Political Economy

'Law and Political Economy' (LSE Legal Studies Working Paper No 7/2018) by Michael Wilkinson and Hjalte Lokdam comments

'Law and Political Economy’ surveys recent approaches to the study of phenomena at the intersection of law, politics and the economy. These take an interdisciplinary perspective, viewing markets as fields of social power that are not spontaneous but created and reproduced in the meeting of legal norms, political action and economic activity. Through regulating economic relationships, the politico-legal order constitutes and reconstitutes the power relations that make up society. This, in turn, is driven by the formation of class, sectoral and geopolitical interests, as well as ideological convictions, which harness political and legal authority. We present these inter-related processes through exploring contemporary debates on inequality, inter-personal market relations, the relation between the state and market, and the effects of economic integration and globalisation on democracy and political self-determination.

Geospatial Information

The excellent ‘Rights in Geospatial Information: A Shifting Legal Terrain’ by Isabella Alexander and Marlena Jankowska in (2018) 41(3) Melbourne University Law Review comments

The growing significance of ‘big data’ raises new issues for copyright law, not least when the data is presented visually or graphically to generate new and useful information and insights. One such example is the case of digital maps. Maps and written descriptions of geographic information have long presented challenges for the law of copyright, most particularly because they are perceived as factual compilations. The appearance of maps, and the information they contain, has changed considerably over time. However, the last few years has seen an extraordinary transformation in the methods and practices of collecting, storing, representing and disseminating geospatial data and information. This article considers how copyright law applied in the analogue era to regulate the production and dissemination of geographic information, the effects of new technologies and digitisation on how law applies to geospatial data and associated products and systems, and whether either a database right or some other form of protection is required.

 The authors argue

Australia lies on the fastest-moving tectonic plate on Earth, floating northeast at a rate of about seven centimetres a year. This means that geodesists are faced with the continuing challenge of keeping the coordinates of maps up to date. The appearance of maps, and the information contained therein, has changed over time, influenced by the particular purposes they are designed to serve, developments in adjacent technological and scientific fields, as well as cultural, economic and ideological factors. Until recently, these changes have occurred at rather the same pace as continental drift: slowly and perhaps, to the majority of people, imperceptibly. However, the last few decades have seen extraordinary transformations in the methods and practices of collecting, storing, using, representing and disseminating what was once called geographic information but is now more broadly termed ‘spatial data’. Updating Australia’s datum so that it reflects a position on the face of the globe that matches satellite positioning systems is an essential step towards modernising Australia’s spatial data management. What makes it essential is the centrality of locative technologies in almost every aspect of contemporary society — from government, to industry, to everyday activities such as finding a restaurant or driving a car. Indeed, it has been claimed that Earth Observation currently provides $500 million in direct benefits to Australia, a figure estimated to increase to $1.7 billion by 2025, while precise positioning added $2.3 billion to the Australian GDP in 2012, and is estimated to add more than $8 billion by 2020.

Despite the growing importance of spatial data, surprisingly little close attention has been paid to the legal situation of the new, spatially embedded, digital citizenry. In particular, little attention has been directed towards the legal status of the spatial data involved. A recent article in The Economist observed that ‘[d]igital information is unlike any previous resource; it is extracted, refined, valued, bought and sold in different ways. It changes the rules for markets and it demands new approaches from regulators. Many a battle will be fought over who should own, and benefit from, data.’ Companies and government bodies that deal with data treat them as property that is capable of being owned, bought, sold and licensed. Yet, as the Productivity Commission has recently noted, in Australia, ‘no one “owns” data; in limited circumstances, copyright law can protect the form in which information is expressed, and it may be possible to claim ownership over a processed dataset’.

This article will consider the extent to which existing intellectual property laws in Australia encompass spatial data and associated products or systems, such as digital maps, cybercartography, geographic information systems (‘GIS’) and other emerging spatial media. It will begin by examining the changing terrain of geographic information and associated digital products and clarifying terminology for a legal audience. It will then turn to consider how the legal landscape has changed. It will look first at how copyright law was used in the past to regulate the ownership, production and dissemination of analogue maps and spatial data, and the challenges that arose in that context. It will go on to examine how changes in the digital era have affected the way that the law will apply to digital maps and digital spatial data, questioning whether copyright remains an appropriate legal mechanism for assigning ownership and access rights. Next it will consider whether a database right modelled on that in Europe would provide for better processes and outcomes, concluding that it will not. It will finally turn to consider some of the matters that need to be considered when deciding whether a new category of right is required to address this gap.

