for the public.

The Sub-Committee requests clarification of the Government's plans, and whether this would include a consultation on public consent for the use of this technology. 

The Scottish Police Authority must review the legal challenges to the use of live facial recognition technology by police forces in England and Wales, and consider how to mitigate the risk of similar legal challenges in Scotland.

The Sub-Committee has not received sufficient evidence of the necessity to introduce live facial recognition technology, or that it is possible to use it in a proportionate way. Its use on people who attend legitimate and legal pursuits, such as peaceful protests, concerts or sporting events, is not necessary or proportionate. 

The Scottish Police Authority should assess the necessity, proportionality and parameters of its use. Police Scotland needs to demonstrate that there is public consent for the use of live facial recognition technology before introducing it, as a lack of public consent risks undermining the legitimacy of the technology and potentially, public confidence in policing. It could also represent a failure to meet the principles set out in the Police and Fire Reform (Scotland) Act 2012.

Any consultation on the introduction of the use of live facial recognition technology must take into consideration its potential impact on human behaviour and the relationship between the public and the police.

Police Scotland and the Scottish Police Authority must clarify how they will ensure that data protection requirements will be met for the use of live facial recognition technology. This should include confirmation of whether a data protection impact assessment detailing the risks and how these are to be mitigated would be a necessary requirement.

The Scottish Police Authority should take account of the UK Biometrics and Forensics Ethics Group's framework of ethical principles when considering Police Scotland’s proposal to introduce the use of live facial recognition technology.

To provide public confidence, any incoming Scottish Biometrics Commissioner should consider any future plans by Police Scotland to introduce the use of live facial recognition technology prior to a decision being taken by the Scottish Police Authority to approve its introduction.

Retrospective facial recognition technology

Police Scotland currently use retrospective facial recognition technology, which includes facial search and match processes.

The Sub-Committee heard concerns about the legal basis for Police Scotland’s use of retrospective facial technology, and whether their processes meet human rights and data protection requirements.

The lack of legislation enabling Police Scotland to retain and use photographic images held on its IT systems is an issue which must be addressed.

Police Scotland’s retention and use of images of innocent people held on its legacy IT systems and on the UK Police National Database, is another issue which must be addressed.

This practice infringes the human rights of those whose images are retained and represents an ongoing risk of both legal challenge and reputational damage to Police Scotland.

The Sub-Committee is concerned about the lack of regulation and transparency over the use of facial recognition technology by private companies and in the wider public sector, and their practice of sharing the data they collect with the police service. If the Scottish Biometrics Commissioner is not to have any formal oversight of the private sector or wider public sector, they will not be held to the same standard as the police service.

The Sub-Committee recommends that the following actions be taken to address concerns about Police Scotland’s use of retrospective facial recognition technology: The Scottish Government should confirm whether it will legislate to enable Police Scotland to take, retain, use and share photographic images. 

The Scottish Government should address the lack of regulation over the use of facial recognition technology by private companies, and by the wider public sector, and the data they share with the police service. Police Scotland should to provide details of its plans, including the timescale, for deleting images of innocent people retained on legacy databases. 

The Scottish Police Authority should carry out a review of Police Scotland’s use of retrospective facial recognition technology. This should include their use of the UK Police National Database and the legal basis for uploading photographs to that database. It should also include consideration of the consequences of their access to and use of any images of innocent people held illegally on that Database. 

The review should take a human rights-based approach to this assessment. 

During its inquiry, the Sub-Committee considered Glasgow City Council’s plans to introduce ‘Suspect Search’ software into its public space CCTV system, and to provide Police Scotland with access to the data it collects and creates. Glasgow City Council confirmed in their written evidence that the software is not based on facial recognition, but on characteristics, such as full body image. They also confirmed that it has a tracking functionality, which is described as “quasi-real time”, to reflect the time delay in tracking an individual. The software has not yet been introduced, as the UK Information Commissioner’s Office is currently considering the data protection impact assessment. 

