Resources and Rights

'Indigenous Peoples’ Rights in Equitable Benefit-Sharing Over Genetic Resources: Digital Sequence Information (DSI) and a New Technological Landscape' by Chidi Oguamanam in Dwight Newman (ed), Research Handbook on the International Law of Indigenous Rights (Elgar, Forthcoming) comments

From the late twentieth-century and continuing, there has been significant traction in the recognition of the contributions of the knowledge of Indigenous peoples and local communities (IPLCs) to human development across diverse disciplines, especially in the environmental and life sciences. A feature of this trend is support for the participation of IPLCs in the making of relevant laws and policies as well as for them to equitably share in the benefits resulting from research and development (R&D) and various technological interventions in the utilization of their knowledge and their stewardship of genetic and various natural resources. The period under reference is characterized by rapid pace in technological evolution, notably at the interface of digital and information processing technologies and in the biological or general life sciences. While these technological revolutions have capacity to enhance the protection of the rights and interests of IPLCs, they also raise significant concerns and obstacles to the latter’s ability to optimally realize their rights and interests in the new and increasingly complex technological landscape. Nowhere is this technologically propelled conundrum more evident than in the context of IPLCs’ rights in access and equitable benefit sharing (ABS) over genetic resources and associated indigenous or traditional knowledge and the broad spectrum of transformations in life sciences R&D as symbolized in the inchoate concept of digital sequence information (DSI) on genetic resources. This chapter maps the legal framework for IPLCs rights in the ABS dynamic and how mutually reinforcing developments around DSI and synthetic biology present a significant threat in law, science and policy to the realization of those rights. It supports a more prudent and less hasty but pragmatic policy directions to address the challenges which the new and emergent technological dynamics pose for IPLCs.

'The Rights of Nature as a Bridge between Land-Ownership Regimes: The Potential of Institutionalized Interplay in Post-Colonial Societies' by Alex Putzer, Tineke Lambooy, Ignace Breemer and Aafje Rietveld in Transnational Environmental Law comments 

Despite the growing prominence and use of Rights of Nature (RoN), doubts remain as to their tangible effect on environmental protection efforts. By analyzing two initiatives in post-colonial societies, we argue that they do influence the creation of institutionalized bridges between differing land-ownership regimes. Applying the methodology of inter-legality, we examine the Ecuadorian Constitution of 2008 and the Ugandan National Environment Act 2019. We identify five normative spheres that influence land-ownership regimes. We find that the established Ecuadorian RoN have an institutionalized effect on the nation's legal system. Their more recently established Ugandan counterpart shows potential to develop in the same direction. 

 The authors state 

Rights of Nature (RoN) do not represent one single train of thought, but many – they ‘have both multiple histories and multiple meanings’. Despite, or precisely because of, this heterogeneity, the idea is increasingly used to address Earth's ecological crises by challenging overly anthropocentric mindsets. Up to June 2021, at least 409 legal RoN initiatives have emerged across 39 countries. Regardless of their mounting use, Darpö, in a recent report for the European Parliament, submits that RoN are not a ‘paradigmatic revolution for environmental law’. He argued that the movement faces the same problems as conventional protection efforts, including insufficient access to justice and financial difficulties. We agree that RoN are not a panacea for nature protection issues. However, as we argue in this article, RoN can be a promising ally in bridging conflicting land-ownership regimes. 

The ownership of nature has long been identified as an important factor within environmental protection efforts. Relatively new is the connection of ownership rights with RoN. Among the authors who do address it is Boyd, who sees the vision of nature as property as one of ‘three damaging ideas’ that stand as the root for the ‘ongoing use and misuse of other animals, species, and nature’. Burdon looks at private property, reconceptualizing it ‘as a relationship between and among members of the Earth community’. Bradshaw discusses an extension of property rights holders to include non-human animals. Kauffman and Martin reject a complete abandonment of property, reflecting upon an interplay between RoN, property, and markets instead. Similarly, Sanders writes about natural self-ownership.  It becomes evident that the relationship between RoN and ownership has all but a common trajectory. Consequently, rather than adopting any particular prescription, we conduct an empirical analysis of the practical implementation. In particular, we look at how RoN affect land-ownership regimes in post-colonial societies. 

Post-colonial societies experience frequent conflict with regard to land ownership; the reasons for this vary. A dominant explanation refers to economic growth as a motivator for colonial land grabs. A less scrutinized explanation looks at the, at times, fundamentally opposing understandings of nature. While colonizing normative spheres have largely reproduced an anthropocentric concept of land ownership, colonized ones have offered non-anthropocentric alternatives. Chthonic legal traditions are exemplary of the latter. National and international efforts are increasingly considering the perspectives of a global chthonic population of 476.6 million. While they represent little more than 6% of humanity, their ‘ownership’ of nature is disproportionately higher. In 2018, Garnett and co-authors estimated that chthonic peoples ‘influence land management across at least 28.1% of the [world's] land area’; 20% of that territory overlaps with at least 40% of global protected areas and intact landscapes. Put differently, while accounting for little more than 1/16th of the global population, chthonic peoples manage 2/5ths of the world's protected land. 

A major limitation to making efficient use of this disproportionately high share is these people's ambiguous ‘influence on land management’, which can range from full governance to occasional consultancy. Conceptual clarity is crucial to combat legal uncertainty, not only for chthonic peoples. 

With these connections and overlapping interests in mind, we analyze two cases: namely, the 2008 Ecuadorian Constitution and the 2019 Ugandan National Environment Act. Whereas both countries share similar histories regarding their evolution of land-ownership regimes, we compare the differing institutionalization effects of their respective RoN initiatives. To explicate the resulting ‘bridge’, we use inter-legality – a method that formally considers all ‘vantage points’ that contribute to the creation of a specific law. We consider this perspective to be promising because it explicitly avoids enforcing or reproducing post-colonial legal hegemonies. By scrutinizing every relevant normative sphere and evaluating its respective importance in a given context, inter-legality aims to heighten the legitimacy of any legal norm-creation process. 

Keeping such an inclusive approach in mind, we examine both case studies, following a similar structure. We start with a general introduction and subsequently identify the relevant normative spheres that have historically influenced land-ownership regimes. These spheres include (i) post-colonial political and legal systems; (ii) chthonic legal traditions; (iii) civil society organizations; (iv) international (soft) law; and (v) local and multinational corporations (Sections 2 and 3). In the second step, we analyze the process that led to the respective RoN initiatives (Section 4). While we find elements of a bridging function, we remain only cautiously optimistic regarding future developments (Section 5).

'The Right to Social Security' by Beth Goldblatt in Malcolm Langford and Katharine Young (eds.)  The Oxford Handbook of Economic and Social Rights (Oxford University Press) states

The chapter considers the origins and purpose of the right to social security and its status in international law, regional human rights instruments, and national constitutions. It discusses the developing interpretation of the right in international law and in national jurisprudence and examines the right in relation to welfare cutbacks in the context of increasing austerity in the Global North and the growth in social security provision in the Global South as a response to poverty, including with regard to the ILO’s recommendation for social protection floors. The chapter gives particular consideration to the relationship between the right to social security and equality. It also focuses on two further issues that touch on core questions regarding the interpretation of the right to social security: conditionality and a basic income. All three discussions point to central considerations of access to the right, its scope, and its purpose. It should be noted that, since the time of writing, the COVID-19 pandemic has presented an extreme new context in which to consider how the right to social security links with vulnerability, equality, and solidarity. While this analysis, especially in relation to conditionality, basic income, and equality, is pertinent to the response to the health and economic crisis that has followed COVID-19, this chapter does not incorporate a discussion of international and national responses.