Before continuing, some explanation of terminology may be of assistance. This article will use the phrases ‘spatial data’ and ‘geospatial data’ as meaning essentially the same thing. In other words, the terms will be used in a broad sense to mean data which refers to a specific location or geographical area. Spatial data can thus cover not just datasets that describe physical geography, but also datasets describing topographical features, cadastral or land title information, transport and infrastructure, location of resources, such as groundwater, or utilities.

The words ‘data’ and ‘information’ are frequently used interchangeably by commentators, with little significant impact. Here, we will endeavour to treat them as having a subtly different meaning, by reference to the commonly used ‘knowledge pyramid’. In the knowledge pyramid, ‘data precedes information, which precedes knowledge, which precedes understanding and wisdom’. Without wishing to get bogged down in technical definitions, which have themselves been the subject of scholarly debate, we will seek to use ‘data’ in the sense of ‘raw elements’ that have been extracted through observation, computation, experiment or recordkeeping, while the word ‘information’ will be used here in a broader or less technical sense, to mean an accumulation of data or ‘data plus meaning’. Geospatial, or spatial, data can be understood broadly as ‘any data (quantitative and qualitative) which have a location (eg spatially referenced with coordinates) or topology’.

 They conclude

Maps have long presented challenges to the law of copyright. In the mid-18th century it may have seemed appropriate to apply the model of literary copyright to maps because, like books, they were capable of being reproduced and sold by those who had not invested in their production. However, almost immediately a model founded upon authorship threw up problems for a work which, in the Age of Enlightenment, was increasingly presenting itself as scientific, rational and objective — and, therefore, un-authored. The model pursued from the 19th century of fitting products into categories of work is also a poor fit for paper maps, which can be characterised in different ways depending on whether one focusses on their mode of production (engraving, drawing, photography etc) or their perceived purpose or value (aesthetic, informational or functional). Even if the map is conceded to fit within the scope of copyright law such as to be capable of ownership, the question of who owns a map produced from a mix of public domain, proprietary and publicly funded materials is not an easy one to answer.

All of these problems persist in the digital age, and are compounded by uncertainty over new methods of data capture and the growing importance of the geospatial data as a separate source of commercial value. It is now the case that copyright law, as it currently stands in Australia, does not offer appropriate protection to digital maps and geospatial data. It is further argued that the situation would not be improved by introducing a database right along the lines of that adopted in the European Union. However, this is an area which needs to be addressed. It is far from satisfactory to continue to treat digital maps and geospatial data as being protected by copyright if this is not in fact the case. While the use of CC licences might have alleviated many of the concerns surrounding access to geospatial data, in particular that gathered by the state at the taxpayer’s expense, this is not a sufficient reason to continue the charade. Indeed, continuing to treat geospatial data as copyright runs the risk of over-protecting this material through offering it the broad and long-lasting protection of copyright, while failing to demand that it meet the threshold requirements for such protection to subsist. It is, for example, deeply unpersuasive to contend that Google Maps, updated daily, or a live stream of digital spatial data, should be protected for the life of any actual or assumed author and an additional 70 years.

Instead, one of two approaches should be adopted: either digital form maps (not created by humans) and geospatial data should be expressed clearly to fall in the public domain; or, a new sui generis right should be created which is tailored to the particular conditions in which they are created, used and disseminated. It is worth noting here that the European Commission has recently observed that ‘[t]o build the data economy, the EU needs a policy framework that enables data to be used throughout the value chain for scientific, societal and industrial purposes’. One of the options that is being considered in this context is the creation of a data producer’s right.