The Sub-Committee is to write to the ICO to request an update on its consideration, and to Glasgow City Council to request further details of its plans.

The Sub-Committee asks the Scottish Police Authority to review Police Scotland’s plans to access and use Glasgow City Council’s Suspect Search technology. This should include consideration of whether all the necessary impact assessments have been undertaken and safeguards met.

Robot Persons

'Recognising rights for robots: Can we? Will we? Should we?' by Belinda Bennett and Angela Daly in (2020) Law, Innovation and Technology comments

This article considers the law’s response to the emergence of robots and artificial intelligence (AI), and whether they should be considered as legal persons and accordingly the bearers of legal rights. We analyse the regulatory issues raised by robot rights through three questions: (i) could robots be granted rights? (ii) will robots be granted rights? and (iii) should robots be granted rights? On the question of whether we can recognise robot rights we examine how the law has treated different categories of legal persons and non-persons historically, finding that the concept of legal personhood is fluid and so arguably could be extended to include robots. However, as can be seen from the current debate in Intellectual Property (IP) law, AI and robots have not been recognised as the bearers of IP rights despite their ability to create and innovate, suggesting that the answer to the question of whether we will grant rights to robots is less certain. Finally, whether we should recognise rights for robots will depend on the intended purpose of regulatory reform.

The authors argue

&The question of whether machines can think is not new, having been posited prominently by Turing in the 1950s. However the increasing sophistication of machines with developments in artificial intelligence (‘AI’) and robotics is raising new questions about the role for law in regulating these technologies. Responding to these developments, in 2017 the European Parliament passed a Resolution, calling on the European Commission to develop civil law rules on robotics and artificial intelligence. In a wide-ranging set of recommendations which included calls for ‘a common European definition for smart autonomous robots’, and for introduction of ‘a comprehensive Union system of registration of advanced robots’, the Parliament proposed a Charter on Robotics. The Resolution called on the Commission, ‘to explore, analyse and consider the implications of’ inter alia:

creating a specific legal status for robots in the long run, so that at least the most sophisticated autonomous robots could be established as having the status of electronic persons responsible for making good any damage they may cause, and possibly applying electronic personality to cases where robots make autonomous decisions or otherwise interact with third parties independently.

The European Parliament’s proposal led to considerable debate, including an open letter from experts to the European Commission arguing against recognising electronic personhood for robots. The European Parliament’s suggestion, that the increasing sophistication of robots raises questions about their appropriate legal status, arises against a backdrop of a growing debate about robots and rights which highlights the complexities of our current conceptualisations of rights, revealing the tensions between different categories and understandings of what it means to be human. With Saudi Arabia granting citizenship to a ‘female’ robot, and Japan granting residency rights to a ‘boy’ chatbot, this issue is far from a mere academic or theoretical inquiry.

Although robots and AI are often discussed in tandem, it is important to recognise the distinction between them. The term ‘robot’, coming from a Czech language term for ‘serf labour’, dates back to a Czech play from the 1920s and usually refers to a physical entity, often with humanoid-type characteristics. Increasingly robots are used to provide assistance or companionship. In contrast, artificial intelligence (AI) is associated with machine learning. As a 2016 report by the UK’s House of Commons Science and Technology Committee explained:

Robots can (and, for the most part, do) operate without possessing any artificial intelligence. It is anticipated, however, that this will gradually change over time, with robots becoming the ‘hardware’ that use, for example, machine learning algorithms to perform a manual or cognitive task. AI and robotics will, therefore, have an important degree of interdependency. Although it is difficult to anticipate precisely how these technologies will develop from our current capabilities, it is clear that they are likely to have a transformative effect on society. It is against this backdrop that we seek to analyse the legal challenges associated with articulating the nature of both rights and responsibilities associated with robotics and AI. In addressing these challenges we seek to analyse robot rights through three questions: (i) could robots be granted rights? (ii) will robots be granted rights? and (iii) should robots be granted rights?