Hemlock

'The Death of Socrates: Managerialism, metrics and bureaucratisation in universities' by Yancey Orr and Raymond Orr in (2016) 58(2) Australian Universities Review 15 comments 

Neoliberalism exults the ability of unregulated markets to optimise human relations. Yet, as David Graeber has recently illustrated, it is paradoxically built on rigorous systems of rules, metrics and managers. The potential transition to a market-based tuition and research- funding model for higher education in Australia has, not surprisingly, been preceded by managerialism, metrics and bureaucratisation (rendered hereafter as ‘MMB’) in the internal functioning of universities in the last decade. This article explores the effects of MMB on the lives of academics, the education of students, and the culture and functioning of universities. By examining some of the labour activities of academics, work scheduling and time use, we demonstrate that MMB reduces the efficiency and quality of academic teaching, research and administration. Even more worrying, by qualitatively assessing the language, values and logic increasingly present in the academic culture of higher education in Australia, we show that MMB does not simply fail to improve universities or accurately assess academic achievement, it replaces the core values of education with hollow bureaucratic instrumentalism. 

The authors state

 Then raising the cup to his lips, quite readily and cheerfully he [Socrates] drank off the poison. And hitherto most of us had been able to control our sorrow; but now when we saw him drinking, and saw too that he had finished the draught, we could no longer forbear, and in spite of myself my own tears were flowing fast; so that I covered my face and wept, not for him, but at the thought of my own calamity in having to part from such a friend.– Plato, Phaedo

The importance of measurement and standardisation for contemporary systems of control is an enduring theme associated with modernity (Weber, 1978 [1922]; Foucault, 1990 [1976]; Scott, 1998). The rise of such regimes and mentalities has not only been understood as altering structures of power but also contributing to a loss of heterogeneous forms of value, community and imagination (Alexander, 2013; Graeber, 2001; Graeber, 2015). Perhaps most famously, Weber, writing of changes in both global spirituality (2001 [1905]) and university systems (1946 [1919]) of his own day,described the effects of such processes as ‘disenchantment’ (Entzauberung). The ethnological studies tracing systems of control and subsequent disenchantment in the context of religion (Eliade, 1987), economy (Polanyi, 2001 [1944]), the family (Lasch, 1995) and sex (see Robinson, 2014 on Weber) remain seminal works in 20th Century social sciences.Such transformations are no longer research questions only to be explored in the field.The rationalisation triumvirate of metrics, managerialism and bureaucratisation (MMB) now organise the educational, professional and intellectual terrain of many universities, their academics and students. 

Reflecting this general trend in humanism’s response to modernity, we offer a small study within the context of the academy that explores such systems of control and the subsequent disenchantment of secular society’s once sacred place. 

This article presents a series of examples of what MMB can do to education, thereby providing feedback for academic administrators as well as analytical techniques for understanding MMB’s effects for academic staff, with their responsibility as stewards of the university,apart from simply ‘employees’ of it. To these ends, our examination of MMB in the academy is divided into two sections. The first addresses labour inefficiencies through how, by its own desire to make universities more productive and legible workplaces through centralised control, MMB creates a remarkably inefficient and unclear system through excessive management. To do this, we compare the labour (defined in time, attention and personnel) to perform common tasks in what we define as managerial and non-managerial universities. The second section explores the effects of MMB. In particular, we describe the values, behaviours and mentalities now emerging within the MMB system as an illustration of what might be described as the disenchantment of academic life.We base this comparative method from our experiences in North American and Australian universities which, for the authors; represent examples of non-MMB and MMB educational institutions, respectively. Within the context of this paper,we focus our analysis on those clear accounts of the differences between these systems, in the hope of bringing greater empirical accuracy and thus more pointed criticism of such a fundamental transformation occurring in higher education. 

The thematic division of this article addresses two common positions supporting MMB in the academy.To proponents of this type of broad rationalisation, such changes in the university could appear to improve the efficiency and quality of the institution. It must first be pointed out that the managerialism found in current MMB institutions is not the traditional form of administration within a university of deans, provosts, and vice-chancellors / presidents (Ginsberg 2011). In the MMB model we refer to in this paper, managerialism extends beyond the use of business managers in administrative roles. Decisions about teaching techniques, research projects, university educational philosophies and the daily activities of academics are increasingly micromanaged. In such a system, even when administrators are academics, they make decisions based on metrics rather than human judgment. Yet, this contemporary brand of MMB in education does not reflect all types of managerialism in the private sector. The type of management philosophy that academics now often face in universities that focuses on workflows and metrics is a type of Taylorism. Associated with Fredrick Taylor (1856-1915), such a philosophy reduced labour into a series of discrete elements, each regulated by a management structure. By controlling the technical aspects of production rather than the culture or satisfaction of workers, management asserts that output is increased. Coming into fashion in the early 20th century,Taylorism has, since the 1930s, been viewed as severely flawed for industries that lack easily measured and agreed-upon tasks or outputs (Akerlof & Kranton, 2005). Academic work is not readily measurable in the context of other industries,such as the fast-food industry, that still use Taylorist management techniques. The examples highlighting the inefficiencies of MMB in the first part of this article are to address supporters of this new system on technocratic grounds. 

Other supporters of MMB in education hold the ostensibly reasonable view that universities, as part of society, change within society. In a world increasingly beset by MMB, should not universities mirror this transformation? Is ‘institutional isomorphism’ (see DiMaggio & Powell, 1983) undesired in the 21st Century? To this seemingly reasonable position, we have addressed the second part of this article. It shows how such transformations alter the search for knowledge, the integrity of educators and the experiences of students. It does so through altering the values, discourse and behaviour associated with the academy. We demonstrate that the resulting culture of the university is antithetical to the venerable tradition of the advancement and dissemination of knowledge. 

Before turning to our analysis, we, given the limited space within this article, will offer parsimonious definitions of the key terms to be used.We operationally define MMB as constituted from a combination of these three concepts:

Bureaucratisation: The prevalence within an institution for decisions to be made by a codified set of regulations rather than the judgments of individuals. 

Metrics: The use of formal quantitative analytics rather than human judgment in evaluating the worth of individuals and actions. 

Managerialism: Through the use of bureaucratic procedures and metrics, the activities of individuals and groups should be controlled by individuals not performing such activities.This is often believed to increase efficiency. 

Cheating

‘On the Efficacy of Online Proctoring using Proctorio’ by Laura Bergmans, Nacir Bouali, Marloes Luttikhuis and Arend Rensink in Proceedings of the 13th International Conference on Computer Supported Education 1 (CSEDU 2021) 279-290 comments 

In this paper we report on the outcome of a controlled experiment using one of the widely available and used online proctoring systems, Proctorio. The system uses an AI-based algorithm to automatically flag suspicious behaviour, which can then be checked by a human agent. The experiment involved 30 students, 6 of which were asked to cheat in various ways, while 5 others were asked to behave nervously but make the test honestly. This took place in the context of a Computer Science programme, so the technical competence of the students in using and abusing the system can be considered far above average. 

