Zombies and personhood

'We’re All Infected: Legal Personhood, Bare Life and The Walking Dead' by Mitchell Travis in (2015) 28(4) International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique 787-800 argues that

greater theoretical attention should be paid to the figure of the zombie in the fields of law, cultural studies and philosophy. Using The Walking Dead as a point of critical departure concepts of legal personhood are interrogated in relation to permanent vegetative states, bare life and the notion of the third person. Ultimately, the paper recommends a rejection of personhood; instead favouring a legal and philosophical engagement with humanity and embodiment. Personhood, it is suggested, creates a barrier in law allowing individuals in certain contexts (and in certain embodied states) to be rendered non-persons and thus outside the scope of legal rights. An approach that rejects personhood in favour of embodiment would allow individuals to enjoy their rights without being subject to such discrimination. It is also suggested that the concept of the human, itself complicated by the figure of the zombie, allows for legal engagement with a greater number of putative rights claimants including admixed embryos, cyborgs and the zombie.

'Zombies, International Relations, and the Production of Danger: Critical Security Studies versus the Living Dead' by Jason J. Morissette in (2014) 36(2) Studies in Popular Culture 1-27 comments

In recent years, zombie fiction has clawed its way out of the grave and into mainstream popular culture. Once only a small niche in the broader horror genre, zombies — and depictions of the “zombie apocalypse” in particular—have emerged as a cultural phenomenon in the past decade, as the living dead have infected film, television, literature, and video games with their unique brand of putrescent terror. The United States Centers for Disease Control and Prevention even launched a section on its website titled “Preparedness 101: Zombie Apocalypse” in 2011, capitalizing on the zombie craze to promote disaster readiness (Khan). Why has zombie fiction struck such a chord with contemporary audiences? In a 2008 interview, filmmaker and architect of the modern zombie genre George A. Romero indicated that, in his mind, the zombie apocalypse represents “a global change of some kind. And the stories are about how people respond or fail to respond to this” (McConnell). In turn, Romero’s cinematic mis- sion statement could just as easily describe the field of international relations and its scholarly emphasis on understanding how state and non-state actors alike respond to any number of global challenges, ranging from nuclear proliferation to climate change to the abuse of human rights. 

In Theories of International Politics and Zombies, Daniel W. Drezner describes the living dead as both “one of the fastest-growing concerns in international relations” and “an important puzzle to scholars of international relations” (1). As Drezner goes on to demonstrate in his work, the fictional threat of zombies can serve as a powerful metaphor through which to explore and deconstruct the discipline’s core assump- tions. To this end, he applies various theoretical perspectives drawn from the field of international relations - most notably the realist, liberal, and social constructivist paradigms - to the imagined landscape of the zombie apocalypse, shedding light on what kinds of global responses each school of thought might predict under these dire circumstances. Woven throughout Drezner’s analysis is the underlying fictional assumption that zombies, as depicted in works of popular culture, constitute an existential threat to the state, creating a security environment in which war with the undead is virtually inevitable. The present article questions this assumption from the perspective of critical security studies (CSS), exploring the securitization of the undead and the production of danger in fictional human-zombie relations. How does the hegemonic discourse surrounding the zombie apocalypse predispose states to respond with violence? Why are these outbreaks so frequently presented as threats to the survival of the state and not as humanitarian crises or global health emergencies? This article argues that the imagined securitization of zombies creates a world in which the discourse of fighting the zombie apocalypse delegitimizes any effort to instead solve the zombie apocalypse. Moreover, the present article contends that strikingly similar discourses routinely shape the “real world” of foreign policy with regards to such controversial issues as terrorism and nuclear proliferation, privileging violent responses over less coercive options.

'On the Conceptual, Psychological, and Moral Status of Zombies, Swamp‐Beings, and Other ‘Behaviourally Indistinguishable’ Creatures' by Julia Tanney in (2004) 69(1) Philosophy and Phenomenological Research 173-186 comments

In this paper 1 argue that it would be unprincipled to withhold mental predicates from our behavioural duplicates however unlike us they are “on the inside.” My arguments are unusual insofar as they rely neither on an implicit commitment to logical behaviourism in any of its various forms nor to a verificationist theory of meaning. Nor do they depend upon prior metaphysical commitments or to philosophical “intuitions”. Rather, in assembling reminders about how the application of our consciousness and propositional attitude concepts are ordinarily defended, I argue on explanatory and moral grounds that they cannot be legitimately withheld from creatures who behave, and who would continue to behave, like us. I urge that we should therefore reject the invitation to revise the application of these concepts in the ways that would be required by recent proposals in the philosophy of mind.

'Between the Living and Undead: How Zombie Cinema Reflects the Social Construction of Risk, the Anxious Self, and Disease Pandemic' by Robert Wonser and David Boyns in (2016) The Sociological Quarterly comments

The zombie film has become an important component of contemporary popular culture. The sociological nature of the themes addressed by these films reflect prominent social concerns, and lend themselves to sociological analysis as texts themselves. This article examines the zombie film genre, its history, predominant themes, and its illustration of sociological dynamics related to identity, collective behavior, disease, contagion, and the privileges that come from social inequality. Particular attention is placed on what the zombie films, themselves, can tell us about society and how they illustrate sociological principles. First, we examine the origins and history of zombie cinema. Next, we move to a discussion of the central narrative devices around which zombie films are organized. In particular, we focus on two narratives in zombie films: those that emphasize zombie possession; and those that focus on the sociological risks of zombie pandemics. The discussion then moves to an analysis of zombies as selves, and how zombie films express cultural anxieties about selfhood, loss of autonomy, and threats of de-individualization. We then explore the roles of power and privilege in the social epidemiology of zombification, paying particular attention to how those who succumb to zombiedom illustrate the sociological dynamics of health disparities in the real world. Finally, the sociology of infectious disease is used to address how zombiedom correlates with real disease outbreaks, what we know about the social aspects of infectious disease transmission, and the sociology of pandemics.

 The authors go on to argue

While in zombie cinema protagonists frequently debate the existential situation of the infected, the aggression of zombies toward the living causes them to be encountered, and usually defined, as ecological adversaries to humans. As such, killing the infected is not only deemed acceptable in zombie films, it is necessary for the survival of humankind. Consequently, in some films (e.g., Dawn of the Dead and Zombieland), individual zombies are sniped wantonly for sport. In other films (e.g., Day of the Dead and 28 Days Later) they are warehoused for crass experimentation. With the issue of zombie selfhood as a pivot-point, however, many protagonists are confronted with moral questions over the human nature of the zombie. Is killing a zombie equivalent to killing a human? How can one kill what is already dead? What are the implications of killing a human that does not have a self?

The moral struggle over the personhood of the zombie is an important narrative device in much of zombie cinema, and is a salient subtext of many such films. Because a zombie is human in appearance, but exists without self, there are ambiguities as to whether or not they should be considered full-fledged members of the human community. If zombies are infected, but still living people, then the harm inflicted on them by the uninfected is problematic. If, however, zombies are in fact dead, devoid of personhood, and aggressive, then humans are under no real social or moral imperative to help, protect, or refrain from killing them. This predicament is a central theme underscoring the drama of zombie cinema: Are zombies people with suspended selves deserving to be saved; or are they undead ghouls to be feared and ultimately exterminated for the survival of the human species?

As a narrative focus, the moral quandary about zombies and their selfhood is directly explored in many zombie films. As a consequence, individuals like Hershel Green are often portrayed as unwilling to kill their infected friends and family members. This is also illustrated in films like Dawn of the Dead and Shaun of the Dead. What if Hershel Green is right and a residue of the human self remains? As examples of the prevalence of this theme, zombie films like Fido, Shaun of the Dead, and Day of the Dead all examine the potential existence of a vestigial self among zombies. In Day of the Dead, Romero uses the setting of the shopping mall to create an allegory of mindless consumerism and give his protagonists the opportunity to debate the existential situation of the zombie. During one famous scene, zombies lumber aimlessly past abandoned storefronts and pause to stare blankly at forsaken window displays. A group of humans (including Francine and Stephen) who have taken refuge on the rooftop of the mall comment on the paradoxical behavior of the zombies and reflect on their absence of selfhood:

Francine:What are they doing?Why do they come here?

Stephen:Some kind of instinct. Memory of what they used to do.This was an important place in their lives.

That the zombies appear to have some memory left of their living past raises the question as to whether or not some semblance of selfhood remains. Similar examinations of the selfhood of zombies are further explored in Land of the Dead (2005), where some zombies continue to instinctually engage in their old jobs, most notably “Big Daddy” who repeatedly pantomimes the pumping of gasoline.

The clearest philosophical treatment of selfhood and the zombie comes, perhaps, from Day of the Dead (1985). In this film, a scientist named Dr. Logan attempts to socialize zombies through behaviorist systems of punishment and reward. Logan has trained one zombie, whom he has named “Bub,” to engage in simple human behaviors and to use basic language. His efforts are met with some success. In conversation with his assistant Sarah, Logan remarks:

Dr. Logan: You see, Sarah, they're – they are us. They are the extensions of us. They are the same animal, simply functioning less perfectly. They can be fooled, you see? They can be tricked into being good little girls and boys, The same way we were tricked into it on the promise of some reward to come.

For Logan, while zombies may have lost their own sense of self, they may have retained the capacity to learn, if properly taught using stimulus and response conditioning.

In one memorable scene depicting Logan's socialization experiments, he gives Bub a telephone to play with: Dr. Logan:

He remembers. He remembers everything that he used to … [Giving Bub a telephone, Bub puts the phone to his ear.]

Extraordinary isn't it? That's right, Bub! Say hello to your Aunt Alicia! Say, “Hello, Aunt Alicia!” “Hello!” Bub: A-… a-… alloooooleeeeesha!