In Part 2 we analyse the question of whether robots could be granted rights. In answering this question we assess categories of personhood in the common law tradition where human beings have either not been recognised as people, or not recognised as entitled to full human rights. We also examine those categories where legal personality is attached to non-human entities. As we argue in Part 2, the categories of legal personality are sufficiently flexible to allow for recognition of robots’ rights. We explore the possibilities for categorising robots and AI according to their capabilities and level of sophistication, and consider the possibility of some advanced robots being categorised as legal persons. In Part 3 we consider whether robots will be granted rights. We use the example of intellectual property (IP) rights for robot-created works to analyse the discussion in that area of law concerning rights being ascribed to robots and AI given robots and AI’s incursions into creativity and inventiveness. Finally, in Part 4 we consider whether robots should be granted rights. In considering this question we analyse Roger Brownsword’s work which argues that the way in which questions about new technologies are answered may depend on our conceptual starting point in terms of how we conceptualise new technology and our regulatory responses to it.

Wage Theft

The Wage Theft Bill 2020 (Vic) is discussed in a public consultation paper offering an overview of the proposed design of the offence and enforcement regime.

 The state Government intends that the  Bill will create three wage theft offences and establish the Wage Inspectorate Victoria. Wage theft offences will not apply retrospectively and the offences will only apply to an employment relationship. Importantly, ‘Employment’ will not be defined so that the common law approach applies, whereby the courts consider each case against a list of factors indicative of an employment relationship. The expectation is that the new offence will capture a broader range of cases including those involving sham contracting and employment relationships disguised as internships or vocational training.

The paper states

Liability 

The Government intends that offences will apply to all organisations that have capacity to employ including government departments, corporations, partnerships and unincorporated associations. 

Corporate liability 

The Government intends that the Bill will pierce the corporate veil using an attribution model of liability and will permit the conduct engaged in by an officer or the directors of a body corporate to be attributed to the body corporate where it is appropriate to do so. ‘Officers’ will be defined similarly to the Corporations Act 2001 (Cth) definition, to enable prosecution of directors and secretaries of companies. This will also enable prosecution of persons who make decisions affecting the whole or a substantial part of the business and/or a corporation’s financial standing. 

The Bill will stipulate that the conduct of an associate or agent of the employer can be attributed to an ‘officer’, director or employer when the conduct of that associate or agent is explicitly or implicitly authorised and within the actual or apparent scope of their employment. The Bill will provide that implicit authorisation can be established by the existence of a corporate culture within the body corporate that directs, encourages, tolerates or leads to the relevant conduct being carried on. If the body corporate is liable, criminal liability may also be attributed to corporate decision makers unless the officer is able to demonstrate that they took reasonable precautions and exercised due diligence to prevent the conduct. This attribution model and the consideration of a corporate culture will serve as a significant deterrent and is anticipated to lead to behavioural change. 

Complicity 

The Government intends that Part II, Division 1, (1) of the Crimes Act 1958 (Vic) will apply to the wage theft offences. This will enable prosecution of third parties that are complicit in the offending including third parties who ‘intentionally assist’ in the offending. This may include: • head franchisors who ‘encourage’ franchisees to engage in wage theft to assist their business viability; and • businesses involved in supply chain contracting, who intentionally contract at a price for services that they know will involve the commission of the wage theft offence. The Bill will exclude persons who are not officers acting under the direction of an employer from being captured by the complicity provisions. 

Jurisdiction 

The Government intends that the Bill will provide that the offences apply to employers regardless of whether the services are performed in more than one Australian jurisdiction or partly outside Australia. The nexus between Victoria and the services performed will enable this when: • the employee or employer is based in Victoria; or • the entitlements are paid or attributable within Victoria; or • the services are mainly performed in Victoria. 

Key Concepts 

The offences will be crafted to ensure those who dishonestly engage in underpayment of employee entitlements and authorise such conduct will be held responsible. 