The most important findings were that none of the cheating students were flagged by Proctorio, whereas only one (out of 6) was caught out by an independent check by a human agent. The sensitivity of Proctorio, based on this experience, should therefore be put at very close to zero. On the positive side, the students found (on the whole) the system easy to set up and work with, and believed (in the majority) that the use of online proctoring per se would act as a deterrent to cheating. 

The use of online proctoring is therefore best compared to taking a placebo: it has some positive influence, not because it works but because people believe that it works, or that it might work. In practice however, before adopting this solution, policy makers would do well to balance the cost of deploying it (which can be considerable) against the marginal benefits of this placebo effect. 

The authors state

 All over the world, schools and universities have had to adapt their study programmes to be conducted purely online, because of the conditions imposed by the COVID-19 pandemic. The University of Twente is no exception: from mid-March to the end of August, no teaching-related activities (involving groups) were allowed on-campus. 

Where online teaching has worked at least reasonably well, in that we have by and by found effective ways to organise instruction, tutorials, labs and projects using online means, the same cannot be said for the testing part of the programme. Traditionally, we test our students using a mix of group project work and individual written tests. The latter range from closed-book multiple choice tests to open-book tests with quite wide-ranging, open questions. Such tests are (traditionally) always taken in a controlled setting, where the students are collected in a room for a fixed period, at the start of which they are given their question sheet and at the end of which they hand in their answers. During that period, a certain number of invigilators (in other institutions called proctors) are present to observe the students’ behaviour so as to deter them from cheating — defined as any attempt to answer the questions through other means than those intended and proscribed by the teacher. This system for testing is, we believe, widespread (if not ubiquitous) in education. 

Changing from such a controlled setting to online testing obviously opens up many more opportunities for cheating. It is hard to exaggerate the long-term threat that this poses to our educational system: without reliable testing, the level of our students cannot be assessed and a university (or any other) diploma essentially becomes worthless. We have to do more than just have students make write the test online and hope for the best. 

Solutions may be sought in many different directions, ranging from changing the nature of the test altogether (from a written test to some other form, such as a take-home or oral test), to offering multiple or randomised versions to different students, or applying plagiarism checks to the answers, or calling upon the morality of the students and having them sign a pledge of good faith; or any combination of the above. All of these have their pros and cons. In this paper, rather than comparing or combining these measures, we concentrate on one particular solution that has found widespread adoption: that of online proctoring. In particular, we describe an experiment in using one of the three systems for online proctoring that have been recommended in the quickscan (see (Quickscan SURF, 2020)) by SURF, a “collaborative organisation for ICT in Dutch education and research” of which all public Dutch institutes of higher education are members. 

Approach. 

Online proctoring refers to the principle of remotely monitoring the actions of a student while she is taking a test, with the idea of detecting behaviour that suggests fraud. The monitoring consists of using camera, microphone and typically some degree of control over the computer of the student. The detection can be done by a human being (the proctor, also called invigilator in other parts of the Anglosaxon world), or it can be done through some AI-based algorithm — or a combination of both. 

The question we set out to answer in this paper is: how well does it work? In other words, is online proctoring a good way to detect actual cheating, without accusing honest students — in more formal terms: is it both sensitive and specific? How do students experience the use of proctoring? 

In answering this question, we have limited ourselves to a single proctoring system, Proctorio, which is one of the three SURF-approved systems of (Quickscan SURF, 2020). The main reason for selecting Proctorio is the usability of the system; it is possible to use it on the majority of operating systems by installing a Google Chrome extension and it can be used for large groups of students. It features automatic detection of behaviour deemed suspicious in a number of categories, ranging from hand and eye movement to computer usage or sound. The teacher can select the categories she wants to take into account, as well as the sensitivity level at which the behaviour is flagged as suspicious, at any point during the proceedings (before, during or after the test). Proctorio outputs an annotated real-time recording for each student, which can be separately checked by the teacher so that the system’s suspicions can be confirmed or negated. The system is described in some detail in Section 2. 

Using Proctorio, we have conducted a controlled randomized trial involving 30 students taking a test specifically set for this experiment. The students were volunteers and were hired for their efforts; their results on the test did not matter to the experiment in any way. The subject of the test was a first-year course that they had taken in the past, meaning that the nature of the questions and the expected kind of answers were familiar. Six out of the 30 students were asked to cheat during the test, in ways to be devised by themelves, so as to fool the online proctor; the rest behaved honestly. Moreover, out of the 24 honest students, five were asked to act nervously; in this way we wanted to try and elicit false positives from the system. 

Besides Proctorio’s capabilities for automatic analysis, we also conducted a human scan of the (annotated) videos, by staff unaware of the role of the students (but aware of the initial findings of Proctorio). We expected that humans would be better than the AI-based algorithm in detecting certain behaviours as cheating, but worse in maintaining a sufficient and even level of attention during the tedious task of monitoring. 

Findings. 

Summarising, our main findings were: The automatic analysis of Proctorio detected none of the cheating students; the human reviewers detected 1 (out of 6). Thus, the percentage of false negatives was very large, pointing to a very low sensitivity of online proctoring. 

None of the honest students were flagged as suspicious by Proctorio, whereas one was suspected by the human reviewer. Thus, the percentage of false positives was zero for the automatic detec- tion, and 4% for the human analysis, pointing to a relatively high specificity achievable by online proctoring (which, however, is quite useless in the light of the disastrous sensitivity). Furthermore, we gained valuable insights into the conditions necessary to make online proctoring an acceptable measure in the opinion of the participating students. 

The outcome of the experiment is presented in more detail in Section 3, and discussed in Section 4 (including threats to validity). After discussing related work (Section 5), in Section 6 we draw some conclusions.

'Cheating in online courses: Evidence from online proctoring' by Seife Dendira and Stockton Maxwell in (2020) 2 Computers in Human Behavior Reports 100033 comments 

This study revives the unsettled debate on the extent of academic dishonesty in online courses. It takes advantage of a quasi experiment in which online proctoring using a webcam recording software was introduced for high-stakes exams in two online courses. Each course remained the same in its structure, content and assessments before and after the introduction of online proctoring. Analysis of exam scores shows that online proctoring was associated with a decrease in average performance in both courses. Furthermore, the decrease in scores persists when accounting for potential confounding factors in a regression framework. Finally, in separate regressions of exam performance on student characteristics, the regression explanatory power was higher for scores under proctoring. We interpret these results as evidence that cheating took place in the online courses prior to proctoring. The results also imply that online proctoring is an effective tool to mitigate academic dishonesty in online courses. 

 The authors state 

In the past two decades, higher education institutions have experienced unprecedented growth in online learning. In the U.S., where this study took place, enrollment in distance higher education grew steadily between 2002 and 2016. Since 2012, whereas overall enrollment in higher education has been declining, growth in distance education has in fact been rising. As of 2016, the latest year for which data are published, close to a third of all college students were taking at least one distance course (Seaman et al., 2018). 

More than half of these distance learners were students that were combining non-distance (face-to-face, F2F) learning with distance learning. Accordingly, today many “traditional” institutions offer a menu of online courses as well as fully online programs. This is prompted by sustained demand for such courses and programs – in 2016, for example, about 30 percent of students in public and private non-profit institutions in the U.S. enrolled in at least one distance learning course (source: own calculation using data in Seaman et al., 2018). It also appears that educators in all types of institutions have recognized that a structural shift has occurred, and that online delivery and learning will be a mainstay of higher education in the future. 