In another example, Bub engages in some purposeful “communication” with Captain Rhodes as Bub salutes him:

[Bub salutes the group and stands at attention.] Dr. Logan: Apparently he was in the military! Return the salute! See what he does!

Captain Rhodes: You want me to salute that pile of walking pus? Salute my ass!

Dr. Logan: Your ignorance is exceeded only by your charm, Captain. How can we expect them to behave if we act barbarically ourselves?

As Land of the Dead informs us, while lacking a fully formed self, zombies are capable of behavioristic conditioning. To Dr. Logan it seems, this development could signal the need to reevaluate how we understand zombies; not as mindless cannibals but something more akin to wild animals capable of at least some rudimentary training.

In some films, such as the comedy Shaun of the Dead, the moral issue of zombie selfhood is taken to an extreme. While saving Shaun and his girlfriend, Shaun's best friend Ed is overwhelmed by zombies and succumbs to the attack. As the film closes, the viewer finds that Shaun has kept a zombified (and potentially threatening) Ed “alive” in his backyard shed so they can continue to play video games together. While Ed does not appear to have a sense of self, he is regarded by Shaun as a person with a socially meaningful life. Of course, zombies like Ed create ambiguities surrounding the sociological membership of the zombified in the world of humans, but highlight selfhood as an important theme in zombie cinema. Even Ed remains a threat to the uninfected. The primary danger of the zombie is that with their bite they threaten to steal away individual selfhood, and reduce a human to their “bare life,” a de-individualized member of an anonymous mass.

TransTasman Patents (AP and SEP)

The Commerce Committee of the New Zealand Parliament in its report on the Patents (Trans-Tasman Patent Attorneys and Other Matters) Amendment Bill 2015 (NZ) has called for amendments to the proposed trans-Tasman patent registration regime.

The report notes that

The Patents (Trans-Tasman Patent Attorneys and Other Matters) Amendment Bill seeks to amend the Patents Act 2013. The main purpose of the bill is to implement a single trans-Tasman registration regime for Australian and New Zealand patent attorneys. The bill also proposes ... amendments to facilitate the implementation of a single patent application process and a single patent examination process with Australia.

The Single Application and Examination Processes for patents (SAP and SEP) would allow applicants to make a single application for a patent in either Australia or New Zealand, and have the pair of applications examined by a single examiner in either Australia or New Zealand. Implementation of the processes requires enabling legislation in both countries. The Australian Parliament passed the Intellectual Property Laws Amendment Act 2015 (Cth) last year to allow for SAP and SEP, with the Patents (Trans-Tasman Patent Attorneys and Other Matters) Bill being introduced into the New Zealand Parliament in 2015 but as yet not passed.

In discussing SAP and SEP the report comments

Removal of single patent application and single examination processes 

Clause 5 would insert new section 220A into the Act to facilitate the development and implementation of a single patent application process (SAP) and a single patent examination process (SEP) by the Intellectual Property Office of New Zealand (IPONZ) and IP Australia. 

This provision provoked much concern, and we have examined it at length. For the following reasons, we recommend that clause 5 be deleted. 

We consider that SAP and SEP are unlikely to provide significant benefits to New Zealand. This is reflected in concerns raised by the majority of submitters. The main reasons we decided that SAP and SEP should not proceed are:

• Lack of benefits either to businesses or to patent attorney firms making applications on their behalf: if a SAP was used, there would be only very small cost and time savings. A SEP would offer no benefits because differences in patent law and practice between New Zealand and Australia mean that applicants would still be required to consider separate objections to both applications, and to formulate different responses to those objections. As a result, applicants using a SEP would be unlikely to save any time or costs. 

• Increased administrative costs to New Zealand businesses: there would be increased costs of IPONZ examination and filing fees. 

• Significant costs: there would be significant IT infrastructure costs to establish and implement a SAP, and ongoing maintenance costs. Establishing a SEP would also entail significant costs, including for examiner training and IT. 

• We understand that applicants are unlikely to use a SAP and a SEP, mainly for commercial reasons. 

• Work-sharing: examiners in IPONZ and IP Australia already benefit from in- creased online availability of the examination reports that they and other patent offices produce, which reduces duplication of examination work. We are also aware of advancements in international patent examination work-sharing arrangements which aim to increase efficiencies between patent offices. They include global initiatives such as the “Global Patent Prosecution Highway”. These work-sharing initiatives provide alternative means of achieving the benefits of a SEP, without the need to amend the Act, and involve less cost to IPONZ. 

• Recent developments have been proposed to the electronic procedures for filing patent applications under the Patent Cooperation Treaty (PCT), which is administered by the World Intellectual Property Organisation (WIPO). “ePCT” is an online system that allows registered users to upload documents relating to an international application directly into WIPO’s processing system. We are aware of a proposal being developed by WIPO to modify its ePCT system to allow filing of multiple national phase applications, seeking patent protection in a number of PCT member states. We understand that the modified ePCT system would provide similar benefits to a SAP, but at a much lower cost to IPONZ. We also understand that work is underway between WIPO and IPONZ to pilot the modified ePCT system.

 We note that IP Australia has not undertaken any further work on the SAP and SEP proposal, pending the outcome of this bill. Given the significant costs to IPONZ in implementing a SAP and SEP; the low likelihood that they would be used; and the lack of substantial benefits in terms of time and cost savings to New Zealand businesses, we consider that it is difficult to justify proceeding further with these initiatives. 

We therefore recommend that clause 5 be deleted to remove the empowering provisions regarding SAP and SEP.

Bank Self-Scrutiny

The Australian Bankers’ Association (ABA) has commissioned an 'independent review of product sales commissions and product based payments', no doubt entirely unrelated to calls for a royal commission and subsequent enforcement.

The ABA states

 Objectives 

The banking industry recognises that customers and the wider community expect banks to make sure they have the right culture, the right practices, and the right behaviours. 

Banks are committed to improving their practices and continuing to meet customer needs and community expectations. Making sure the remuneration structures of people selling our products align with customer outcomes is important for our businesses and trust and confidence across the banking industry. 

To achieve this, the independent review will:

• Build on the Future of Financial Advice (FOFA) reforms by identifying and collating the existing product sales commissions and product based payments that apply in relation to the sale, offer and distribution of identified banking products to retail and small business customers. 

• Assess whether and how product sales commissions and product based payments in retail banking could lead to poor customer outcomes, including identifying and collating examples as part of building a framework to assess whether the payment could result in poor customer outcomes. 

• Identify and test options for strengthening the alignment of remuneration and incentives and customer outcomes by either removing or changing those product sales commissions and product based payments which could lead to poor customer outcomes. 

• Identify options to guide potential responses for banks, including whether regulatory approvals or other actions are needed to enable banks to make any changes or take actions to address the relevant issues. 

As part of the review, the reviewer will be conscious of factors such as competition and customer choice in retail banking in Australia as well as the importance of recognising and rewarding good performance. 

Scope 

Staff and roles in retail banking 

The review will cover product sales commissions and product based payments received directly or indirectly by people selling banking products as a result of the number or value of products sold, offered or distributed to retail and small business customers. 

By focusing on roles in retail banking, the review may include bank staff who are employees, contractors and others in customer facing roles and non-customer facing roles, such as managers and supervisors, involved in selling, offering or distributing retail banking products to retail and small business customers. 

In addition to bank staff, where payments are made by the banks to non-bank sales channels or intermediaries, such remuneration structures will be in scope. 

Remuneration structures 

Product sales commissions and product based payments will be reviewed where:

• They include fixed or at risk payments that are a direct or formulaic payment (either $ or %) for the sale of one product or multiple products or the gross revenue generated from those products, and may include performance bonus payments and other sales incentives. 

• They are monetary or non-monetary and paid or given to staff or others (non-bank channels or intermediaries) by a bank. 

• They could result in poor customer outcomes. The reviewer will need to build a framework in consultation with banks and stakeholders to assess whether the payment could result in poor customer outcomes. 

Retail banking products 

The types of retail banking products in scope of the review include: 

• Basic banking products (e.g. transaction accounts, term deposits, travellers cheques) 

• Non-cash payment products (e.g. travel money cards) 

• General insurance products (except for personal sickness and accident) 

• First Home Saver Accounts (FHSA) 

• Consumer credit insurance (CCI) 

• Consumer credit products (including mortgages, personal loans and credit cards), and 

• Small business lending.

 Scope exclusions 

There have been extensive and significant changes to remuneration structures across financial services over the past few years. These changes have been due to legislative reforms as well as changes driven by the industry. The review is intended to build on these changes and now look at remuneration structures in retail banking. 

The review will, therefore, not include product sales commissions or product based payments already addressed through other reforms and reviews. Specifically: 

• Remuneration structures, product design issues and quality of advice regarding life insurance products as covered by the Review of Retail Life Insurance Advice (“Trowbridge Review”). The changes identified by this review have not yet been implemented. The banking industry supports fully implementing the recommendations of the Trowbridge Review and is committed to legislative reforms to support the industry making these changes to remuneration structures. 

• Advice related business models that comply with the FOFA reforms and associated exemptions contained in law and regulations. 

• Stronger Super reforms which removed the payment of commissions on default superannuation. 

• Fee based commissions that are transparent to the customer (i.e. fee for service or fee for advice). 

• Product sales commissions and product based payments made for the distribution of commercial insurance products through insurance brokers and other intermediaries, with the exception of CCI. 

• Product sales commissions and product based payments received as a result of products sold, offered or distributed to wholesale customers including institutional banking customers, commercial banking customers and global asset fund managers. 

Mortgage lending 

The review will include product sales commissions and product based payments across mortgage lending. ASIC is currently reviewing the mortgage broking industry, and in particular the consideration of remuneration structures and payment arrangements in mortgage broking. The review will run in parallel with the ASIC review. 