It is beyond the scope of this article to explore in detail the advantages and disadvantages of either option. Arguments in favour of protecting geospatial data and digital maps include: incentivising their production because of the economic and/or social value of the data itself and of products and resources generated from using it; rewarding those who have invested time, effort and expense in its production; the need to ensure integrity, quality and authoritativeness of data and data sources; and the need to recover costs or generate profits. Such arguments apply to both state and non-state actors. Arguments against intellectual property rights in geospatial data emphasise public access, particularly in relation to government data sets. Proponents of open data policies point to success stories involving rapid response mapping, such as the use of OSM to create a map of streets following the 2010 Haitian earthquake, or disaster stories, such as the way in which Crown copyright was said to hamper Google’s efforts to display fire maps and emergency warnings in the devastating Victorian fires of 2009. They might also point to new modes of data production and collection such as VGI and crowdsourcing, and the blurring of boundaries between users and creators, which do not align well with intellectual property law’s traditional approaches to ownership and control.

In considering whether a new intellectual property right in spatial data should be introduced, it would be necessary to consider a number of factors. Chief amongst these are the extent to which it is necessary to provide incentives to collect, produce or analyse geospatial data and the extent to which governments, members of the public, other users and potential competitors need to access and use such data. It would also be important to think about the nature of the right in question (ie what exclusive rights would be granted to owners and what exceptions to such rights would be appropriate) and to define the types of spatial data to which it would apply, and the duration of any such right. A limited right, more akin to a neighbouring right such as the broadcast right, with a tailored term of protection and restricted scope, might offer a way to reconcile some of the arguments on both sides of the debate.

While some have heralded recent developments as the rise of the democratisation of information and welcomed a ‘neogeography’ that disrupts and devolves established, centralised structures of geographic knowledge control, this new world of openness and interaction has not swept away inequalities of access and control, although it has enabled greater levels of individual participation. Rather, as Kitchin, Lauriault and Wilson point out, the new spatial media ‘enrol[s] users within new markets and subjugate[s] them within new relations of control and power’. It is of central importance that we recognise that the changes in technology and associated practices mean that existing legal structures are no longer appropriate, and that we engage actively in exploring new options for legal and regulatory mechanisms that reflect the new conditions and help direct government, industry and individuals towards mutually beneficial engagement and collaboration.

Doxing and Defamation

'Doxing: a conceptual analysis' by David M. Douglas in (2018) 18(3) Ethics and Information Technology 199–210 comments

Doxing is the intentional public release onto the Internet of personal information about an individual by a third party, often with the intent to humiliate, threaten, intimidate, or punish the identified individual. In this paper I present a conceptual analysis of the practice of doxing and how it differs from other forms of privacy violation. I distinguish between three types of doxing: deanonymizing doxing, where personal information establishing the identity of a formerly anonymous individual is released; targeting doxing, that discloses personal information that reveals specific details of an individual’s circumstances that are usually private, obscure, or obfuscated; and delegitimizing doxing, which reveals intimate personal information that damages the credibility of that individual. I also describe how doxing differs from blackmail and defamation. I argue that doxing may be justified in cases where it reveals wrongdoing (such as deception), but only if the information released is necessary to reveal that such wrongdoing has occurred and if it is in the public interest to reveal such wrongdoing. Revealing additional information, such as that which allows an individual to be targeted for harassment and intimidation, is unjustified. I illustrate my discussion with the examples of the alleged identification of the creator of Bitcoin, Satoshi Nakamoto, by Newsweek magazine, the identification of the notorious Reddit user Violentacrez by the blog Gawker, and the harassment of game developer Zoe Quinn in the ‘GamerGate’ Internet campaign.

The Scottish Law Commission's December 2017 report on defamation comments

In this Report, we recommend a number of important reforms to the law of defamation and verbal injury. Our aim is to modernise and simplify Scots law in these areas so as to ensure that it strikes the correct balance between the fundamental values of freedom of expression on the one hand and protection of reputation on the other. Achieving the right balance between these two principles is a particularly sensitive issue in the age of the internet and social media. Whilst defamation litigation has not been especially common in Scotland in recent years, the law on the subject is of considerable importance in modern society, not least because of the ease and speed with which information can now be transmitted. Whilst the internet has allowed people to communicate far more effectively and much more widely than ever before, it has also meant that reputations can be quickly and, in some cases, unfairly tarnished. This has given rise to new challenges for defamation law. We believe that our recommendations would serve to improve and strengthen the law in a modern context, as well as making it more accessible and easier to understand. 