Therefore, the dialogue surrounding online education has turned to how best to deliver online courses. Various aspects of online courses, such as modality (fully online versus hybrid; synchronous versus asynchronous), technology platform, assessment and accessibility are considered and debated. The goal of such dialogue, ultimately, is to design and deliver online courses in which student learning and experience are at least on par with traditional (F2F) courses. Given this goal, the question of how much learning takes place in online courses (relative to the traditional/F2F mode) has become a critical point of contention (see, among others, Cavanaugh & Jacquemin, 2015; Alpert et al., 2016; Dendir, 2019; Paul & Jefferson, 2019). 

A particularly pertinent issue in this regard is academic dishonesty (McCabe et al., 2012). Some argue that even the measures that are used to gauge learning in online courses, such as scores on formative or summative assessments, do not truly reflect learning because they are possibly tainted by cheating that occurs during these assessments (Harmon et al., 2010; Arnold, 2016). If, for example, exam score distributions turn out to be comparable in an online course and its F2F counterpart, it does not mean that comparable learning takes place in the two modes simply because the online scores are likely inflated by cheating.1 Such arguments are predicated on the assumption that academic dishonesty is more prevalent in online courses than F2F ones (Kennedy et al., 2000; Young, 2012). 

Various arguments are provided as to why online courses could be more amenable to academic dishonesty. One is that because assessments often happen in unsupervised or unproctored settings, it is difficult to confirm the identity of the test taker (Kraglund-Gauthier & Young, 2012). Similarly, online test takers can use unauthorized resources (e.g. cheat sheets, books or online materials) during assessments. Also, the online environment – by the mere absence of a close relationship and interaction with an instructor – can encourage collaborative (group) work with other students (Sendag et al., 2012; McGee, 2013; Hearn Moore et al., 2017). 

While there is also growing empirical evidence showing that academic dishonesty is relatively more common in online learning, the debate is not yet fully settled (Harton et al., 2019; Peled et al., 2019). It is in this context that the current study presents evidence from a quasi/natural experiment that occurred in two online courses at a midsize comprehensive university in the U.S. The experiment involved the introduction of online proctoring using a webcam recording software for high-stakes exams. The structure, content and assessments (exams) in each course remained the same before and after the introduction of online proctoring. A change in student performance, if any, can therefore be attributed to the mitigation of cheating after online proctoring came into place, and provides direct evidence on the scale of academic dishonesty in online courses. 

Relative to much of the existing literature, the treatment here is unique because proctoring did not entail a change in modality. Many studies that investigate academic dishonesty typically compare student performance in unproctored online assessments and proctored F2F ones. But a comparison of student performance in proctored F2F exams and unproctored online exams may not be entirely valid because some of the performance differences could be due to the testing environment per se, apart from the effect of supervision (Fask et al., 2014; Butler-Henderson & Crawford, 2020). By comparing performance in the same learning mode (online) but before and after the advent of supervision, this study avoids any such complications. Furthermore, from a practical point of view, in many scenarios in-person proctoring of tests may not be feasible for fully online courses. Therefore, the results of the current study also provide evidence on the efficacy of easily adoptable, relatively low-cost online proctoring in online courses. 

The findings of the study suggest that cheating was taking place in the unsupervised exams. First, simple bivariate analyses show that there was a significant drop in average exam scores in both courses after online proctoring was introduced, in many cases by more than a letter grade. This is despite the fact that student characteristics remained largely similar before and after proctoring (implying sample selection was unlikely to be a factor). Second, explicitly accounting for student characteristics in a multiple regression framework could not explain away the decrease in performance. Finally, a comparison of the explanatory powers of regressions of scores on student ability and maturity indicators showed that they were higher for proctored exams. From these results one can also infer that online proctoring of assessments is a viable strategy to mitigate cheating in online courses. 

The balance of the paper is organized as follows. The next section reviews the related literature on academic dishonesty. Section 3 describes the setup of the study and data. Section 4 presents bivariate analysis, the regression methodology and results. Section 5 points out some caveats and limitations of the study. The last section concludes and draws a few implications on the basis of the results of the study.

Frustration

In Elliott v State of Queensland (Queensland Health) [2022] QIRC 332 the Queensland Industrial Relations Commission in considering a dismissal over disregard of a vaccination directive states 

[25] The department submits that the decision to make a disciplinary finding against Ms Elliott was fair and reasonable for the following reasons: The directive is lawful (being issued pursuant to section 51 of the Hospital and Health Boards Act 2011 (Qld)) and reasonable; Ms Elliott's usual workplace is the Mackay Base Hospital where she is required to attend for legitimate reasons including training or changes to operational requirements; Ms Elliott did not have a reasonable excuse for non-compliance with the directive; Vaccine hesitancy or personal preference not to receive a COVID-19 vaccine is not an exceptional circumstance and does not result in compliance with the directive being unreasonable; and Ms Elliott's concerns raised in relation to receiving the vaccine were addressed in Ms Jones' letter of 21 February 2022. ...

 Saliently it comments

[29] The commission has now dealt with a great many appeals of this nature. Consequently, a reliable body of jurisprudence has been developed dealing with increasingly common themes in the arguments advanced by appellants like Ms Elliott, who have not complied with a vaccine mandate applicable in their respective departments of employment. 

[30] Notwithstanding that these decisions are available publicly on the Queensland Courts website, appellants continue to file these appeals challenging the validity of directions for them to be vaccinated and relying on arguments such as 'vaccines are not safe' or 'mandates are coercion' or 'human rights infringements' or 'risk assessments were not provided' or 'consultation did not occur' et cetera. 

[31] It is more than apparent that the vast majority of such appellants have no regard for the reported decisions or if they do, they simply press on, expecting that somehow the outcome will be different in their case. With the exception of a small number of decisions returned to departments for technical inadequacies, no appellant has succeeded on the increasingly tedious suite of arguments of this nature. 

[32] The continued use of the commission's resources to receive and repeatedly dispense with the same arguments cannot be in the public interest. In circumstances where there is now a reliable body of decisions dispensing with similar arguments, it is my view that appellants seeking to reagitate settled arguments should be required to justify why they ought to be heard. 

[33] Ms Elliott was able to provide fulsome submissions in response the department in respect of her appeal. Ms Elliott was further afforded the opportunity pursuant to s 562A to demonstrate that she has an arguable case. 

[34] For the reasons outlined immediately above, I do not intend to descend to a detailed analysis of Ms Elliott's arguments. Suffice to say they traverse many of the now well-travelled and consistently rejected arguments and include submissions that Ms Elliott:

• Did not consent to the alteration of her employment contract; 

• Cannot give valid consent to be vaccinated due to coercion; 

• Presented for vaccination but was refused because she informed the medical practitioners that she was presenting under duress; and 

• Was not provided with a risk assessment.

[35] In addition to these matters, Ms Elliott makes submissions relying on information (apparently extracted from the Fair Work Commission website) and refers to federal legislation regarding coercion (that has no application to her employment). Ms Elliott also seeks to invoke the Human Rights Act 2019 (Qld) ('HR Act') (although entirely omits any reference or consideration to s 13 of that Act). Ms Elliott also submits that the Directive is 'inconsistent' with industrial instruments and 'Acts'. 