Banks are committed to an outcome that takes into account the ASIC findings. Any findings and options relating to mortgage broking will, therefore, align with the ASIC review timeline and wait for the completion of the ASIC review. 

Customer outcomes 

The reviewer will also be asked to provide observations and insights from the review to assist the banks ensure they have overarching principles on remuneration and incentives to support good customer outcomes and sound banking practices, the scope of which is broader than retail banking. 

The development of overarching principles on remuneration and incentives is another initiative in the industry announcement on 21 April 2016. 

Independent Reviewer 

The ABA has appointed Mr Stephen Sedgwick an independent person with relevant qualifications and experience to conduct this review. 

Mr Sedgwick will be supported by legal and remuneration experts to inform his findings and ensure the conduct of the review and the options for implementation that it identifies are consistent with the legal and regulatory obligations that apply to participants in the review. 

Mr Sedgwick will also have access to additional expert advice as needed from a Bank Advisory Group and a Stakeholder Advisory Panel. The Stakeholder Advisory Panel will include representation from across consumers, employees and professional standards. 

For matters relating to the independent review, Mr Sedgwick can be contacted confidentially at steve.sedgwick@retailbankingremunerationreview.com.au 

Consultation 

The reviewer will conduct the review publicly in consultation with: 

i. Consumer and small business organisations 

ii. Financial services industry representatives 

iii. Finance Sector Union and employees of banks 

iv. Relevant regulatory bodies 

v. Member banks, and 

vi. Other interested stakeholders. 

Submissions 

Submissions to the review are invited on any of the matters covered by the Terms of Reference. 

The reviewer  requests that each submission include a cover page with: 

- Name of the person or organisation making the submission, and a statement about whether the submission is personal or made on behalf of an organisation 

- Contact details 

- Key points made in the submission, and 

- List of (any) attachments to the submission. 

The reviewer  prefers submissions to be provided in Microsoft Word (docx) files or in PDF format.

Submissions should be lodged by 9 September 2016 via email to the reviewer at this address: Email: submissions@retailbankingremunerationreview.com.au  

Final Report 

Mr Sedgwick will publish a final report. The final report is expected to provide an overview of product sales commissions and product based payments in retail banking and other industries, identify possible options for better aligning remuneration and incentives so that they do not result in poor customer outcomes and set out actions which may be considered by banks and the banking industry to implement the findings. 

The ABA separately announced that

Mr Sedgwick will be supported by a competition and legal expert – Gina Cass-Gottlieb from Gilbert + Tobin Lawyers – and a remuneration expert – David Heazlett from Mercer, as well as a stakeholder advisory panel which includes: Gerard Brody – Chief Executive of Consumer Action Law Centre, Geoff Derrick – National Assistant Secretary at the Finance Sector Union, Sarah Saunders – Chief Advocate at National Seniors and Dr Deen Sanders – Chief Executive of the Professional Standards Authority.

Consumer Protection Enforcement

The Productivity Commission has released its issues paper on Consumer Law Enforcement and Administration.

The paper [PDF] states

2 How is the multiple regulator model for the ACL working and how could it be improved? 

Reported progress 

There has been significant reform in relation to generic consumer protection law since the Commission’s previous review in 2008. 

As noted, in 2009 Australian governments under the banner of COAG agreed to adopt the Commission’s main recommendations for a new national consumer policy framework. This agreement was supported by a MoU among ACL regulators signed in 2010. The ACL itself took effect on 1 January 2011. 

Since the inception of the single law, multiple regulator arrangements, ACL regulators have developed a series of regulatory plans and strategies, and instituted measures to improve cross-agency coordination and consistency. Many of these have been documented in a series of annual progress reports on the implementation of the ACL (for example, CAANZ 2016b). The actions reported include:

• publishing the Compliance and Enforcement Guide to explain how ACL agencies have agreed to act together and individually to achieve compliance with the ACL 

• establishing the ‘Australian Consumer Law Intelligence Network Knowledge’ (ACLINK) system, and various working groups and committees, to share information, discuss enforcement priorities and coordinate dispute resolution and compliance activities 

• agreeing on a lead agency approach for compliance and enforcement action  

• developing websites, phone apps and other educational materials for use in all jurisdictions to assist consumers and business understand their rights and responsibilities under the ACL 

At face value, the reported developments suggest that the ACL regulators have gone some distance to adopt the various high level ‘good regulatory practices’ advocated in the 2008 report. They appear to have a broad array of enforcement tools, pursue risk-based enforcement approaches, and have in place mechanisms to communicate and coordinate with each other. 

On this latter point, according to the issues paper for the ACL review:

... the national consumer policy framework has facilitated regulator communication and cooperation between regulators in the areas of policy and research, education and information, and compliance and dispute resolution. These arrangements have given rise to an unprecedented level of coordination between consumer regulators, as highlighted in the annual ACL progress reports. (CAANZ 2016a, p. 5) 

However, there are issues around the availability of evidence to verify the success of the multiple regulator model in delivering consumer protection. In 2013, for example, a report argued that:

Assessing the effectiveness of Australia’s consumer protection regulators’ enforcement work is made problematic by the inconsistencies, lacuna and unhelpful approaches that riddle the reporting of enforcement work. (Renouf, Balgi and Consumer Action Law Centre 2013, p. 10) 

INFORMATION REQUEST 

The Commission is seeking participants’ comments on the progress in implementing the ACL and the general success of the multiple regulator model. 

To what extent have issues noted in the Commission’s 2008 report — such as inconsistency, gaps and overlaps in enforcement and unclear delineation of responsibilities among regulators — been addressed by the current arrangements? 

To what extent have the ‘high level’ reforms documented in the implementation progress reports been reflected in improvements in ‘on the ground’ administration, compliance and enforcement of the ACL? 

What evidence or metrics are available that can be used to assess or substantiate these claims? What have been consumers’ and businesses’ experiences under the ACL regime? 

Does the multiple regulator model cause any confusion or other problems for consumers seeking redress or for business operations? How, in broad terms, could any such problems be addressed? What, if any, alternatives to the multiple regulator model should be considered? What benefits and costs would the alternatives have? 

Some particular concerns and challenges 

Any regulatory regime will always face some challenges, whether it be due to, for example, resourcing constraints for enforcement or the changing nature of the products or the marketplace the regime seeks to regulate. From its preliminary research and consultations on the ToR, the Commission is aware of a number of potential concerns or challenges around the administration and enforcement of the ACL. There are also some suggestions for improvement. (The following list is not intended to be exhaustive. The Commission will be seeking views and evidence from participants on these or other concerns or challenges for the enforcement and administration of the ACL.) 

Resourcing issues 

One matter raised by the ToR is the level of resources for enforcing the ACL. No regulatory regime is ever able to prevent all problems before they emerge or deal ‘perfectly’ with all problems once they do. However, there is the question of whether the  current levels of resources devoted to consumer protection are appropriate and commensurate to the risks being managed. 

Alongside this issue, the Commission understands that the level of resources available for enforcement of the ACL varies at the state and territory level (relative to, for example, their populations). In theory, this could lead to differences in the intensity of enforcement and, potentially, the level of consumer protection — or the availability of consumer redress — in different jurisdictions. (Evidence of different resourcing levels between jurisdictions leading to different consumer outcomes may be clearest in areas or incidents where the same adverse business act or strategy is exploited nationwide.) Alternatively, it may be that relatively under-resourced jurisdictions use different enforcement strategies or are able to refer some issues — particularly where they have a more ‘national’ character — to better resourced jurisdictions. 

INFORMATION REQUEST 

Are the levels of resources for enforcing the ACL adequate? What are the effects of differences in resources available to state and territory ACL regulators? To what extent, if any, does the potential for the ACCC or ASIC to undertake enforcement actions affect the resources the states and territories devote to ACL enforcement? 

Enforcement tools and approaches 

One of the objectives of the consumer policy framework is to ‘promote proportionate, risk-based enforcement’. According to the CAANZ Review Issues Paper (p. 36), the ACL regulators achieve this partly through cooperation and targeting their enforcement activities at priority areas or areas where there is evidence of likelihood of consumer harm. 

Implementing proportionate, risk-based enforcement practices can be quite challenging in practice. Among other things, where information on consumer problems is limited or incomplete, it may be difficult to quantify risks with any great precision. To undertake proportionate, risk-based enforcement, regulators must also have appropriate tools and remedies. And, given their limited resources, regulators must make difficult choices at the margin between, for example, pursuing additional prosecutions rather than additional business and community education around consumer law matters. 

INFORMATION REQUEST 

To what extent do the ACL regulators achieve proportionate, risk-based enforcement in practice? Are changes to the current approaches of the ACL regulators warranted, and is there any evidence to show that such changes would lead to improved outcomes for consumers overall? Are the enforcement tools and remedies available to regulators sufficient to address risks to consumers? 

Allocation of issues and responsibilities between regulators 

At the Commonwealth level, both the ACCC and ASIC have responsibilities for enforcing the ACL (although it is also possible to see ASIC as a ‘specialist’ regulator in the financial services field). A question for this study is whether communication and cooperation between ASIC and the other Commonwealth and state and territory ACL regulators, and the coordination of their enforcement activities, is operating effectively. There are also questions about how problems that emerge in particular jurisdictions, but have wider implications, are allocated between state, territory and national ACL regulators. 

INFORMATION REQUEST 

What mechanisms are used to coordinate the regulation and enforcement of consumer financial products (or the financial aspects of consumer products) between ASIC and the other ACL regulators, and how effective are they? 

How adequate are current arrangements among ACL regulators (and specialist safety regulatory regimes) for identifying consumer concerns that are ‘extra-jurisdictional’ and for developing a consistent national regulator response? 

How might these arrangements be improved? Intelligence gathering and sharing 

Another set of issues relates to the sophistication with which data on breaches of the ACL (or on emerging consumer protection problems) are collected and analysed. 