Defamation may be described as the civil wrong committed when a person makes a false and damaging imputation against the character or reputation of another person.  The essence of what makes a statement defamatory is whether it would damage the reputation of the pursuer in the eyes of the ordinary reader, viewer, or listener. Verbal injury is a civil wrong analogous to, though distinct from, defamation. One important difference between these two civil wrongs is that in an action based on verbal injury the pursuer must prove that the defender acted with malice in the sense that he or she intended to cause injury by making the statement complained of; this is not (usually) a requisite of a successful action based on defamation. 

The general background to our project lies in the reforms made to defamation law in England and Wales by the Defamation Act 2013 (“the 2013 Act”). The 2013 Act was the culmination of a long-running civil society campaign for libel3 reform: this developed over the course of a decade or more in the years following the millennium.  The campaign was motivated by concerns over the practice described as ‘libel tourism’ and what was perceived to be its resultant chilling effect on freedom of expression. Another influence behind the campaign was concern over the increase in the volume of libel actions brought against nongovernmental organisations, scientists, and academics with a view, it was said, to suppressing legitimate criticism of authority and alleged abuses of power. A third factor leading to the campaign was the enactment by a number of legislatures in the United States of legislation designed to prevent the enforcement of libel judgments issued by courts in England and Wales. 

The civil society campaign and the political support it gathered led eventually to the enactment of the 2013 Act. It introduced important reforms intended to reset the law of defamation for modern times: amongst other changes in the law discussed more fully later in the present Report, the Act introduced a threshold requiring a claimant to show serious harm before an action could competently be brought; greater protection was provided for website operators; repeated publication would no longer trigger new limitation periods; and actions could be brought only if England and Wales was shown to be clearly the most appropriate jurisdiction for hearing them. 

The Scottish Government decided not to move to extend most of the provisions of the Act to this country, with the exception of a small number of provisions relating to privilege in academic and scientific activities. 

Background to this project 

Consultation on our Ninth Programme of Law Reform in 2014 elicited a substantial number of submissions proposing that we should examine the law of defamation in Scotland. Amongst those supporting a project in this area were the Law Society of Scotland, the Faculty of Advocates, BBC Scotland, and the Libel Reform Campaign. They and other respondents drew particular attention to the major reforms of the law of England and Wales introduced by the 2013 Act. 

We formed an advisory group to assist us in understanding how the current law works in practice and in developing our ideas for reform of the law. We are grateful to the members of the advisory group for their assistance throughout the project. We published our Discussion Paper in March 2016. We thank all those who took the time to respond. In April 2016, in association with Edinburgh University Law School Centre for Private Law, we held a seminar on reform of defamation law and verbal injury; this was attended by a wide range of stakeholders, including delegates from England and Wales and Northern Ireland. A further seminar on defamation law reform was hosted on our behalf by Pinsent Masons LLP in June 2016. In October 2016 we held a roundtable discussion on defamation and the new media. In August 2017, we launched a consultation on the draft Defamation and Malicious Publications (Scotland) Bill (“the draft Bill”), and asked for comments on it. A revised version of the draft Bill is attached to the present Report. In formulating the recommendations set out in this Report we have attempted to take account of views expressed to us by stakeholders during the project. In what follows we refer, where appropriate, to the consultation responses on the Discussion Paper and the draft Bill. They are published in full on our website. 

Our approach 

We did not confine our approach to examining whether and to what extent the reforms reflected in the 2013 Act might be suitable for adoption in Scots law, subject to any appropriate modifications or improvements. We also considered other aspects of Scots defamation law that we thought might be in need of reform. These included: whether publication to a third party should become a requisite of an action for defamation; reform of remedies; and defamation of deceased persons. As mentioned above, we also examined the law relating to verbal injury. 