[36] All of these arguments advanced by Ms Elliott are patently wrong. Ms Elliott appears adept at researching information that she considers helpful to her arguments however, none of it is. Assertions about coercion are misconceived. References to federal legislation are irrelevant. Arguments relying on the HR Act are incomplete. 

[37] The fact that she relies on unreliable or irrelevant information does not detract from the fact that she was at least sufficiently skilled to find the information in the first place. Had Ms Elliott applied her research skills to conduct research of the relevant case law, she would have readily appreciated how unmeritorious her arguments are. 

[38] With one exception, all of the arguments advanced by Ms Elliott are (more or less) the same as arguments that have been run (without success) on countless occasions before this commission throughout 2022. There is only one argument made by Ms Elliott that is unique to her circumstances. 

[39] Ms Elliott's role with the department is currently the subject of a temporary flexible work agreement. Ms Elliott has approval to perform her work from home on a full-time basis. For this reason, Ms Elliott argues that she has no reason to enter departmental facilities which, she argues, puts her outside the scope of the directive. As unique as this argument might be, a cursory consideration of it reveals its flaws. 

[40] Ms Elliott's argument in this regard entirely ignores the fact that she remains an employee of the department and therefore she remains subject to any reasonable and lawful direction. Regardless of whether she is currently not required to attend a departmental facility to perform her duties the fact remains that, subject to the appropriate notice, her temporary flexible arrangement could be withdrawn at any time. In the event of this occurring, all of the risks sought to be addressed by the directive would immediately arise if Ms Elliott was unvaccinated. ...

[42] The gravity of the purpose of the directive i.e., to manage the risks associated with transmission of COVID-19 in departmental facilities means that every reasonable step to manage that risk must be taken. This would extend to ensuring that every employee who is or even may be required to attend upon a departmental facility has complied with the directive. 

[43] Ms Elliott's expectation of working from her home indefinitely and without exception is misconceived. As an employee of the department, she remains liable to comply with all lawful and reasonable directions, any number of which might require her to attend at a departmental facility in the foreseeable future. In those circumstances, the only unique feature of her appeal is equally as devoid of merit as the other matters she raises. 

Suspension without renumeration 

[44] With respect to Ms Elliott's appeal against the decision to suspend her without remuneration, here too Ms Elliott fails to have regard to relevant precedents. 

[45] In circumstances where there can be no dispute as to the lawful and reasonable nature of the directive, and where Ms Elliott has openly failed to comply with that directive without reasonable excuse, the termination of her employment might well be a fait accompli. In those circumstances, one can well appreciate how the decision maker would not consider it appropriate to continue remunerating a defiantly recalcitrant employee relying on a collection of misconceived arguments. ... 

[46] Having regard to all of the submissions filed by Ms Elliott in this matter I consider they reveal that the entire appeal is founded on grounds that have already been extensively dealt with by this commission and been consistently rejected or alternatively, Ms Elliott's appeal grounds are misconceived.

Land Acquisition

This month's report, by the NSW Legislative Council Portfolio Committee 6, on Acquisition of land in relation to major transport projects, features an overview of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) and two previous NSW government commissioned reviews in relation to the Act − the 2014 Russell Review and the 2016 Housing Acquisition Review (Pratt Review). 

 It states 

 Government agencies, some state owned corporations and local councils have the authority to acquire land for public infrastructure or facilities. While the NSW Government aims to make the best use of existing state-owned land for these purposes, at times it will need to acquire private land.  

According to the NSW Government submission, land acquisition for essential infrastructure purposes is critical to the state's growing population and the government's duty to provide essential services to its citizens. Acknowledging that acquisitions of private land are not approached lightly, and only taken when there is a significant benefit to the broader public, the NSW Government outlined the importance of the acquisition process being fair and transparent, allowing landowners to make informed decisions, with appropriate support throughout the process. 

In practice, according to Property Acquisition NSW, the Centre for Property Acquisition provides an independent service to help property owners understand the property acquisition process, '[w]hen the Government makes a decision to build a project, such as a new road or hospital, it instructs the relevant agency to investigate where that project might best be located, or what might be the best route'. 

This is in conjunction with 'extensive consultation ... with the community to find out its views on where and how a project might be built'. 

Once a preferred design, route or location for the project is determined, the agency responsible may identify properties that need to be acquired to deliver the project. 

In this regard, it is important to note that both Transport for NSW and Sydney Metro (and the former Roads and Maritime Services) have legislative powers to acquire land for public purposes, as prescribed within the: • Transport Administration Act 1988 & Transport Administration Amendment (Sydney Metro) Act 2018, and • the Roads Act 1993. 

The land acquisition process 

The Land Acquisition (Just Terms Compensation) Act 1991 prescribes the process an acquiring authority must follow in order to acquire land from a landowner, as well as the principles for determining compensation on just terms. 

The objects of the Act are to: • provide a statutory guarantee that the amount of compensation will be not less than the market value at the date of acquisition • ensure compensation on just terms for landowners whose land is acquired • establish procedures which simplify and expedite the acquisition process • require an authority to acquire land designated for acquisition for a public purpose where hardship is demonstrated • encourage the acquisition of land by agreement instead of by compulsory process.1 

Typically, all legal interests in land are identified before commencing the acquisition process. The NSW Government explained that detailed planning of activities is usually conducted many weeks in advance of the announcement of a new project and the commencement of acquisitions, to ensure as many landowners are advised by the acquiring authority first. At this point, owners are provided with specific project information, and information related to their rights in relation to the property acquisition process. 

When the acquisition process formally commences, the acquiring authority will instruct an independent valuer to inspect the property. This valuer will determine the market value of the property and any additional compensation payable. Landowners are encouraged to obtain their own valuation from an independent valuer, with the reasonable costs of this being paid for by the acquiring agency. 

Once the independent valuation is complete, acquiring authorities will issue a formal letter of offer and enter into a process to reach agreement with landowners and their professional consultants. The NSW Government advised that the process of reaching agreement often involves the exchange of both parties’ completed valuation reports, followed by a number of legal and valuation meetings between both parties, with a view to reaching an agreement on compensation'. 

To comply with the legislation, the acquiring authorities are required to make a genuine attempt to acquire the property interest by agreement within a minimum six month period before commencing the compulsory acquisition process.  According to the NSW Government, '[o]ver 80% of government acquisitions of private land ... are achieved through agreement between the landowners and the acquiring authority on an independent market valuation of the property'. 

During this negotiation process any additional compensation is also determined. 

In the instance that the acquiring authority and the affected party cannot reach an agreement on the amount payable over the minimum six month negotiation period, the property may be acquired compulsorily under the Act. 

As the NSW Government explained:

... [t]he acquiring authority commences this process by issuing a Proposed Acquisition Notice (PAN) to the property owner and advising the Valuer General. Following the expiry of the PAN period [90 days], the property will be compulsorily acquired through gazettal and the Valuer General will independently determine the amount of compensation payable. 

The NSW Government claimed that '[l]ess than 20% of acquisitions proceed to compulsory acquisition, which occurs when the acquiring authority and the landowner are unable to agree on land valuation and compensation'. 

Following the compulsory acquisition of a property, the NSW Government advised that 'a person is entitled to remain [in] the building for 3 months after ... if it is the person’s principal place of residence or principal place of business'. 

 Determinations by the NSW Valuer General The NSW Valuer General is an independent statutory officer appointed by the Governor of New South Wales to oversee the State’s land valuation system. The Valuer General’s functions are primarily set out in the Valuation of Land Act 1916 and the Land Acquisition (Just Terms Compensation) Act 1991. 