Individual ACL regulators typically collect and analyse such data for their own jurisdiction, which can be valuable in focussing their regulatory effort on areas where the likelihood of consumer harm is greatest. Such databases can also assist in alerting consumers to likely problem areas (as does, for example, the NSW Fair Trading Complaints Register). The Commission’s 2008 report recommended that all consumer regulators should participate in a shared national database of serious complaints and cases. ACL regulators have some mechanisms in place to share information with their counterparts, such as ‘ACLINK’. However, the Australian National Audit Office has noted that it has some limitations (ANAO 2016, p. 28). 

Australia still does not have a national database — such as the Consumer Complaint Database in the United States, managed by the Consumer Financial Protection Bureau — that would more readily enable analysis of complete disaggregated complaints data for the purposes of identifying trends, patterns and issues of concern. 

INFORMATION REQUEST 

What ongoing arrangements are there for ACL regulators and regulators of specialist safety regimes to share information on consumer protection problem areas on a national basis? Are such arrangements adequate, including for a future where markets are increasingly national in nature and new products and services are constantly entering those markets? 

If not, what arrangements might be cost-effective to institute that could provide such a national database? Are there approaches used by other countries that provide lessons for Australia on how it might improve the sharing of information among the different ACL regulators, or in other ways (for example, artificial intelligence or machine learning) identify emerging consumer harms or scams, or areas for priority enforcement? 

Other issues 

Some other issues that have been raised in the context of the parallel ACL review, that bear on the administration and enforcement of the ACL, include:

• differences in access to remedies for breaches of the ACL (for example, differences in application fees to access courts and tribunals and different penalties available in different states and territories) 

• the increase in online sales, and whether state- or territory-based ACL regulators are well placed to address concerns around imported products, particularly where there is no local distributor 

• whether ACL regulators are appropriately equipped to regulate business-to-business transactions, as they are now responsible for following recent amendments to the ACL that extended some of its protections to small business.

More broadly, the Commission is seeking participants comments and evidence on any other problematic aspects of the multiple regulator model for enforcing the ACL or how it is operating at present, the source of those problems, and suggestions on how the model or its operation could be improved. 

GENERAL INFORMATION REQUEST 

What problems are there with the administration and enforcement of the ACL under the multiple regulator model and how could it be improved? Where particular problems have arisen in the enforcement of the ACL, are these because of (a) weaknesses in the law (b) weaknesses in the way enforcement is undertaken (c) insufficient resources to enable sufficient enforcement action? 

3  Specialist safety regulatory regimes and their interface with the ACL 

As part of assessing how effectively the multiple regulator model is supporting a national consumer protection framework, the ToR require the Commission to also examine: the role of specialist safety regimes in protecting consumers; their interaction with the ACL; and the extent to which the responsibilities of the different specialist regime and ACL regulators are clearly delineated. 

The institutional ‘architecture’ for consumer safety regulation 

As noted earlier, the ACL has within it a national product safety and enforcement system (box 1). Under this system, Commonwealth, state and territory ACL regulators have responsibility for general consumer products. 

Governments have also established specialist safety regulatory regimes to deal with safety issues for specific types of complex products or where safety is paramount. Regulators of these specialist regimes typically have specific experience and expertise relevant to the subject matter of their regulatory framework (although, in some cases, the specialist regulatory function and the ACL function are housed in the same body). Examples of these specific areas and their regulators are contained in box 4. The ToR explicitly mention therapeutic goods, food safety, building and construction industry regulation, and electricity and natural gas regimes, as examples of specialist safety regimes the Commission should consider.

Box 4 Some specialist safety regimes and their regulators 

Specialist safety regimes and their regulators exist in the following areas: • Agriculture – Australian Pesticides & Veterinary Medicines Authority • Boats and marine safety – Australian Maritime Safety Authority • Building and building materials – for example, Consumer Affairs Victoria, NSW Fair Trading, Queensland Building and Construction Commission, SA Office of the Technical Regulator, Victorian Building Authority • Drugs and therapeutic goods – Therapeutic Goods Administration • Electrical appliances and goods – for example, Energy Safe Victoria, NT Worksafe, Dept. of Business, Queensland Electrical Safety Office • Food – Food Standards Australia and New Zealand, Prime Safe (Victoria), Therapeutic Goods Administration • Gas appliances – for example, Energy Safe Victoria, SA Office of the Technical Regulator, Queensland Department of Natural Resources and Mines, WA Department of Commerce (Energy Safety) • Motor vehicle and road traffic safety (Transport) – Department of Infrastructure, Transport, Regional Development and Local Government (Cth) • Veterinary products – Australian Pesticides & Veterinary Medicines Authority. Source: ACCC (2016). 

There is significant variation in the institutional architecture that applies across specialist safety regimes:

• some specialist regimes (for example, therapeutic goods and motor vehicle safety) operate under a single national law, but in others there are separate state- and territory- based laws or state/territory-based variations on the national law. 

• some specialist regimes (such as for therapeutic goods) have a single specialist national regulator responsible for enforcement, but for other specialist regimes each state or territory has responsibility for the administration and enforcement is that regime 

• in these latter cases, arrangements in states and territories vary. For example: – Victoria has established an independent regulator — Energy Safe Victoria — to deal with issues across electricity, gas, pipes and cabling, whereas most other jurisdictions have these responsibilities sitting within (or spread between) government departments – in Western Australia, NSW and the ACT, builder licensing, builder compliance and consumer protection sit within the one agency, whereas in Queensland builder licensing and compliance sit within the Building and Construction Commission and consumer protection sits within the Office of Fair Trading.

These variations may reflect the different nature of the products, services or activities being regulated and/or historical approaches to governance and institutional design, or different resource availability, in different jurisdictions. 

INFORMATION REQUEST 

The Commission would welcome comprehensive information on the specialist consumer safety regulatory regimes that lie outside the ACL and the regulators responsible for administering those regimes in and across jurisdictions in Australia. What are the rationales for the delineation of enforcement responsibilities under the different regimes?  

Some potential problems and issues 

Whatever the reasons for these different institutional designs, the architecture of the specialist safety regulatory regimes and their interaction with the ACL raise several issues for the study, both in relation to the effectiveness of the ACL and of the specialist regimes themselves. Some changes in the market, including the growth in ‘bundled’ products, Internet sales and the increasingly national nature of markets, may also have ramifications for how consumer product safety is and should be regulated. (Again, the following set of issues is not intended to be exhaustive, and participants are invited to submit views and  evidence on these or other concerns or challenges in relation to the specialist regulatory regimes and their interaction with the ACL.) 

Complexities associated with multiple regulators 

The multiple regulator model for the ACL together with the myriad of specialist safety regimes and their regulators means that many consumer products are potentially subject to regulation by a number of regulators, and that any particular safety issue could also be addressed by more than one regulator. 

Products that are subject to specialist safety regulation, such as electrical products, have always been subject to general consumer protection regulation too. However, products are increasingly being sold with a bundle of features and related services that mean their supplier potentially needs to comply with multiple fields of regulation and multiple regulators. For example, a manufacturer or supplier of an Internet-enabled fridge sold on finance or with an energy plan might need to deal with the regulations of the Australian Communication and Media Authority, a specialist regulator, a state or territory ACL regulator and/or the ACCC and ASIC. 

Consumers will not always be familiar with which regulator is best placed to deal with their product safety concerns. In those cases, they may well first bring their concerns for a ‘specialist’ product to a Commonwealth, state or territory ACL regulator with responsibility for general consumer products. Alternatively, they may bring their concerns about a general product to a regulator of a specialist safety regime. 

There are a number of examples where there is scope for uncertainty around which regulator or regulators are responsible for a consumer safety issue. For example, the Australian Retailers Association submission to the CAANZ review noted:

Recent ‘hover board’ cases in the 2014 Christmas period exemplified the confusion and lack of consistency across States and Territories. ... for [ARA] retailers and for the ARA there was confusion on which jurisdiction was doing what and on what manufacturer or product type. (ARA 2016, p. 12)

Recent regulatory actions in relation to a brand of washing machines (box 5) also exemplify the complexities that can arise for consumers and industry around which regulator has primary responsibility for incidents of non-compliance, where both ACL and specialist safety regulation applies. 

Box 5 Product safety recall — specialist and ACL regulator involvement 

The case of Samsung washing machines is an example of an electrical safety issue involving specialist regulators raising broader issues about the interaction of safety recall remedies and consumer guarantees. NSW Fair Trading is leading a recall, in its capacity as the NSW electrical safety regulator, and working closely with the ACCC to address safety concerns associated with six models of Samsung top loader washing machines that were sold nationally between 2010 and 2013. The affected units have an internal fault where condensation can penetrate an electrical connector causing deterioration which may in turn cause a fire. Samsung continues to work with regulators on the recall and, in September 2015, issued a media statement clarifying that consumers are entitled to refunds or replacement for recalled washing machines, following reports that some consumers were only offered a repair. Regulators are advising consumers that where there is a major safety failure in breach of the consumer guarantee of acceptable quality, consumers have a choice of remedy, which is not overtaken by the electrical safety recall. Source: CAANZ (2016a). 

Examples such as these illustrate some of the challenges for regulators in ensuring that consumers, and indeed suppliers, sufficiently understand the delineation of responsibilities among ACL and other regulators, and that consumer problems are dealt with by the most appropriate regulator (or regulators). 

A threshold question is how significant or problematic are the challenges posed by product complexity and bundling for consumer safety regulation. 

INFORMATION REQUEST 

What challenges do product complexity and bundling, and overlapping regulation, pose for ACL regulators, specialist safety regime regulators, businesses and consumers? What are some current examples of particular concern? How significant are these challenges? Does the availability of alternative avenues of regulating particular products assist ACL or specialist safety regulators in protecting consumers? 