The Government intends that the offences will not be strict liability offences. Rather, the offences will be directed at addressing criminal conduct and will therefore require that the specified mental element and conduct be proven beyond reasonable doubt. The Bill will create new specialised definitions that will enable the particulars of this kind of offending to be captured by the criminal law when an employer is acting dishonestly. 

Dishonesty 

Each offence will require consideration of whether the accused acted ‘dishonestly’. A new and distinct definition of ‘dishonesty’ will be a central feature of the Bill. 

This specialised term will depart from the common law meaning of ‘dishonesty' as is typically applied to the general theft offence in Victoria. The general approach to theft requires consideration of whether the accused acted without a belief in a legal right to obtain the property acquired. The dishonesty of the accused is determined by subjective consideration of their state of mind. More specifically, the court will consider whether the accused believed that they had a legal right to take the property and deprive the other person of it. The existing formulation is insufficient for determining culpability for wage theft as it does not allow proper consideration of the surrounding circumstances, including whether the belief of the accused was reasonable or an expression of wilful blindness. 

‘Dishonesty’ for the purposes of the new wage theft offence will mean dishonest to the standards of a reasonable person. An employee’s consent to the withholding of an entitlement will be irrelevant to determining the accused’s dishonesty. This new definition will therefore import an objective standard tailored to the very specific conduct the wage theft laws intend to deter. Specifically, these laws will not tolerate widespread and disingenuous claims that the deliberate withholding of entitlements amounted to a “mere mistake” where there is substantial evidence indicating that the employer in question did know —or should have known—what the correct legal entitlements payable were. 

Entitlements 

‘Employee entitlement’ will be specially defined to include any amount payable by an employer to an employee in accordance with the relevant laws, contracts or agreements. This may include wages, allowances, gratuities, superannuation and other accruals such as leave. 

Employee entitlement record 

The Wage Theft Bill 2020 will contain two record keeping offences that recognise the fact that wage theft is both concealed and propagated by fraudulent record keeping. In concert with the definition of ‘entitlement’ an ‘employee entitlement record’ will include any record of an employee entitlement required to be kept at law. 

The offences 

Theft of employee entitlements 

The Government intends that the new ‘theft of employee entitlements’ offence is the primary offence. It will criminalise the conduct of an employer who ‘dishonestly’ withholds entitlements, such as wages, from an employee. The offence is not intended to capture employers that make genuine mistakes. However, it will capture those that fail to undertake reasonable action when they suspect or are alerted to a mistake in respect of the payment or attribution of employee entitlements. Importantly, the offence will stipulate a conduct element that can be attributed to employers and officers. For example, where a payroll officer is acting under the implicit or explicit direction of the company, their conduct can be attributed to the company for the purposes of the offence. 

Penalty: Individuals who commit this offence will face fines of up to $198,264 and up to 10 years in jail. Companies will face fines of up to $991,320. 

Falsification of an employee record 

It is common for employers engaging in wage theft to falsify employee entitlement records as a means of either carrying out their wage theft or covering up their wage theft. The Government intends that the falsification offence will include producing, making or copying a record that is misleading, false or deceptive. It will also include the alteration of a record or the provision of information that causes the record to be misleading or false. The prosecution will be required to prove the falsification was done dishonestly with a view to obtaining a financial advantage or preventing a financial advantage from being exposed. The definition of falsify will not capture people who accidentally mis-record details and rectify payroll errors in an appropriate and honest manner. 

Penalty: Individuals who commit this offence will face fines of up to $198,264 and up to 10 years in jail. Companies will face fines of up to $991,320. 

Failure to keep employee entitlements offence 

The ‘failure to keep an employee entitlement record’ offence will hold employers who dishonestly fail to keep employment records criminally liable if their failure is accompanied by an intention to gain a financial advantage or prevent a financial advantage from being exposed. This offence will cover circumstances where partial records are kept if this has been done with the intention to gain a financial advantage or prevent exposure. 