Structure of the Report 

The Report is divided into ten further chapters and three appendices. In chapter 2 we consider whether Scots law should continue to allow defamation actions to be based on private communications without a need for publication of the statement complained of to a third party. We recommend that publication to a third party should become a necessity for a competent action. We also address the need for a threshold test of serious harm and propose that one should be introduced. We consider too whether and to what extent there should be a bar on the bringing of defamation proceedings by public authorities. We make a number of recommendations in this connection. In chapter 3 we look at whether the main common law defences of truth, publication on a matter of public interest, and fair comment should be put on a statutory basis. We recommend that they should be; and that the existing defences should be abolished. Chapter 4 is concerned with the bringing of proceedings against internet intermediaries, such as search engines and blogging sites. We recommend new rules providing stronger protections for such secondary publishers. In chapter 5 we examine the law on absolute and qualified privilege; we recommend that the rules should be set out in a new Act. Chapter 6 deals with the remedies available in defamation proceedings, including the system for offering to make amends. We recommend a number of increased powers for the courts, including power to order publication of a summary of the court’s judgment and to require removal of statements by website operators. The law on limitation of actions is considered in chapter 7. Here we recommend, amongst other changes, that there should be a restriction on the opportunity to bring proceedings in relation to republication of material, as well as a reduction in the limitation period within which defamation actions can be brought from three years to one. In chapter 8 we consider the rules on jurisdiction and examine whether there should continue to be an automatic right to trial by jury; we recommend that this should be modified. In chapter 9 we look at the law on verbal injury and recommend a number of reforms. Chapter 10 discusses whether the law should allow cases to be brought where a deceased person has been defamed; we recommend that this should not be permitted. Finally, we list our recommendations in chapter 11. Appendix A sets out the draft Defamation and Malicious Publication (Scotland) Bill. In Appendix B we provide a list of those who responded to the Discussion Paper. Appendix C contains a list of respondents to the consultation on the draft Bill.

The Commission's recommendations are -

1. It should be competent to bring defamation proceedings in respect of a statement only where the statement has been communicated to a person other than its subject, with that person having seen or heard it and understood its gist. (Paragraph 2.8; Draft Bill, section 1(2)(a) and (4)) 

2. It should be competent to bring defamation proceedings in respect of a statement only where the publication of the statement has caused, or is likely to cause, serious harm to the reputation of the person who is the subject of the statement. (Paragraph 2.14; Draft Bill, section 1(2)(b) and (4)) 

3. Bodies which exist for the primary purpose of making a profit should, in principle, continue to be permitted to bring proceedings in defamation. (Paragraph 2.20) 

4. A non-natural person whose primary purpose is to trade for profit should be permitted to bring defamation proceedings only where it can demonstrate that the statement complained of has caused or is likely to cause it serious financial loss. (Paragraph 2.25; Draft Bill, section 1(3)) 

5. Persons which are classed as public authorities for the purposes of the Bill should not be permitted to bring proceedings for defamation. (Paragraph 2.29; Draft Bill, section 2(1)) 6. A person should be classed as a public authority if the person’s functions include functions of a public nature. (Paragraph 2.29; Draft Bill, section 2(2)) 

7. A person should not fall into the category of a public authority if it is a non-natural person which has as its primary purpose trading for profit or is a charity or has a charitable purpose and is not owned or controlled by a public authority and only carries out functions of a public nature from time to time. (Paragraph 2.29; Draft Bill, section 2(3)-(4)) 

8. There should be a power for Scottish Ministers to make regulations specifying persons or descriptions of persons who are not to be treated as a public authority, where this result is not achieved already by section 2. Such regulations should require public consultation before they are made and be subject to the affirmative resolution procedure. (Paragraph 2.29; Draft Bill, section 2(6)-(8)) 

9. A statutory defence of truth should be introduced. The defences of veritas at common law and justification under the Defamation Act 1952 should be abolished. (Paragraph 3.13; Draft Bill, sections 5, 8(1)(b) and 33(1)) 

10. A statutory defence of honest opinion should be introduced. The defences of fair comment at common law and under the Defamation Act 1952 should be abolished. (Paragraph 3.22; Draft Bill, sections 7, 8(1)(d) and 33(1)) 

11. It should not be a requirement of the defence of honest opinion that the opinion expressed relates to a matter of public interest. (Paragraph 3.28) 

12. The statutory defence of honest opinion should be available in relation to a statement of opinion including a statement drawing an inference of fact which: (a) indicates either in general or specific terms the evidence on which it is based; and (b) is such that an honest person could have held the opinion conveyed by the statement on the basis of any part of that evidence. (Paragraph 3.62; Draft Bill, section 7(2), (3) and (4)) 