To the extent that there are potentially significant problems, good communication between regulators would be one way to help ensure consumer protection does not ‘fall between the cracks’ or suffer from undue regulatory complexity or inefficient enforcement. This would require that regulators of specialist safety regimes and ACL regulators communicate with each other effectively about how responsibility should be allocated to deal with an unsafe product — either to ensure it is effectively dealt with where it is the responsibility of both regimes or to ensure that consumer concerns are referred to the whichever is the most appropriate ACL or specialist regulator of that product. It might also require cooperation in enforcement efforts, so that a ‘lead’ regulator, when meeting with a relevant supplier, would seek to ensure compliance with all relevant regulations, including those of other specialist safety regimes. 

This might be achieved through protocols for communication and cooperation (as between ACL regulators, for example). The Commission understands that officials in regulators of specialist safety regimes already communicate and cooperate with other specialist safety regulators or with ACL regulators (and vice versa) to some extent, albeit often informally. Since the inception of the ACL, the CAANZ implementation progress reports suggest that ACL regulators have put considerable effort into developing and formalising effective processes for communication and cooperation among themselves, and for the coordination of their regulatory efforts where needed. An issue is whether there is a need for similar, formal provisions between ACL regulators and regulators of specialist safety regimes. 

Another means of achieving the required communication and coordination may be through amalgamating ACL and some safety regime regulatory functions, and ‘internalising’ lines of communication and cooperation in this way. This model is evident in the organisation of, for example, the NSW Office of Fair Trading (which effectively embraces building, electricity and gas regulation responsibilities too). 

A more general issue is whether there is scope to improve enforcement of specialist safety regulation and/or general consumer protection regulation by altering any of the delineations of enforcement responsibilities, whether within or across regimes or jurisdictions. 

INFORMATION REQUEST 

Are current protocols for communication, cooperation and coordination between regulators of specialist safety regimes and ACL regulators effective in dealing with consumer concerns where regulators in both regimes have responsibility for consumer protection? In particular: • Are those protocols effective in ensuring that consumer concerns about product safety received by one regulator are effectively directed to the most appropriate (ACL or specialist safety regime) regulator? • Are there examples of especially good or poor interaction between ACL and specialist regulators, and what lessons might these provide to improve interaction between ACL and specialist safety regime regulators? 

What changes to current arrangements are needed to achieve effective communication, cooperation and coordination of consumer protection regulation among regulators of ACL and specialist safety regulatory regimes? 

Can formal protocols for communication and cooperation provide effective channels or are broader organisational changes (such as co-location or amalgamation of regulatory functions) needed? 

Regulatory variations at the state and territory level 

In some specialist safety areas, variations in the laws between jurisdictions reduce the scope for consistent national responses by regulators of the ACL or specialist safety regimes — such as occurred with hoverboard electric self-balancing scooters (where some of the recharging units have caught fire). For example, different jurisdictions have different ‘minimum voltage thresholds’ in their electrical appliance safety laws. Thus, a solution in one state or territory (to a problem that may arise in all jurisdictions) may not be feasible under the electricity safety laws of other jurisdictions. 

This raises the question of whether there is or remains a valid rationale for variations in consumer product safety laws at the state and territory level, particularly given the increasingly national (and international) nature of markets. A number of specialist product safety areas operate under uniform national legislation, and the ACL itself is an example of the replacement of different state and territory laws with a nationally uniform law. In its 2008 Consumer Policy Framework report, the Commission recommended a review and reform program for industry-specific consumer regulation that would, among other things, identify areas where unnecessary divergences in requirements have significant costs and consider means of reducing these costs, including the case for transferring policy to the Australian Government. While the Commission understands that there have since been some attempts to achieve nationally uniform approaches in some remaining areas of state and territory difference, notably electrical safety, there is at present no agreement on the need for, and means of attaining, a nationally uniform approach in that area. 

INFORMATION REQUEST 

What progress has been made in removing unnecessary and costly divergences in regulatory requirements between industry-specific state and territory consumer protection regimes since 2008? Where progress has been limited, why? Is there a case for pursuing a ‘one law’ model for areas of consumer product safety regulation, or other means of reducing the costs of variations, where there are currently state variations? If so, what areas should be priorities for review? 

Other market developments 

As noted above, the growth in product bundling and the increasingly national (and international) nature of markets pose some challenges for how consumer product safety is regulated generally. 

A further relevant development is the growth in direct (online) purchasing. Many specialist safety regimes have pre-market certification of products as a core element of their consumer protection role, but this is becoming harder to achieve where consumers or small suppliers acquire goods directly from abroad by purchasing over the Internet. In such cases, products can end up in consumers’ hands having bypassed the usual scrutiny by regulators of specialist safety regimes. Where products subsequently fall short of explicit or implied product safety or quality expectations, it is likely that consumer complaints would be directed to general ACL regulators. Either way, the lack of a domestic ‘supplier’ of the product may make it difficult for regulators to address. 

INFORMATION REQUEST 

What are the ramifications of changes in products and nature of sales (including the move to online sales) for the enforcement of consumer product regulation? Are there other models that could provide lessons for the approach adopted in Australia?

Data Protection Frameworks

The Victorian Commissioner for Privacy and Data Protection (CPDP) has released the Victorian Protective Data Security Framework (VPDSF) under the Privacy and Data Protection Act 2014 (Vic).

The Framework is to provide

direction to Victorian public sector agencies or bodies on their data security obligations. Reflecting the sector’s unique operating requirements, it will build security risk management capability and maturity through the use of existing risk management principles and guidelines. ... 

The VPDSF has been developed to establish, monitor and assure security of information within the Victorian Government.

Consistent with the Victorian  Information Privacy Principle 4 (Data security) state entities are to "take reasonable steps to protect the personal information ... from misuse and loss and from unauthorised access, modification or disclosure", using the VPDSF "as the primary reference point in complying with IPP 4.1".

The VPDSF states

The VPDSF has been developed to help Victorian public sector organisations:

• identify information and determine ownership 

• assess the value of information 

• identify and manage protective data security risks 

• apply security measures 

• create a positive security culture 

• mature their protective data security capability.

The VPDSF provides your organisation with a minimum set of protective data security requirements across governance and the four protective security domains. These requirements, coupled with assurance actions, are designed to assist you mitigate information security risks. Where Victorian organisations handle information of national interest, the Protective Security Policy Framework (PSPF) requirements remain mandatory and supersede any obligations set out in the VPDSF. The VPDSF should be read in conjunction with existing legislative obligations. Where relevant legislation mandates lower standards than those of the VPDSF, you are encouraged to meet the minimum requirements of the VPDSF.

Care.Data Canned

The UK Health Minister has announced the abandonment of the problematical care.data health big data initiative, pertinent for the Australian MyHR population-scale electronic health data program.

The announcement states

The National Data Guardian Review ... recommends that the government consider the future of the care.data programme, as the consent and opt-out model proposed by the review goes further than the approach that was planned for care.data and its pathfinder areas. 

In light of Dame Fiona’s recommendations, NHS England has taken the decision to close the care.data programme. However, the government and the health and care system remain absolutely committed to realising the benefits of sharing information, as an essential part of improving outcomes for patients. Therefore this work will now be taken forward by the National Information Board, in close collaboration with the primary care community, in order to retain public confidence and to drive better care for patients.

The decision reflects substantive criticisms by privacy activists such as medconfidential - highlighted in several of my conference papers over the past two years - and reports by the UK Care Quality Commission (on a review of data security in the NHS) and Dame Fiona Caldicott as National Data Guardian for Health and Care (on data security and consent).

The two reviews were launched late last year to develop new data security standards, devise a method of testing compliance with the new standards and - importantly - propose a new consent/opt-out model for data sharing in health and social care. Caldicott's criticisms are unsurprising, given findings in her 2013 report noted here.

The CQC report Safe data, safe care: Data security review report found

•  There was evident widespread commitment to data security, but staff at all levels faced significant challenges in translating their commitment into reliable practice. 
• Where patient data incidents occurred they were taken seriously. However, staff did not feel that lessons were always learned or shared across their organisations. 
• The quality of staff training on data security was very varied at all levels, right up to Senior Information Risk Owners (SIROs) and Caldicott Guardians. 
• Data security policies and procedures were in place at many sites, but day-to-day practice did not necessarily reflect them. Benchmarking with other organisations was all but absent. 
• There was no consistent culture of learning from others, and we found little evidence of external checking or validation of data security arrangements. 
• The use of technology for recording and storing patient information away from paper-based records is growing. This is solving many data security issues but, if left unimproved, increases the risk of more serious, large-scale data losses. 
• Data security systems and protocols were not always designed around the needs of frontline staff. This leads to staff developing potentially insecure workarounds in order to deliver good timely care to patients – this issue was especially evident in emergency medicine settings. 
• As integrated patient care develops, improvements must be made to the ease and safety of sharing data between services. 

It recommends

1. Leadership The leadership of every organisation should demonstrate clear ownership and responsibility for data security, just as it does for clinical and financial management and accountability. 

2. Information, tools and training All staff should be provided with the right information, tools, training and support to allow them to do their jobs effectively while still being able to meet their responsibilities for handling and sharing data safely. 

3. IT systems IT systems and all data security protocols should be designed around the needs of patient care and frontline staff to remove the need for workarounds, which in turn introduce risks into the system. 

4. Outdated technology Computer hardware and software that can no longer be supported should be replaced as a matter of urgency. 

5. Audit and validation Arrangements for internal data security audit and external validation should be reviewed and strengthened to a level similar to those assuring financial integrity and accountability. 

6. CQC assessment We'll amend our assessment framework and inspection approach to include assurance that appropriate validation against the new data security standards have been carried out, and make sure inspectors are appropriately trained. 