The offence will be drafted to ensure that where the failure to keep an employee entitlement record is either expressly or implicitly authorised, the conduct can be attributed to the relevant body corporate, director(s) and ‘officer(s)’. The offence will stipulate that the existence of a corporate culture that directs, encourages or tolerates the relevant conduct will amount to implicit authorisation attributable to the relevant body corporate, director(s) or ‘officer(s)’. This construction of the offence recognises that an employer’s failure to keep a record may not be to gain a direct financial advantage, but to obscure a financial advantage being gained by another person. The offence will not capture employers who fail to keep a record because of an oversight. 

Penalty: Individuals who commit this offence will face fines of up to $198,264 and up to 10 years in jail. Companies will face fines of up to $991,320. 

Defences 

The offences will not capture employers who have done their best to comply with the law. The Government intends to be very clear that these employers will not be punished for unwitting errors. As such, a due diligence defence and, in circumstances where the officer may not have been directly involved in the offence, a reasonable measures defence, will be included in the Bill. The due diligence defence will apply to the theft of employee entitlements offence and extend to ‘officers’, directors, corporations, partnerships and unincorporated associations. 

The defence will specify that where the employer has undertaken all reasonable steps to pay or attribute employee entitlements within a reasonable time the offence will not be made out. Employers must demonstrate proper business practices and attempts to comply with the law. What is ‘reasonable’ for a company will depend on the circumstances and evidence in each investigation. The Bill will stipulate the employer bears the legal burden of proving the defence on the balance of probabilities. 

Enforcement 

The Government intends to establish Wage Inspectorate Victoria (the Inspectorate) under the proposed Bill with responsibility for investigating and prosecuting the new wage theft offences. The Inspectorate will be established as a statutory body corporate and defined as a public entity for the purposes of the Public Administration Act 2004. 

Governance 

The Inspectorate will be provided with powers and functions related to the enforcement and prosecution of the offences created by the Wage Theft Bill 2020, as well as information and evidence gathering powers necessary to support the investigation of potential offences. 

Commissioner and staff of the Wage Inspectorate Victoria 

The Government intends for there to be a Commissioner of the Inspectorate appointed by the Governor in Council on the recommendation of the Minister for Industrial Relations. All functions and powers of the Inspectorate will be vested in the Commissioner, as well as the ordinary powers, duties, responsibilities and day to day management and governance functions. These functions and powers are set out in detail later in this Paper. The Commissioner will be responsible for undertaking the strategic leadership of the Inspectorate for the purpose of achieving the objects of the Wage Theft Act. The Commissioner will act fairly, impartially, independently and act in the public interest. The Government intends that the Inspectorate will also incorporate current functions and powers with respect to the Child Employment Act 2003, the Long Service Leave Act 2018 and the Owner Drivers and Forestry Contractors Act 2005. 

The role of the Minister for Industrial Relations 

The Government intends to provide the Minister for Industrial Relations with the authority to give written directions (of a general nature only) to the Commissioner about the performance of their functions. Investigative and prosecutorial functions of the Inspectorate will be independent and not subject to Ministerial direction or control. Confidentiality and disclosure obligations of Commissioner, staff and inspectors The Government intends to provide confidentiality provisions and restrictions on the disclosure of information obtained in the course of administering the Act. 

Enforcement Model 

The Government intends that the enforcement model will include the necessary powers to enable the Inspectorate to inquire into and investigate wage theft offences, including the power to bring criminal proceedings. The Inspectorate may also have functions to provide information and assistance to persons seeking to recover unpaid entitlements through new streamlined court processes. 

Appointment of wage theft inspectors 

The Government intends to provide for the appointment of wage theft inspectors with investigative power conferred upon them within the Wage Theft Act. Wage theft inspectors will also become ‘investigating officials’ under Part III of the Crimes Act 1958 by virtue of their investigative role, although it is not intended to rely on these powers to investigate and enforce wage theft offences. 