As noted at 1.12, the NSW Valuer General becomes involved when a landowner and acquiring authority are unable to reach an agreement on the amount of compensation to be paid and the property is acquired compulsorily through gazettal. 

Under the Land Acquisition (Just Terms Compensation) Act 1991 the NSW Valuer General independently determines the appropriate amount of compensation due. 

Dr David Parker, NSW Valuer General explained to the committee the independent determination process:

... I assess the disturbance claims of the dispossessed and I assess the other heads of compensation. I do that with regard to the provisions of the Act, court precedent—of which there is quite a lot—and Valuer General policy. I read the claims submitted by the dispossessed and the issues list submitted by the acquiring authority and we exchange that information between each party so that there is no risk of adverse information. When completed, a preliminary report is provided to both parties for consideration before I finalise my determination. There are a series of conferences for the parties during the process and it is very common for my determination to differ from the claim made by the dispossessed or the offer made by the acquiring authority. 

Dr Parker also advised that a landowner can appeal to the Land and Environment Court if they are unhappy with the Valuer General's determination. 

Appeals to the Land and Environment Court 

As noted above, if a person is dissatisfied with the amount of compensation offered by the acquiring authority, as per the determination of the Valuer General, the person may lodge an objection with the Land and Environment Court. The Court them decides the amount of compensation that will justly compensate the person for the acquisition of the land. 

An application to the Land and Environment Court must be lodged within 90 days of the compensation notice being issued by the acquiring authority. The applicant must give the acquiring authority notice in writing that they have begun proceedings in the Court, after which the applicant and the acquiring authority will provide evidence about entitlement to and quantum of compensation. 

In nearly all cases, the Court will arrange a conciliation conference between the parties under section 34 of the Land and Environment Court Act 1979, with the purpose of assisting the parties to resolve the claim for compensation without the need for a hearing. 

If the case does proceed to a hearing, the amount of compensation determined by the Land and Environment Court could be more or less than the amount of compensation originally offered by the acquiring authority. 

A party may only appeal against the Land and Environment Court's decision on the matter on a question of law. If the order or decision was made by a commissioner, the appeal is made under section 56A of the Land and Environment Court Act 1979 and is heard by a judge of the Court. If the order or decision was made by a judge, the appeal is made under section 57 of the Land and Environment Court Act 1979 and is heard by the NSW Court of Appeal. 

Hardship acquisitions 

Under section 23 of the Land Acquisition (Just Terms Compensation) Act 1991 an authority of the state can acquire land in certain hardship circumstances, for example, if the owner is unable to sell the land at its market value because of the designation of the land for acquisition for a public purpose. 

According to the NSW Government, applications for hardship acquisition are made to the relevant authority using a Notice Requiring Acquisition of Land form from the Centre for Property Acquisition website. If an authority rejects the application for hardship or there is no response within 90 days, the applicant can seek an independent review of the application. It is then referred to a panel of independent reviewers appointed by the Minister for Water, Property and Housing. 

The NSW Government advised that a total of eight applications have been considered by this panel since its inception in April 2017, with four decisions upheld, two overturned in favour of the applicant, one withdrawn and one pending. 

Recent reviews or reports related to the property acquisition process This section outlines two previous government commissioned reviews conducted in relation to the Land Acquisition (Just Terms Compensation) Act 1991 and the implementation of recommendations from each review. According to the NSW Government, both reviews 'were undertaken with the objective of delivering a fairer, more transparent, more equitable land acquisition process for landowners, while improving consistency and accountability of government agencies engaged in the acquisition of private property'. 

In its submission to the inquiry, the NSW Government stated that the 'majority of the government’s commitments [in response to the two reviews] have been delivered or are ongoing and are monitored for continuous improvement'. 

2014 Russell Review 

In 2014, the NSW Government commissioned Mr David Russell SC to undertake a review of the Land Acquisition (Just Terms Compensation) Act 1991. The aims of the review were to: • define and clarify what real property rights or interests in real property are • recommend a set of principles to guide the process for how acquisitions of real property should be dealt with by Government • consider whether and how these principles should be reflected in current legislation, and • recommend a process for considering these principles in future legislation. 

However, the Russell Review 'did not include consideration of the level of compensation payable for the acquisitions of real property'. 

The Russell Review made 20 recommendations to government including 'several amendments to the Act and to the property acquisition process to ensure that it adequately supports participants'. 

In October 2016, the NSW Government provided a response to the Russell Review, 'supporting most of the recommendations ... and ma[king] several amendments to the Act as a result'.39 One of the recommendations from the review, Recommendation 17, was not implemented and was discussed during the current inquiry, relating to compensation being based on a 'reinstatement basis'. This will be discussed further in Chapter 3. 

2016 Pratt Review 

In 2016, the then Customer Service Commissioner, Mr Michael Pratt AM, conducted a Housing Acquisition Review with the objective of 'improving the manner in which the NSW Government deals with residents' which was 'triggered by concerns in relation to WestConnex'. 

The Law Society of NSW described the review as a high-level, citizen focused review which 'produced a series of resident "pain points", guiding principles and recommendations'. 

The Pratt Review made 20 recommendations, including the 'establishment of the Centre for Property Acquisitions and the Property Standards Group, and amendments to the administrative process'. 

In response to recommendations from this review, the NSW Government 'immediately undertook work ... to improve the property acquisition process by developing circulars and certain guidelines, and by establishing the Centre for Property Acquisition to provide a whole- of-government approach to supporting landowners through the acquisition process'. 

The Centre for Property Acquisition, based within Transport for NSW, is responsible for ensuring that all government agencies have access to consistent property acquisition standards, processes and guidelines, as well as ensuring all property owners, residents and businesses are dealt with in a respectful and empathetic way.  The property acquisition standards state that: • property owners will be treated fairly and with empathy and respect • property owners will be provided with clear information about their rights • property owners will be supported throughout the acquisition process with assistance tailored to meet their individual circumstances • the acquisition process will be consistent across projects and acquiring authorities • the Government will monitor and report publicly on the effectiveness of the land acquisition process. 

Reforms that followed this review included: • the minimum six month negotiating period to provide residents with more certainty and time to understand the process • the creation of a Personal Manager role in acquiring agencies to provide affected owners with a single point of contact for the acquisition • the offering of free counselling to residents being affected • greater access to information about the compulsory acquisition process. 

Current context and approach to the inquiry 

Land acquisition for essential infrastructure is an important step in the delivery of critical infrastructure. Transport for NSW is currently delivering the largest infrastructure program in Australia with $72 billion of investment over four years for major city-shaping and precinct projects like Sydney Metro, light rail, motorways and road upgrades. 

Reflecting on the current levels of activity, Transport for NSW confirmed that the scale of corridor preservation currently underway has not been seen since the 1950s. 

According to data provided by the Centre for Property Acquisitions, most acquisitions are undertaken by local councils, Sydney Metro and Transport for NSW. In the 2021 financial year, local councils undertook 157 acquisitions, with approximately 70 of these being partial and the remainder whole acquisitions. Sydney Metro completed 152 acquisitions, nearly all of which were full acquisitions, and Transport for NSW undertook 147 acquisitions, the majority of which were only partial (approximately 120). 