The NDG Review of Data Security, Consent and Opt-Outs [PDF]  comments

Everyone who uses health and care services should be able to trust that their personal confidential data is protected. People should be assured that those involved in their care, and in running and improving services, are using such information appropriately and only when absolutely necessary. Unfortunately trust in the use of personal confidential data has been eroded and steps need to be taken to demonstrate trustworthiness and ensure that the public can have confidence in the system. 

At the beginning of September 2015, the Secretary of State for Health asked me, as the National Data Guardian, to work alongside the Care Quality Commission (CQC), and carry out an intensive Review to recommend: new data security standards, a method for testing compliance against these standards, and of their personal confidential data being used. The model does not supersede any of the existing Caldicott principles. Patients and service users should not be surprised that an appropriate professional has access to information about them when they seek care, and should be confident that only the minimum amount of information needed to provide that is shared. a new consent or opt-out model for data sharing in relation to patient confidential data. 

This Review follows two previous reviews. In 1996-7,  I chaired a Review on the use of patient identifiable data where we recommended six principles for the protection of people’s confidentiality, which became known as the ‘Caldicott principles’. In 2013, I led the Information Governance Review and we recommended an additional ‘Caldicott principle’ setting out that the duty to share information can be as important as the duty to protect patient confidentiality.  

 I agreed to undertake this third Review for two reasons. Firstly, there has been little positive change in the use of data across health and social care since the 2013 Review and this has been frustrating to see. Secondly, because I believe we have a very significant opportunity now to improve the use of data in people’s interests, and ensure transparency for the public about when their data will be used and when they can opt out of such usage.

I have worked alongside CQC, which was asked to review the current approaches to data security in NHS organisations that provide services. Its work has been invaluable in developing an evidence base for the new data security standards which are set out in this report. The data security standards are intended to be applied across all health and social care organisations. Further work will be needed to establish the validity of the new data security standards for organisations providing social care, as this was not included in the CQC review 

Data security is also integral to the second part of this Review: designing a model for information-sharing. The trust needed for effective information-sharing cannot be ensured without secure systems and easily understood explanations of how information and privacy are protected. I have proposed a new consent/ opt-out model that describes clearly when information is used, and when patients have a choice to opt out of their personal confidential data being used. The model does not supersede any of the existing Caldicott principles. Patients and service users should not be surprised that an appropriate professional has access to information about them when they seek care, and should be confident that only the minimum amount of information needed to provide that is shared.

I submitted this Review to the Government in March 2016. Since then I have taken the opportunity to update some references, but have not made any changes of substance. 

It was a short Review and significant work will need to be undertaken to implement the recommendations, which should include a full and comprehensive public consultation. A key aspect of this work must be a dialogue with the public. We owe it to citizens to enable them to understand data usage as fully as they wish, and ensure that information about how data is accessed, by whom, and for what purposes, is available. This work is part of a wider dialogue that should be conducted on data use across different sectors. Health and social care data, although unique, cannot be isolated from that discussion.

Caldicott makes the following recommendations, which we might hope will be noted in Australia

R 1: The leadership of every organisation should demonstrate clear ownership and responsibility for data security, just as it does for clinical and nancial management and accountability. 

R 2: A redesigned IG Toolkit should embed the new standards, identify exemplar organisations to enable peer support and cascade lessons learned. Leaders should use the IG Toolkit to engage staff and build professional capability, with support from national workforce organisations and professional bodies. 

R 3: Trusts and CCGs should use an appropriate tool to identify vulnerabilities such as dormant accounts, default passwords and multiple logins from the same account. These tools could also be also used by the IT companies that provide IT systems to GPs and social care providers. 

R 4: All health and social care organisations should provide evidence that they are taking action to improve cyber security, for example through the ‘Cyber Essentials’ scheme. The ‘Cyber Essentials’ scheme should be tested in a wider number of GP practices, Trusts and social care settings. 

R 5: NHS England should change its standard nancial contracts to require organisations to take account of the data security standards. Local government should also include this requirement in contracts with the independent and voluntary sectors. Where a provider does not meet the standards over a reasonable period of time, a contract should not be extended. 

R 6: Arrangements for internal data security audit and external validation should be reviewed and strengthened to a level similar to those assuring nancial integrity and accountability. 

R 7: CQC should amend its inspection framework and inspection approach for providers of registered health and care services to include assurance that appropriate internal and external validation against the new data security standards have been carried out, and make sure that inspectors involved are appropriately trained. HSCIC should use the redesigned IG Toolkit to inform CQC of ‘at risk’ organisations, and CQC should use this information to prioritise action. 

R 8: HSCIC should work with the primary care community to ensure that the redesigned IG Toolkit provides sufficient support to help them to work towards the standards. HSCIC should use the new toolkit to identify organisations for additional support, and to enable peer support. HSCIC should work with regulators to ensure that there is coherent oversight of data security across the health and care system. 

R 9: Where malicious or intentional data security breaches occur, the Department of Health should put harsher sanctions in place and ensure the actions to redress breaches proposed in the 2013 Review are implemented effectively. 

R 10: The case for data sharing still needs to be made to the public, and all health, social care, research and public organisations should share responsibility for making that case. 

R 11: There should be a new consent/ opt-out model to allow people to opt out of their personal confidential data being used for purposes beyond their direct care. This would apply unless there is a mandatory legal requirement or an overriding public interest. 

R 12: HSCIC should take advantage of changing its name to NHS Digital to emphasise to the public that it is part of the NHS ‘family’, while continuing to serve the social care and health system as a whole. 

Recommendation 13: The Government should consider introducing stronger sanctions to protect anonymised data. This should include criminal penalties for deliberate and negligent re-identification of individuals. 

R 14: The forthcoming Information Governance Alliance’s guidance on disseminating health and social care data should explicitly refer to the potential legal, financial, and reputational consequences of organisations failing to have regard to the ICO’s Anonymisation Code of Practice by re-identifying individuals. 

R 15: People should continue to be able to give their explicit consent, for example to be involved in research. 

R 16: The Department of Health should look at clarifying the legal framework so that health and social care organisations can access the information they need to validate invoices, only using personal confidential data when that is essential. 

R 17: The Health Research Authority should provide the public with an easily digestible explanation of the projects that use personal confidential data and have been approved following advice from the Confidentiality Advisory Group. 

R 18: The Health and Social Care Information Centre (HSCIC) should develop a tool to help people understand how sharing their data has bene ted other people. This tool should show when personal confidential data collected by HSCIC has been used and for what purposes. 

R 19: The Department of Health should conduct a full and comprehensive formal public consultation on the proposed standards and opt-out model. Alongside this consultation, the opt-out questions should be fully tested with the public and professionals. 

R 20: There should be ongoing work under the National Information Board looking at the outcomes proposed by this consultation, and how to build greater public trust in data sharing for health and social care.

Militant Democracy

'Militant Democracy: An Alien Concept For Australian Constitutional Law?' by Svetlana Tyulkina in (2016) 36(2) Adelaide Law Review 517 comments

This article presents an overview of the development and growth of the concept of militant democracy in contemporary constitutional theory and practice, and its relevance to Australia. Militant democracy refers to a form of constitutional democracy authorised to protect its continued existence as democracy by pre-emptively restricting the exercise of civil and political freedoms. Initially, militant democracy focused on electoral integrity, adopting measures such as the prohibition of allegedly undemocratic political parties. However, in recent years militant democracy has expanded to include policies aimed at addressing threats such as religious fundamentalism and global terrorism. This article examines the extent to which Australia can be said to be a militant democracy. It investigates how militant democracy is manifesting itself in contemporary Australian democracy by analysing provisions of the Australian Constitution, relevant legislation and jurisprudence of the High Court of Australia. The article attempts to reconceptualise certain features of the Australian constitutional system through the lens of the militant democracy concept.

Tyulkina states

Over the past few decades militant democracy has emerged as an important way of understanding constitutional systems around the world. Generally speaking, militant democracy is a form of constitutional democracy authorised to protect its continued existence as a democracy by pre-emptively restricting the exercise of civil and political freedoms. Initially militant democracy focused on electoral integrity, adopting measures such as the prohibition of allegedly undemo- cratic political parties. However, in recent years militant democracy has expanded to include policies aimed at addressing, for example, the threats of religious fundamentalism and global terrorism. 

The concept of militant democracy provides a different perspective to the liberal view of the state. Under the latter view, democracy is understood as an accommodating political system premised on there being a plurality of ideas and opinions. However, liberalism presents a serious dilemma for democracy: how should it defend itself against non-democratic political collective or individual actors? The concept of militant democracy was introduced to legal scholarship and constitutional practice as an attempt to address this challenge. 

Militant democracy is widely used to better understand constitutional systems and evaluate and explore their practical operation, particularly in relation to the actions of the state directed at self-defence from internal threats. It is especially useful where it provides a rationale for constitutional concepts and approaches that might otherwise be considered outside the liberal conception of democracy. An example of this is the most obvious dilemma of any democracy — how to protect democracy from its potential ‘enemies’ and remain true to itself. Despite the importance of the idea of militant democracy and its wide use in constitutional scholarship, the concept’s application has not been investigated in respect of the Australian Constitution. This article fills this gap by explaining and developing the concept, and by determining whether and to what extent it applies to Australian constitutional law. 

This article first focuses in Part II on the concept of militant democracy and its growth in contemporary constitutional theory and practice. It argues that all democracies are militant to some extent, but warns that the concept should not be idealised, as its practical application can be problematic. Part III then examines the modern interpretation and application of this concept outside Australia. It will also discuss how the concept of militant democracy is being applied to address the ‘new’ types of threats faced by democracies. This discussion lays the background for Part IV, where the relevance and potential application of militant democracy in the Australian context is explored. This analysis draws upon the text of the Australian Constitution, legislation for the proscription of unlawful associations and examples from the constitutional jurisprudence of the High Court of Australia. Part V then concludes that despite the common perception of the Australian Constitution as a liberal document, militant democracy does have an important role to play in understanding the Constitution and explaining the way it operates.