13. The statutory defence of honest opinion should fail if it is shown that the person who made the statement did not genuinely hold the opinion conveyed by the statement. (Paragraph 3.62; Draft Bill, section 7(5)) 

14. Where the statement complained of was published by one person but made by another, the previous recommendation should be inapplicable and the statutory defence of honest opinion should fail if it is shown that the person who published the statement knew or ought to have known that the author of the statement did not genuinely hold the opinion conveyed by the statement. (Paragraph 3.62; Draft Bill, section 7(6)) 

15. A statutory defence of publication in the public interest should be introduced. The Reynolds defence should be abolished. (Paragraph 3.75; Draft Bill, sections 6 and 8(1)(c)) 

16. The statutory defence of publication in the public interest should extend to statements of fact and to statements of opinion. (Paragraph 3.79; Draft Bill, section 6(5)) 

17. The statutory defence of publication in the public interest should make specific provision for reportage. In particular, it should be provided that in determining whether it was reasonable for a defender to believe that publication was in the public interest, (a) allowance must be made for editorial judgment, where appropriate; and (b) no account should be taken of any failure by a defender to take steps to verify the truth of the imputation conveyed by a statement if the statement was or formed part of an accurate and impartial account of a dispute to which the pursuer was a party. (Paragraph 3.85; Draft Bill, section 6(3) and (4)) 

18. Any review of responsibility and defences for publication by internet intermediaries should be carried out on a UK-wide basis. (Paragraph 4.7) 

19. As part of any UK-wide review of liability and defences of internet intermediaries, consideration should be given to (a) whether there is scope to clarify the operation of existing provisions, rather than creating new provisions and (b) if so, whether this would be most appropriately achieved by means other than legislation. (Paragraph 4.25) 

20. Generally, defamation proceedings should not be capable of being brought against a person, unless the person is the author, editor or publisher of the statement in respect of which the proceedings are to be brought or is an employee or agent of such a person and is responsible for the content of the statement or the decision to publish it. (Paragraph 4.33; Draft Bill, section 3) 

21. A regulation-making power should be created to allow for exceptions to the general rule so that specified categories of person may be treated as publishers of a statement for the purpose of defamation proceedings despite not being the author, editor or publisher of the statement or an employee or agent of such a person. A draft of such regulations should be the subject of consultation before they are made. The regulations should be subject to the affirmative resolution procedure. (Paragraph 4.33; Draft Bill, section 4(1), (3) and (4)) 

22. Any such regulations may also provide for a defence that the person treated as a publisher did not know and could not reasonably be expected to have known that the material disseminated contained a defamatory statement. (Paragraph 4.33; Draft Bill, section 4(2))   

23. There should be no change to Scots law in relation to absolute privilege for statements made in the course of parliamentary proceedings. (Paragraph 5.9) 

24. Section 14 of the Defamation Act 1996 should be repealed and re-enacted in a new Defamation Act so as to reflect in Scots law the change effected by section 7(1) of the 2013 Act for England and Wales in relation to absolute privilege for contemporaneous reports of court proceedings anywhere in the world and of any international court or tribunal established by the Security Council or by an international agreement. (Paragraph 5.9; Draft Bill, section 9) 

25. The law on privileges should be extended by allowing qualified privilege to cover communications issued by a legislature or public authority outside the EU or statements made at a press conference or general meeting of a listed company anywhere in the world. (Paragraph 5.16; Draft Bill, section 11 and schedule) 

26. The privileges of the Defamation Act 1996 should be restated for Scotland in a new statute. (Paragraph 5.22; Draft Bill, sections 9 and 11 and schedule) 

27. There should be no reform of Scots law in relation to qualified privilege for publication (through broadcasting or otherwise) of Parliamentary papers or extracts thereof, for the time being. (Paragraph 5.32) 

28. Consideration of any future reform relating to this area should be carried out on a UK-wide basis. (Paragraph 5.32) 

29. The scope of section 6 of the 2013 Act should not be expanded but its current terms should be restated in a new Act for Scotland. (Paragraph 5.44; Draft Bill, section 10)  

30. There should be no change to the law governing the granting of interdict and interim interdict in defamation actions or in proceedings under Part 2 of the Bill. (Paragraph 6.6) 