Powers of the Inspectorate 

The Government intends that the Commissioner will be the head of the Inspectorate. It is intended that the Inspectorate have the following powers: • all functions and powers of a wage theft inspector, including but not limited to: – the power to enter premises (including with a warrant) – the power to obtain information and documents – the power to seize evidence – the power to bring criminal proceedings • the power to apply for and execute search warrants • the power to enter into agreements and contracts • to power to accept undertakings, and enforce against any undertaking which may have been breached • the power to recover costs (and pay any costs in the event that they are awarded against the Inspectorate); and • the power to do all things necessary or convenient to be done for or in connection with the performance of its functions, achieving objectives, etc. 

Inspector powers 

The Government intends to provide that the purposes for which powers of inspectors may be exercised include inquiring into or investigating an alleged wage theft offence or verifying information received in relation to a wage theft complaint. It is intended that inspectors will have the power to compulsorily examine on oath, with appropriate safeguards and protections for individuals. 

Power to enter premises 

The Government intends to provide inspectors with a power to enter premises, at a reasonable time, for the purpose of inquiring into an alleged wage theft offence. Inspectors must hold a reasonable belief that there are documents, persons or other things at the premises that are relevant to the suspected offence in order to exercise this power and may enter either by consent or through the service of a written notice. It is intended to be an offence to fail to comply with the entry notice without a reasonable excuse and a statement to this effect must be provided as part of the notice. 

The Government intends that an inspector who exercises a power of entry has the following powers: • conduct inquiries into suspected or alleged wage theft offences; • inspect or examine anything (including a document) at the premises; • seize anything (including a document) at the premises that may afford evidence of the commission of an offence against the Act if the inspector reasonably suspects that the document or thing may be concealed or destroyed, or its forensic value diminished if not seized; • inspect, and make copies of or take extracts from, any document produced; • take photographs and document observations; and • exercise any other power conferred on the inspector by the Act. 

Power to require production of documents and answer questions 

The Government intends to provide a power for an inspector who enters premises to require production of documents or part of a document, examine that document or part, and require a person at the place to answer any questions put by the inspector. It is intended to be an offence for a person to, without reasonable excuse, refuse or fail to comply with this requirement. 

Search warrants 

The Government intends to provide inspectors with the power to apply for and obtain a search warrant in order to seize evidence in circumstances where the evidence is unable to be obtained using ordinary investigative powers. It is intended that the rules that apply for search warrants in the Magistrates Court Act 1989 apply to search warrants under the Wage Theft Act and that search warrants be issued in accordance with the Magistrates Court Act and in the prescribed form under that Act. 

Power to obtain information, documents or attendance 

The Government intends that the Inspectorate be provided with a general power to obtain information or evidence for the purpose of ascertaining whether an offence has been committed or investigating a suspected contravention. This power can be exercised by serving a written notice requiring the recipient to: • provide the Inspectorate any relevant information before a specified time and in a specified manner; • produce to the Inspectorate any relevant document or thing in the person’s possession, custody or control a specified time and in a specified manner; and • attend and give evidence or answer any relevant questions on oath or affirmation before the Inspectorate at a specified time. 

It is intended that the power to compel attendance and compulsorily answer questions only be used if the Inspectorate is unable to obtain the information by consent or through the exercise of other powers. 

It will be an offence for a person who is given a written notice requiring attendance, without reasonable excuse, to refuse or fail to: (a) take an oath or make an affirmation when required to do so; or (b) answer a question that the person is required to answer by the Inspectorate. The penalty for this offence is intended to be 240 penalty units or imprisonment for 2 years. 

Power to accept undertakings 

The Government intends that the Inspectorate will have the power to accept undertakings from an employer in relation to an alleged contravention of a relevant offence. The primary purpose of the undertakings is to prevent future contraventions of the relevant offence. The undertakings will not be used to recover employee entitlements or seek similar remedies. It is intended to be an offence to fail to comply with an undertaking and the Inspectorate can apply to the Magistrates’ Court for an order enforcing the undertaking. 