Transport for NSW advised that, as at April 2022, there were 639 property acquisitions underway, including acquisitions of interests in land. Of these, 285 are in the Greater Sydney region and 354 are in regional NSW. This was in addition to 142 live interests in land being acquired by the agency. 

In the 2021 financial year, Transport for NSW acquired property in relation to a number of projects, including the Coffs Harbour Bypass, Barton Highway, M7-Northern Road and Mulgoa Road upgrade. 

In relation to Sydney Metro, the committee was advised that there were: • 417 interests being acquired for Metro West (Westmead to The Bays), being 149 freehold interests (75 commercial and 74 residential) and 268 leasehold interests (202 commercial and 61 residential)53 • 64 acquisitions undertaken for the Metro Western Sydney Airport project, 19 of which were in Orchard Hills (and of this 19, 15 being freehold interests) • 513 interests to be acquired, across 13 buildings, for Metro West (Pyrmont & Hunter Street stations).

Robodebt

The Terms of Reference for the Royal Commission on RoboDebt note that 

in November 2019 the Federal Court of Australia declared, with the consent of the Australian Government, that a demand for payment of an alleged debt under the Robodebt scheme was not validly made; and the Australian Government had adopted the same or a similar approach in calculating and raising debts against hundreds of thousands of other individuals under the Robodebt scheme; and the Australian Government subsequently announced that over 400,000 debts raised under the Robodebt scheme would be zeroed or repaid. 

The Commission is to inquire, speedily, into the following matters -

the establishment, design and implementation of the Robodebt scheme, including:

• who was responsible for its design, development and establishment; 

• and why those who were responsible for its design, development and establishment considered the Robodebt scheme necessary or desirable; 

• and the advice, process or processes that informed its design and implementation; 

• and any concerns raised regarding the legality or fairness of the Robodebt scheme; 

• the use of third party debt collectors under the Robodebt scheme;

in relation to concerns raised about the Robodebt scheme following its implementation:

• how risks relating to the Robodebt scheme were identified, assessed and managed by the Australian Government in response to concerns raised by the Australian Taxation Office, other departments and agencies, affected individuals and other people and entities;

• and the systems, processes and administrative arrangements that were in place to handle complaints about the Robodebt scheme from members of the public affected by the scheme, their representatives or government officials and staff; 

• and whether complaints were handled in accordance with those systems, processes and administrative arrangements, and, in any event, handled fairly; 

• and how the Australian Government responded to adverse decisions made by the Administrative Appeals Tribunal; 

• and how the Australian Government responded to legal challenges or threatened legal challenges; and approximately when the Australian Government knew or ought to have known that debts were not, or may not have been, validly raised; 

• and whether the Australian Government sought to prevent, inhibit or discourage scrutiny of the Robodebt scheme, whether by moving departmental or other officials or otherwise;

the intended and actual outcomes of the Robodebt scheme, in particular:

• the kinds of non‑pecuniary impacts the scheme had on individuals, particularly vulnerable individuals, and their families; 

• and the approximate total cost of implementing, administering, suspending and winding back the Robodebt scheme, including costs incidental to those matters (such as obtaining external advice and legal costs);

Liability

In RWQ v The Catholic Archdiocese of Melbourne & Ors [2022] VSC 483 - where Cardinal Pell is the Second Defendant - McDonald J has considered the plaintiff’s claim for nervous shock against the first defendant arising from alleged sexual assault of plaintiff’s child by second defendant (the plaintiff being a parent rather than a primary victim of child abuse) and whether the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic) applies to the claim. 

The Court states 

[1] The present proceeding concerns the application of the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (‘the Act’) to the first defendant, the Catholic Archdiocese of Melbourne. The plaintiff claims damages against the first defendant for nervous shock which he alleges is founded on or arises from the sexual abuse of his son by the second defendant. The first defendant contends that the application of the Act is confined to claims by plaintiffs who have been subjected to child abuse (‘primary victim’). It contends that the Act has no application to the plaintiff’s claim because he does not allege that he was subjected to child abuse. The plaintiff claims to have suffered psychiatric injury upon learning of his son having been subjected to child abuse and subsequent death caused by the child abuse (‘secondary victim’). 

[2] I have concluded that the application of the Act to non-government organisations is not confined to claims founded on or arising from child abuse of the plaintiff. The plain meaning of the words ‘founded on or arising from child abuse’ in s 4(2) of the Act includes a claim for nervous shock brought by a parent of a child alleged to have been sexually abused. The contextual considerations relied upon by the first defendant do not warrant the application of the Act to non-government organisations being confined to claims brought by a plaintiff who is an alleged primary victim of child abuse. [ 

3] On the proper construction of s 4(2) of the Act, the Act does apply to the plaintiff’s claim against the first defendant. On the proper construction of s 7 of the Act, a proper defendant nominated by the first defendant would incur any liability arising from the plaintiff’s claim against the first defendant. 

Background 

[4] By a further amended statement of claim filed 4 February 2022 the plaintiff alleges: That his son (AAA) and a friend (BBB) were abused by the second defendant sometime between July and December 1996; That as a result of the abuse AAA commenced using illicit drugs at the age of 14 and used drugs consistently until his death; AAA died on 8 April 2014 from a heroin overdose caused by the psychological impact of the abuse; RWQ was informed of the abuse of AAA by a member of the SANO Task Force on 1 July 2015; As a result of learning about the abuse of his son RWQ has suffered nervous shock for which he makes a claim at common law and pursuant to Part XI of the Wrongs Act 1958 (Vic); The first defendant owed RWQ a duty to take care not to cause RWQ pure mental harm; The first defendant breached the duty to RWQ which was a cause of RWQ’s injury. [ 

5] RWQ alleges that by reason of the second defendant’s position as Archbishop, the first defendant is directly liable for the abuse of AAA and the injury to RWQ. In the alternative, RWQ alleges that the first defendant is vicariously liable for the abuse of AAA by reason of the abuse occurring in the course of the second defendant’s role as Archbishop. ... 

[12] There is no material distinction between the words ‘founded on’ and the words ‘brought in respect of’. The words ‘founded on’ are words of wide import. A claim ‘arising from’ child abuse requires a less proximate causal relationship between the claim and the child abuse than is required for a claim founded on child abuse. The use of ‘or’ in the phrase ‘founded on or arising from’ manifests a legislative intention to extend the application of the Act beyond claims against NGOs founded on child abuse. Absent the phrase ‘arising from’ it is strongly arguable that a claim by a plaintiff for damages for nervous shock consequent upon the plaintiff being told that their child had been sexually abused, would be a claim founded on child abuse. However, the use of the phrase ‘arising from’ puts the matter beyond doubt. A claim by a plaintiff for damages for nervous shock consequent upon the plaintiff being told that their child had been sexually abused is plainly a claim arising from child abuse. 

[13] If as contended by the first defendant the application of the Act to NGOs is confined to claims brought by primary victims of child abuse, the words ‘or arising from’ in s 4(2)(a) would be inutile. All words of a statute must be given meaning unless there is a good reason to the contrary. ..

[18] A claim against an NGO by a primary victim of child abuse will always be a claim founded on child abuse. If the application of the Act is limited in the way the first defendant contends, there would have been no occasion for the Parliament to have extended the application of the Act to NGOs by the inclusion in s 4(2)(a) of the words ‘or arising from’. 