EU Robots

The European Parliament Committee on Legal Affairs Draft Report on Civil Law Rules on Robotics (31 May 2016) features the following Explanatory Statement

Introduction 

1. whereas from Mary Shelley's Frankenstein's Monster to the classical myth of Pygmalion, through the story of Prague's Golem to the robot of Karel Čapek, who coined the word, people have fantasised about the possibility of building intelligent machines, more often than not androids with human features; 

2. whereas now that humankind stands on the threshold of an era when ever more sophisticated robots, bots, androids and other manifestations of artificial intelligence ("AI") seem poised to unleash a new industrial revolution, which is likely to leave no stratum of society untouched, it is vitally important for the legislature to consider all its implications; 

3. whereas between 2010 and 2014 the average increase in sales of robots stood at 17% per year and in 2014 sales rose by 29%, the highest year-on-year increase ever, with automotive parts suppliers and the electrical/electronics industry being the main drivers of the growth; whereas annual patent filings for robotics technology have tripled over the last decade; 

4. whereas in the short to medium term robotics and AI promise to bring benefits of efficiency and savings, not only in production and commerce, but also in areas such as transport, medical care, education and farming, while making it possible to avoid exposing humans to dangerous conditions, such as those faced when cleaning up toxically polluted sites; whereas in the longer term there is potential for virtually unbounded prosperity; 

5. whereas at the same time the development of robotics and AI may result in a large part of the work now done by humans being taken over by robots, so raising concerns about the future of employment and the viability of social security systems if the current basis of taxation is maintained, creating the potential for increased inequality in the distribution of wealth and influence; 

6. whereas the causes for concern also include physical safety, for example when a robot's code proves fallible, and the potential consequences of system failure or hacking of connected robots and robotic systems at a time when increasingly autonomous applications come into use or are impending whether it be in relation to cars and drones or to care robots and robots used for maintaining public order and policing; 

7. whereas many basic questions of data protection have already become the subject of consideration in the general contexts of the internet and e-commerce, but whereas further aspects of data ownership and the protection of personal data and privacy might still need to be addressed, given that applications and appliances will communicate with each other and with databases without humans intervening or possibly without their even being aware of what is going on; 

8. whereas the 'soft impacts' on human dignity may be difficult to estimate, but will still need to be considered if and when robots replace human care and companionship, and whereas questions of human dignity also can arise in the context of 'repairing' or enhancing human beings; 

9. whereas ultimately there is a possibility that within the space of a few decades AI could surpass human intellectual capacity in a manner which, if not prepared for, could pose a challenge to humanity's capacity to control its own creation and, consequently, perhaps also to its capacity to be in charge of its own destiny and to ensure the survival of the species; 

10. whereas several foreign jurisdictions, such as the US, Japan, China and South Korea, are considering, and to a certain extent have already taken, regulatory action with respect to robotics and AI, and whereas some Member States have also started to reflect on possible legislative changes in order to take account of emerging applications of such technologies; 

11. whereas European industry could benefit from a coherent approach to regulation at European level, providing predictable and sufficiently clear conditions under which enterprises could develop applications and plan their business models on a European scale while ensuring that the EU and its Member States maintain control over the regulatory standards to be set, so as not to be forced to adopt and live with standards set by others, that is to say the third states which are also at the forefront of the development of robotics and AI; 

General principles 

12. whereas, until such time, if ever, that robots become or are made self-aware, Asimov's Laws must be regarded as being directed at the designers, producers and operators of robots, since those laws cannot be converted into machine code; 

13. whereas, nevertheless, a series of rules, governing in particular liability and ethics and reflecting the intrinsically European and humanistic values that characterise Europe's contribution to society, are necessary; 

14. whereas the European Union could play an essential role in establishing basic ethical principles to be respected in the development, programming and use of robots and AI and in the incorporation of such principles into European regulations and codes of conduct, with the aim of shaping the technological revolution so that it serves humanity and so that the benefits of advanced robotics and AI are broadly shared, while as far as possible avoiding potential pitfalls; 

15. whereas a gradualist, pragmatic cautious approach of the type advocated by Jean Monnet1 should be adopted for Europe; 

16. whereas it is appropriate, in view of the stage reached in the development of robotics and AI, to start with civil liability issues and to consider whether a strict liability approach based on who is best placed to insure is not the best starting point; 

Liability 

17. whereas, thanks to the impressive technological advances of the last decade, not only are today's robots able to perform activities which used to be typically and exclusively human, but the development of autonomous and cognitive features – e.g. the ability to learn from experience and take independent decisions – has made them more and more similar to agents that interact with their environment and are able to alter it significantly; whereas, in such a context, the legal responsibility arising from a robot’s harmful action becomes a crucial issue; 

18. whereas a robot's autonomy can be defined as the ability to take decisions and implement them in the outside world, independently of external control or influence; whereas this autonomy is of a purely technological nature and its degree depends on how sophisticated a robot's interaction with its environment has been designed to be; 

19. whereas the more autonomous robots are, the less they can be considered simple tools in the hands of other actors (such as the manufacturer, the owner, the user, etc.); whereas this, in turn, makes the ordinary rules on liability insufficient and calls for new rules which focus on how a machine can be held – partly or entirely – responsible for its acts or omissions; whereas, as a consequence, it becomes more and more urgent to address the fundamental question of whether robots should possess a legal status; 

20. whereas, ultimately, robots' autonomy raises the question of their nature in the light of the existing legal categories – of whether they should be regarded as natural persons, legal persons, animals or objects – or whether a new category should be created, with its own specific features and implications as regards the attribution of rights and duties, including liability for damage; 

21. whereas under the current legal framework robots cannot be held liable per se for acts or omissions that cause damage to third parties; 

22. whereas the existing rules on liability cover cases where the cause of the robot’s act or omission can be traced back to a specific human agent such as the manufacturer, the owner or the user and where that agent could have foreseen and avoided the robot’s harmful behaviour; whereas, in addition, manufacturers, owners or users could be held strictly liable for acts or omissions of a robot if, for example, the robot were categorised as a dangerous object or if it fell within product liability rules; 

23. whereas in the scenario where a robot can take autonomous decisions, the traditional rules will not suffice to activate a robot's liability, since they would not make it possible to identify the party responsible for providing compensation and to require this party to make good the damage it has caused; 

24. whereas the shortcomings of the current legal framework are apparent in the area of contractual liability insofar as machines designed to choose their counterparts, negotiate contractual terms, conclude contracts and decide whether and how to implement them make the traditional rules inapplicable, which highlights the need for new, more up-to- date ones; 

25. whereas, as regards non-contractual liability, Council Directive 85/374/EEC of 25 July 1985 can only cover damage caused by a robot's manufacturing defects and on condition that the injured person is able to prove the actual damage, the defect in the product and the causal relationship between damage and defect (strict liability or liability without fault); 

26. whereas, notwithstanding the scope of the Directive 85/374/EEC, the current legal framework would not be sufficient to cover the damage caused by the new generation of robots, insofar as they can be equipped with adaptive and learning abilities entailing a certain degree of unpredictability in their behaviour, since these robots would autonomously learn from their own, variable experience and interact with their environment in a unique and unforeseeable manner; 

General principles concerning the development of robotics and artificial intelligence for civil use  

1. Calls on the Commission to propose a common European definition of smart autonomous robots and their subcategories by taking into consideration the following characteristics of a smart robot:

• acquires autonomy through sensors and/or by exchanging data with its environment (inter-connectivity) and trades and analyses data 

• is self-learning (optional criterion) 

• has a physical support

• adapts its behaviours and actions to its environment; 

2. Considers that a system of registration of advanced robots should be introduced, and calls on the Commission to establish criteria for the classification of robots with a view to identifying the robots that would need to be registered; 

3. Underlines that many robotic applications are still in an experimental phase; welcomes the fact that more and more research projects are being funded with national and European money; calls on the Commission and the Member States to strengthen financial instruments for research projects in robotics and ICT; emphasises that sufficient resources need to be devoted to the search for solutions to the social and ethical challenges that the technological development and its applications raise; 

4. Asks the Commission to foster research programmes that include a mechanism for short-term verification of the outcomes in order to understand what real risks and opportunities are associated with the dissemination of these technologies; calls on the Commission to combine all its effort in order to guarantee a smoother transition for these technologies from research to commercialisation on the market; 

Ethical principles 

5. Notes that the potential for empowerment through the use of robotics is nuanced by a set of tensions or risks relating to human safety, privacy, integrity, dignity, autonomy and data ownership; 

6. Considers that a guiding ethical framework for the design, production and use of robots is needed to complement the legal recommendations of the report and the existing national and Union acquis; proposes, in the annex to the resolution, a framework in the form of a charter consisting of a code of conduct for robotics engineers, of a code for research ethics committees when reviewing robotics protocols and of model licences for designers and users; 

7. Points out that the guiding ethical framework should be based on the principles of beneficence, non-maleficence and autonomy, as well as on the principles enshrined in the EU Charter of Fundamental Rights, such as human dignity and human rights, equality, justice and equity, non-discrimination and non-stigmatisation, autonomy and individual responsibility, informed consent, privacy and social responsibility, and on existing ethical practices and codes; 

A European Agency 

8. Calls for the creation of a European Agency for robotics and artificial intelligence in order to provide the technical, ethical and regulatory expertise needed to support the relevant public actors, at both EU and Member State level, in their efforts to ensure a timely and well-informed response to the new opportunities and challenges arising from the technological development of robotics; 