Criminal prosecution of the wage theft offences 

The Government intends that the Inspectorate will be responsible for bringing criminal proceedings for the new wage theft offences. The decision to bring criminal proceedings will lie with the Commissioner following an assessment of the evidence and a determination that there is a reasonable prospect of conviction and it is in the public interest. 

Criminal offences relevant to the exercise of the Inspectorate’s powers 

It is intended that when exercising powers or imposing a requirement upon a person, the inspector must show their identity card to the person and advise the person of their obligation to comply with the requirement, and that failure to do so will be an offence. 

To the extent considered necessary to ensure that the inspectors exercise their powers and perform their functions in accordance with the Act, the Government intends to include the following relevant offences: • intentionally hindering or obstructing an inspector in exercising his or her powers or inducing or attempting to induce any other person to do so • intentionally hindering or obstructing a person assisting an inspector • impersonating an inspector • assaulting, threatening or intimidating an inspector or attempting to assault, threaten or intimidate an inspector • assaulting, threatening or intimidating a person assisting an inspector or attempting to assault, threaten or intimidate a person assisting an inspector • failing to produce documents when required, permit entry to premises or otherwise comply with a requirement of an inspector made in the exercise of a power under the Act; and • giving information or producing a document to an inspector that a person knows to be false or misleading in a material particular. 

These offences are intended to have a penalty of 60 penalty units, with the exception of the assault offences which should attract a maximum penalty of 2 years’ imprisonment or 240 penalty units or both for natural persons. Consistent with the approach taken in relation to the wage theft offences, it is intended that bodies corporate will be liable for five times the penalty units of those imposed on natural persons. 

Referrals to other Regulators 

The Government intends for the Inspectorate to be able to refer wage theft matters to other agencies in appropriate circumstances and receive referrals from relevant agencies. It is intended that there be information sharing powers to enable the Inspectorate to work collaboratively with other agencies.

Fertility and Donor Linking

'The Donor-Linking Practices of Australian Fertility Clinics' by Fiona Kelly, Deborah Dempsey and Charlotte Frew   in (2019)  27 Journal of Law and Medicine  355 comments

  While Australia is a world leader in providing statutory donor-linking services – the practice whereby individuals connected through donor conception seek access to information about each other – there has been only limited exploration of how fertility clinics respond when approached with donor-linking requests. This article reports on 19 qualitative interviews conducted with Australian fertility clinic staff that explored how clinics manage requests to share identifying and non-identifying information about parties involved in donor conception. Our findings indicate that fertility clinics have experienced an increase in donor-linking requests in recent years, but that they are typically dealt with on an ad hoc basis. Two approaches to donor linking were identified: (1) an "active" approach where clinics supported donor linking and were willing to engage in outreach to see if the other party was open to information exchange; and (2) a "passive" approach whereby clinics were reluctant to facilitate linking and were unwilling to outreach to other parties. The variety of responses to donor-linking requests highlight the ways in which donor-conceived adults, parents and donors can have dramatically different access to information, depending on the clinic that provided treatment.

The authors state

Donor linking is the practice whereby individuals connected through donor conception – donor-conceived children and adults, recipient parents and donors – seek access to identifying and non-identifying information about each other. It can be achieved through statutory registers (where they exist and the applicant meets certain eligibility requirements), inquiries made to fertility clinics or sperm banks, direct-to-consumer DNA testing, non-statutory online voluntary registers, or social media searches using information contained in a donor profile. While it is difficult to gauge exactly how many people are participating in donor linking, the advent of linking legislation in a growing number of jurisdictions and the rise in informal linking as documented in the media, suggest it is increasing in popularity.