31. The offer of amends procedure should be incorporated in a new Defamation Act. (Paragraph 6.11; Draft Bill, sections 13 to 17) 

32. There should be a statutory provision to the effect that an offer of amends is deemed to have been rejected if not accepted within a reasonable period. (Paragraph 6.17; Draft Bill, section 13(3)(c)) 

33. In defamation proceedings and in Part 2 proceedings the court should have power to order that the defender must publish a summary of its judgment. (Paragraph 6.44; Draft Bill, section 28) 

34. In defamation proceedings and in Part 2 proceedings the court should have statutory power to allow a settlement statement to be read out in open court. (Paragraph 6.51; Draft Bill, section 29) 

35. In defamation proceedings and in Part 2 proceedings the court should have statutory power, at any stage in the proceedings, (a) to order the operator of a website to remove a defamatory statement or (b) to order the author, editor or publisher of such a statement to stop distributing, selling or exhibiting material containing it. (Paragraph 6.61; Draft Bill, section 30) 

36. Where a person publishes a statement to the public and subsequently publishes the same or substantially the same statement, any right of action in respect of the subsequent publication should be treated as having accrued on the date of the first publication. (Paragraph 7.8; Draft Bill, section 32(3)) 

37. The previous recommendation should not apply where the manner of the subsequent publication is materially different from that of the first publication, having regard to the level of prominence that the statement is given; the extent of subsequent publication; and any other matter which a court considers relevant. (Paragraph 7.14; Draft Bill, section 32(3)) 

38. The length of the limitation period in actions for defamation should be one year. (Paragraph 7.19; Draft Bill, section 32(2)) 

39. The limitation period should commence on the date of first publication of the statement complained of. (Paragraph 7.24; Draft Bill, section 32(3) and 32(6)(b)(iv)) 

40. A court in Scotland should not have jurisdiction to hear and determine defamation proceedings against a person who is not domiciled in the UK, another Member State or a state which is a contracting party to the Lugano Convention, unless satisfied that Scotland is clearly the most appropriate place to bring the proceedings. This should not affect the availability of the defence of forum non conveniens, where appropriate. (Paragraph 8.10; Draft Bill, section 19) 

41. The presumption in favour of jury trials in defamation actions should be replaced by a discretionary power to allow the court to appoint the form of inquiry, including jury trial, best suited to the circumstances of the case. (Paragraph 8.19; Draft Bill, section 20) 

42. The principles underlying the three categories of verbal injury which relate to economic interests (ie falsehood about the pursuer causing business loss, slander of title and slander of property) should be retained. (Paragraph 9.23) 

43. The common law rules relating to these categories of verbal injury should be abolished and instead expressed in statutory form. (Paragraph 9.23; Draft Bill, sections 21, 22, 23 and 27) 

44. Verbal injury should be renamed by a term which reflects more accurately the type of conduct it seeks to address (ie malicious publication). (Paragraph 9.23; Draft Bill, Part 2) 

45. The three categories of verbal injury relating to economic interests should be renamed, to reflect more clearly the types of conduct they seek to address (ie statements causing harm to business interests, statements causing doubt as to title to property and statements criticising assets). (Paragraph 9.23; Draft Bill, sections 21, 22 and 23) 

46. The common-law rules providing for verbal injury relating to individuals should be abolished. (Paragraph 9.32; Draft Bill, section 27)  

47. There should be no requirement on the pursuer in proceedings under Part 2 of the draft Bill to show financial loss if the statement complained of is more likely than not to cause such loss. (Paragraph 9.34; Draft Bill, section 24) 

48. The “single meaning rule” should not apply in relation to proceedings brought under Part 2 of the draft Bill. (Paragraph 9.36; Draft Bill, section 25) 

49. Anxiety and distress should be capable of being taken into account by the court in determining the appropriate amount of general damages, in so far as such anxiety and distress flows from economic damage to business interests caused by the relevant statement. (Paragraph 9.38; Draft Bill, section 26) 

Regulatory Theory

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

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

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

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

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

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

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

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

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

RobotDebt

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

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

Carney argues

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

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

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

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

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

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

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

Carney concludes

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

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

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

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

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

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

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

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

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

Drug Law Reform

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

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

comments that

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

The report features the following  recommendations

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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