9. Considers that the potential of robotics use and the present investment dynamics justify the European Agency being equipped with a proper budget and being staffed with regulators and external technical and ethical experts dedicated to the cross-sectorial and multidisciplinary monitoring of robotics-based applications, identifying standards for best practice, and, where appropriate, recommending regulatory measures, defining new principles and addressing potential consumer protection issues and systematic challenges; asks the Commission and the European Agency to report to the European Parliament on the latest developments in robotics on an annual basis; 

Intellectual property rights and the flow of data 

10. Notes that there are no legal provisions that specifically apply to robotics, but that existing legal regimes and doctrines can be readily applied to robotics while some aspects appear to need specific consideration; calls on the Commission to come forward with a balanced approach to intellectual property rights when applied to hardware and software standards, and codes that protect innovation and at the same time foster innovation; calls on the Commission to elaborate criteria for an ‘own intellectual creation’ for copyrightable works produced by computers or robots; 

11. Calls on the Commission and the Member States to ensure that, in the development of any EU policy on robotics, privacy and data protection guarantees are embedded in line with the principles of necessity and proportionality; calls, in this regard, on the Commission to foster the development of standards for the concepts of privacy by design and privacy by default, informed consent and encryption; 

12. Points out that the use of personal data as a 'currency' with which services can be 'bought' raises new issues in need of clarification; stresses that the use of personal data as a 'currency' must not lead to a circumvention of the basic principles governing the right to privacy and data protection; 

Standardisation, safety and security 

13. Calls on the Commission to continue to work on the international harmonisation of technical standards, in particular together with the European Standardisation Organisations and the International Standardisation Organisation, in order to avoid fragmentation of the internal market and to meet consumers’ concerns; asks the Commission to analyse existing European legislation with a view to checking the need for adaption in light of the development of robotics and artificial intelligence; 

14. Emphasises that testing robots in real-life scenarios is essential for the identification and assessment of the risks they might entail, as well as of their technological development beyond a pure experimental laboratory phase; underlines, in this regard, that testing of robots in real-life scenarios, in particular in cities and on roads, raises numerous problems and requires an effective monitoring mechanism; calls on the Commission to draw up uniform criteria across all Member States which individual Member States should use in order to identify areas where experiments with robots are permitted; 

Autonomous vehicles 

15. Considers that the automotive sector is in most urgent need of European and global rules to ensure the cross-border development of automated vehicles so as to fully exploit their economic potential and benefit from the positive effects of technological trends; emphasises that fragmented regulatory approaches would hinder implementation and jeopardise European competitiveness; notes that although current private international law rules on traffic accidents applicable within the EU do not need urgent modification to accommodate the development of autonomous vehicles, simplifying the current dual system for defining applicable law (based on Regulation (EC) No 864/2007 of the European Parliament and of the Council and the 1971 Hague Convention on the law applicable to traffic accidents) would improve legal certainty and limit possibilities for forum shopping; 

Care robots 

16. Points out that human contact is one of the fundamental aspects of human care; believes that replacing the human factor with robots could dehumanise caring practices; 

Medical robots 

17. Underlines the importance of appropriate training and preparation for doctors and care assistants in order to secure the highest degree of professional competence possible, as well as to protect patients' health; underlines the need to define the minimum professional requirements that a surgeon must meet in order to be allowed to use surgical robots; emphasises the special importance of training for users to allow them to familiarise themselves with the technological requirements in this field; draws attention to the rising trend towards self-diagnosis using a mobile robot which makes diagnoses and might take over the role of a doctor; 

Human repair and enhancement 

18. Notes the great potential of robotics in the field of repairing and compensating for damaged organs and human functions, but also the complex questions raised in particular by the possibilities of human enhancement; asks for the establishment of committees on robot ethics in hospitals and other health care institutions tasked with considering and assisting in resolving unusual, complicated ethical problems involving issues that affect the care and treatment of patients; calls on the Commission and the Member States to develop guidelines to aid in the establishment and functioning of such committees; 

Drones (RPAS) 

19. Stresses the importance of a European framework for remotely piloted aircraft systems (RPAS) to protect the safety, security and privacy of EU citizens, and calls on the Commission for a follow-up to the recommendations of the European Parliament resolution of 29 October 2015 on safe use of remotely piloted aircraft systems (RPAS), known as unmanned aerial vehicles (UAVs), in the field of civil aviation; 

Education and employment forecast 

20. Draws attention to the Commission's forecast that by 2020 Europe might be facing a shortage of up to 825 000 ICT professionals and that 90% of jobs will require at least basic digital skills; welcomes the Commission’s initiative of proposing a roadmap for the possible use and revision of a Digital Competence framework and descriptors of Digital Competences for all levels of learners; 

21. Considers that getting more young women interested in a digital career and placing more women in digital jobs would benefit the digital industry, women themselves and Europe's economy; calls on the Commission and the Member States to launch initiatives in order to support women in ICT and to boost their e-skills; 

22. Calls on the Commission to start monitoring job trends more closely, with a special focus on the creation and loss of jobs in the different fields/areas of qualification in order to know in which fields jobs are being created and those in which jobs are being destroyed as a result of the increased use of robots; 

23. Bearing in mind the effects that the development and deployment of robotics and AI might have on employment and, consequently, on the viability of the social security systems of the Member States, consideration should be given to the possible need to introduce corporate reporting requirements on the extent and proportion of the contribution of robotics and AI to the economic results of a company for the purpose of taxation and social security contributions; takes the view that in the light of the possible effects on the labour market of robotics and AI a general basic income should be seriously considered, and invites all Member States to do so; 

Liability 

24. Considers that robots' civil liability is a crucial issue which needs to be addressed at EU level so as to ensure the same degree of transparency, consistency and legal certainty throughout the European Union for the benefit of consumers and businesses alike; 

25. Asks the Commission to submit, on the basis of Article 114 of the Treaty on the Functioning of the European Union, a proposal for a legislative instrument on legal questions related to the development of robotics and artificial intelligence foreseeable in the next 10-15 years, following the detailed recommendations set out in the annex hereto; further calls on the Commission, once technological developments allow the possibility for robots whose degree of autonomy is higher than what is reasonably predictable at present to be developed, to propose an update of the relevant legislation in due time; 

26. Considers that, whatever legal solution it applies to robots' liability in cases other than those of damage to property, the future legislative instrument should in no way restrict the type or the extent of the damages which may be recovered, nor should it limit the forms of compensation which may be offered to the aggrieved party, on the sole grounds that damage is caused by a non-human agent; 

27. Considers that the future legislative instrument should provide for the application of strict liability as a rule, thus requiring only proof that damage has occurred and the establishment of a causal link between the harmful behaviour of the robot and the damage suffered by the injured party; 

28. Considers that, in principle, once the ultimately responsible parties have been identified, their liability would be proportionate to the actual level of instructions given to the robot and of its autonomy, so that the greater a robot's learning capability or autonomy is, the lower other parties' responsibility should be, and the longer a robot's 'education' has lasted, the greater the responsibility of its 'teacher' should be; notes, in particular, that skills resulting from 'education' given to a robot should be not confused with skills depending strictly on its self-learning abilities when seeking to identify the person to whom the robot's harmful behaviour is actually due; 

29. Points out that a possible solution to the complexity of allocating responsibility for damage caused by increasingly autonomous robots could be an obligatory insurance scheme, as is already the case, for instance, with cars; notes, nevertheless, that unlike the insurance system for road traffic, where the insurance covers human acts and failures, an insurance system for robotics could be based on the obligation of the producer to take out an insurance for the autonomous robots it produces; 

30. Considers that, as is the case with the insurance of motor vehicles, such an insurance system could be supplemented by a fund in order to ensure that reparation can be made for damage in cases where no insurance cover exists; calls on the insurance industry to develop new products that are in line with the advances in robotics; 

31. Calls on the Commission, when carrying out an impact assessment of its future legislative instrument, to explore the implications of all possible legal solutions, such as:

a) establishing a compulsory insurance scheme whereby, similarly to what already happens with cars, producers or owners of robots would be required to take out insurance cover for the damage potentially caused by their robots; 

b) ensuring that a compensation fund would not only serve the purpose of guaranteeing compensation if the damage caused by a robot was not covered by an insurance – which would in any case remain its primary goal – but also that of allowing various financial operations in the interests of the robot, such as investments, donations or payments made to smart autonomous robots for their services, which could be transferred to the fund; 

c) allowing the manufacturer, the programmer, the owner or the user to benefit from limited liability insofar as smart autonomous robots would be endowed with a compensation fund – to which all parties could contribute in varying proportions – and damage to property could only be claimed for within the limits of that fund, other types of damage not being subject to such limits; 

d) deciding whether to create a general fund for all smart autonomous robots or to create an individual fund for each and every robot category, and whether a contribution should be paid as a one-off fee when placing the robot on the market or whether periodic contributions should be paid during the lifetime of the robot; 

e) ensuring that the link between a robot and its fund would be made visible by an individual registration number appearing in a specific EU register, which would allow anyone interacting with the robot to be informed about the nature of the fund, the limits of its liability in case of damage to property, the names and the functions of the contributors and all other relevant details; 

f) creating a specific legal status for robots, so that at least the most sophisticated autonomous robots could be established as having the status of electronic persons with specific rights and obligations, including that of making good any damage they may cause, and applying electronic personality to cases where robots make smart autonomous decisions or otherwise interact with third parties independently; 

International aspects 

32. Notes the need also to consider amendments to international agreements such as the Vienna Convention on Road Traffic and the Hague Traffic Accident Convention; 

33. Strongly encourages international cooperation in setting regulatory standards under the auspices of the United Nations; 

34. Points out that the restrictions and conditions laid down in the 'Dual use regulation' on the trade in dual-use items – goods, software and technology that can be used for both civilian and military applications and/or can contribute to the proliferation of weapons of mass destruction – should apply to applications of robotics as well;