While Australia is a world leader in providing statutory donor-linking services to the donor conception community, little is known about how the practice is managed within the fertility industry. In particular, there has been only limited exploration of how fertility clinics respond when approached with donor-linking requests. Given that clinics are often the first place someone might turn when trying to locate donor relatives, particularly in States without donor-linking legislation, knowing what clinics do when donor-linking inquiries are made is important to understanding the complex landscape of donor linking in Australia.

A small body of research has begun to emerge on the use of Australia's statutory donor-linking registers. This literature indicates that use of the registers is growing across all applicant groups (donor-conceived adults, donors and recipient parents). At the same time, it is impossible to know what percentage of eligible applicants apply as we have no record of the total number of donor conception births in Australia, and many donor-conceived people do not know they are donor conceived. Early research also suggests that applications for information frequently lead to face-to-face contact between donor relatives. However, statutory registers are only available in three States and many donor-conceived people do not fall within the ambit of the legislation because they were conceived before it came into force, are not yet old enough to apply, or are not aware of the existence of the registers. In situations where there is no State register, or where the potential applicant does not meet the eligibility criteria, they are likely to turn to the fertility clinic (or treating hospital) when looking for information about donor relatives. Since 2005, the National Health and Medical Research Council, Ethical Guidelines on the Use of Assisted Reproductive Technology in Clinical Practice and Research (the NHMRC Guidelines) have specified that clinics only use donors who agree to disclose identifying information about themselves to any resultant offspring, and clinics have been required to record all relevant information about parties involved in donor conception programs. Where the State has a statutory register, clinics are obliged to provide the information to the register. In States without a register, it is the responsibility of the clinic to maintain the records. Many Australian clinics also have pre-2005 records, though there are some instances of records being lost or destroyed, or difficult to locate or understand. Where pre-2005 records exist, the NHMRC Guidelines require that they be preserved by clinics.

While clinics are the natural starting point for many people looking for information about their donor relatives, little is known about this type of linking. The small body of research that has emerged has focused on the experiences of individuals who have requested information from a clinic. Virtually nothing is known about clinic-based linking from the perspective of clinics. To fill this information gap, we conducted 19 qualitative interviews with fertility clinic staff across seven Australian States and Territories to explore policies, practices and processes regarding the management and sharing of identifying and non-identifying information about parties involved in donor conception. Clinic staff were asked about the frequency and nature of donor-linking requests, how they responded to them, the challenges and impediments to donor linking in the clinic setting, and how they are preparing for donor linking in the future. Our findings indicate that clinics have experienced an increase in donor-linking requests in recent years, but that they are largely dealt with on an ad hoc and often inconsistent basis. Two approaches to donor linking were identified among the clinics: (1) an "active" approach, meaning that clinics were open to facilitating donor linking and were willing to engage in outreach to see if the other party was open to information exchange; and (2) a "passive" approach whereby clinics were reluctant to facilitate linking and were unwilling to outreach to other parties to ask if they were open to contact. The variety of responses by fertility clinic staff to donor-linking requests highlight the ways in which donor-conceived adults, recipient parents or donors can have dramatically different access to information, depending on the clinic that provided treatment.

Machines

The Machine As Author' by Daniel J. Gervais in (2019) 105 Iowa Law Review comments

The use of Artificial Intelligence (AI) machines using deep learning neural networks to create material that facially looks like it should be protected by copyright is growing exponentially. From articles in national news media to music, film, poetry and painting, AI machines create material that has economic value and that competes with productions of human authors. The Article reviews both normative and doctrinal arguments for and against the protection by copyright of literary and artistic productions made by AI machines. The Article finds that the arguments in favor of protection are flawed and unconvincing and that a proper analysis of the history, purpose, and major doctrines of copyright law all lead to the conclusion that productions that do not result from human creative choices belong to the public domain. The Article proposes a test to determine which productions should be protected, including in case of collaboration between human and machine. Finally, the Article applies the proposed test to three specific fact patterns to illustrate its application.