[19] The extracts from the second reading speech relied upon by the first defendant lend support to its contention that the references in the speech to ‘survivors’ is a reference to primary victims of institutional child abuse. However, the following extracts from the speech suggest that the references to ‘survivors’, are not confined to primary victims of institutional child abuse: The Ellis case highlighted the problem survivors can face in seeking justice. In that case, the claimant sought to sue the Catholic Archdiocese of Sydney and the trustees of the Roman Catholic Church, for abuse perpetrated by a Catholic assistant priest in the 1970s. The NSW Court of Appeal held that the Archdiocese could not be liable, as it was unincorporated and could not be sued. The court also held that the trustees could not be sued. The fact that the trustees held and managed property for and on behalf of the Catholic Church did not make them liable for legal claims associated with church activities. The court was unable to identify a proper defendant and the case was dismissed. 

The current common-law position in Australia, based on the Ellis case, is that an unincorporated association that conducts its affairs by way of trusts cannot be held organisationally accountable in civil litigation for institutional child abuse. 

This problem appears to be unique to Australia. For example, in the United States, most churches are either incorporated entities, or are structured as a 'corporation sole' which can be sued in abuse claims. In England, case law has overcome the issues raised in Ellis. Therefore, institutional child abuse plaintiffs in Victoria, and Australia, are uniquely disadvantaged. 

The Betrayal of Trust inquiry heard from a number of survivors that unincorporated associations have used all defences available to them, including the Ellis defence, to defeat claims. For example, Mrs Chrissie and Mr Anthony Foster explained that the Catholic Church’s lawyers had strenuously defended litigation brought by them, despite having earlier accepted that the abuse had occurred. Betrayal of Trust found that the strictly legalistic approach adopted by the church failed to address the issue of genuine accountability. ... 

Analysis 

[23] The task of the Court is to construe the language of the statute. If the meaning of the words in s 4(2) of the Act has a wider application than may have been contemplated by the draftsperson, the Court must give effect to that wider meaning. ... Even if, as contended by the first defendant, the references to ‘survivor’ in the second reading speech is confined to primary victims of institutional child abuse, the plain meaning of the words in s 4(2) gives the Act wider application than claims against an NGO brought by a primary victim of child abuse. There is no reference in s 4(2) to ‘survivor’, ‘primary victim’ or ‘secondary victim’. There is nothing in the text of s 4(2) which limits its operation to a claim founded on or arising from child abuse of the plaintiff. 

[30] The first defendant contends that the word ‘plaintiff’ in s 4(2)(a) should be read as ‘child abuse plaintiff’ and that so read the Act only applies to a claim founded on or arising from child abuse of the plaintiff. The words ‘child abuse plaintiff’ do not appear in s 4(2). The only reference to the words ‘child abuse plaintiff’ in the Act is in s 1 which provides that the main purpose of the Act is to provide for child abuse plaintiffs to sue an organisational defendant in respect of unincorporated non-government organisations which use trusts to conduct their activities. A purpose provision is a statement of legislative intent which may properly inform the construction of a statute. However a purpose provision expressed in general terms may serve little function as an aid to the construction of a more specific substantive provision. 

[31] Properly construed, ‘child abuse plaintiffs’ in s 1 means plaintiffs who commence or wish to commence a claim against an NGO founded on or arising from child abuse. If I am wrong and the words ‘child abuse plaintiffs’ in s 1 means a plaintiff who is a victim of child abuse, it does not follow that the application of the Act is limited to claims by plaintiffs who are the victims of child abuse. First, s 4(2) uses the word ‘plaintiff’ rather than ‘child abuse plaintiff’. Second, s 1 provides that the main purpose of the Act is to make provision for child abuse plaintiffs. If ‘child abuse plaintiffs’ means victims of child abuse, a construction of s 4(2) whereby the Act also applies to claims by secondary victims is not inconsistent with a main purpose of providing for primary victims of child abuse to sue non-government organisations. 

[32] In addition to relying upon extrinsic materials the first defendant submits that other provisions of the Act support a finding that the application of the Act is limited to claims founded on or arising from child abuse of the plaintiff. The first defendant draws attention to the words ‘capable of being sued and found liable for child abuse in respect of the claim’ in ss 7(4)–(5) and ss 8(8)–(9). The first defendant submits that the phrase ‘found liable for child abuse in respect of the claim’, means that the claim against the NGO which the plaintiff brings must be a claim alleging liability for child abuse of the plaintiff as defined. It must be a claim which, if it is successful, results in a finding of liability on the part of the proper defendant, to the plaintiff, for child abuse. 

[33] The words ‘capable of being sued and found liable for child abuse in respect of the claim’ which appear in ss 7(4) and (5) must be read in the context of ss 7(1) and (2). Section 7(1) provides that an NGO to which the Act applies, in relation to any claim founded on or arising from child abuse, with the consent of the nominee, may nominate an entity that is capable of being sued: (a) to act as a proper defendant to the claim on behalf of the NGO; and (b) to incur any liability arising from the claim on behalf of the NGO. ... 

[36] The words ‘founded on or arising from child abuse’ are used repeatedly throughout the Act: ss 4(1), 4(2), 4(3), 7(1), 7(4), 8(8), 12(1) and 13. The repeated use of these words points strongly to the conclusion that the application of the Act to NGOs is not confined to claims by primary victims of child abuse. To conclude otherwise renders the words ‘arising from child abuse’ otiose. 

[37] ... The mischief which the Act was intended to remedy is not limited to the capacity of an NGO such as the first defendant to rely upon the Ellis defence in respect of a claim brought by a primary victim of institutional child abuse. The text of the Act, particularly the repeated use of the words ‘a claim founded on or arising from child abuse’ points to the relevant mischief being the capacity of an NGO to rely on the Ellis defence in respect of a claim founded on or arising from child abuse, irrespective of whether the claim is brought by a primary or secondary victim. The text of a statute is important as it contains the words being construed. The text of s 4(2) is the clearest indicator of the mischief which the Act is intended to remedy. 

[38] The plain meaning of the words in s 4(2) is that the Act applies to an NGO if a plaintiff commences a claim against an NGO founded on or arising from child abuse. This includes a claim for nervous shock by a plaintiff whose claim is founded on or arises from child abuse of the plaintiff’s child. The contextual matters relied upon by the first defendant do not warrant a departure from the plain meaning of s 4(2). To construe ‘plaintiff’ in s 4(2)(a) as being limited to a plaintiff who is a primary victim of institutional child abuse forecloses the inquiry which the text of s 4(2) demands, namely whether the plaintiff’s claim against an NGO is founded on or arises from child abuse. 

[39] The question of whether, on the proper construction of s 4(2), the Act applies to the plaintiff’s claims against the first defendant, is to be answered in the affirmative. The consequence of this affirmative answer is that the claims made by the plaintiff against the first defendant are claims to which the Act applies. A further consequence is that the question whether, on the proper construction of s 7 a proper defendant nominated by the first defendant would incur any liability arising from the plaintiff’s claims against the first defendant, should also be answered in the affirmative. The first defendant is an NGO to which the Act applies. The plaintiff’s claim against the first defendant is a claim founded on or arising from child abuse. As such, the first defendant may nominate a proper defendant pursuant to s 7(1) of the Act to incur any liability arising from the claim on behalf of the first defendant. A proper defendant nominated by the defendant under s 7(1) will incur any liability arising from the plaintiff’s claim against the first defendant.