Big Data South

'(Big) Data and the North-in-South: Australia’s Informational Imperialism and Digital Colonialism' by Monique Mann and Angela Daly in the forthcoming 'Big Data from the South' special issue of Television and New Media edited by Stefania Milan and Emiliano Trere comments 

Australia is a country firmly part of the Global North, yet geographically located in the Global South. This North-in-South divide plays out internally within Australia given its status as a British settler-colonial society which continues to perpetrate imperial and colonial practices vis-à-vis the Indigenous peoples and vis-à-vis Australia’s neighbouring countries in the Asia-Pacific region. This article draws on discuss five seminal examples forming a case study on Australia to examine big data practices through the lens of Southern Theory from a criminological perspective. We argue that Australia’s use of big data cements its status as a North-in-South environment where colonial domination is continued via modern technologies to effect enduring informational imperialism and digital colonialism. We conclude by outlining some promising ways in which data practices can be decolonised through Indigenous Data Sovereignty but acknowledge these are not currently the norm so Australia's digital colonialism/coloniality endures for the time being.

US Fashion Protection

'A Design of its Own: How to Protect the Fashion Industry' by Gianna Cresto in American Intellectual Property Law Association Quarterly Journal (Forthcoming) discusses the gap in [US] intellectual property protections for the fashion industry.

 First, it details why fashion is art of the type that typically qualifies for copyright protection, and not just a means of covering the body. Next, it discusses why this hybrid nature makes it unique and worthy of protection under current U.S. copyright law. Because designs are often chosen not just for their functional purpose, but for their artistic and expressive qualities, clothing is different from many other types of works protected by IP frameworks, including trademark and patent. The dual purpose and ability of fashion to be used as a form of expression should not keep if from the protection it deserves. The Supreme Court addressed the standard for copyright protection in the context of clothing design in Star Athletica v. Varsity Brands. 

This Note suggests that this recent development marks an opportune time to push for new legislation that will expand the Star Athletica ruling. These increased protections for the fashion industry should be developed by drawing on other forms of IP protection for fashion in the United States, and protections in place in other countries. These hybrid works call for a hybrid solution. Though its solution, this Note fills the gap for fashion designs, particularly for designers that are just starting out or less conspicuous when it comes to branding.

Competition law and the attention economy

'Blind Spot: The Attention Economy and the Law' by Tim Wu in (2018) Antitrust Law Journal comments 

Human attention is a resource. An increasingly large and important sector of the economy, including firms such as Google, Facebook, Snap, along with parts of the traditional media, currently depend on attentional markets for their revenue. Their business model, however, present a challenge for laws premised on the presumption of cash markets. This paper introduces a novel economic and legal analysis of attention markets centered on the “attention broker,” the firms that attract and resell attention to advertisers. 

The analysis has important payouts for two areas: antitrust analysis, and in particular the oversight of mergers in high technology markets, as well as the protection of the captive audiences from so-called “attentional theft.”

Wu states

Human attention, valuable and limited in supply, is a resource. It has become commonplace, especially in the media and technology industries, to speak of an “attention economy” and of competition in “attention markets.” There is even an attentional currency, the “basic attention token” (BAT) which purports to serve as a medium of exchange for user attention. Firms like Facebook and Google, which have emerged as two of the most important firms in the global economy, depend nearexclusively on attention markets as a business model. 

Yet despite the well-recognized commercial importance of attention markets, the law has struggled when it encounters the attention economy. Antitrust agencies, tasked with assessing the effects of mergers and controlling anticompetitive behavior, seem to lack a way to understand the market dynamics when the firms offer “free products” that are actually competing for attention. Meanwhile, those tasked with consumer protection have no good paradigm for dealing with attentional intrusions stemming from non-consensual, intrusive advertising or debates over the use of telephones on airlines. This essay aims to provide a legal and economic analysis to help face the challenges here described. In other work, I have described the rise and spread of the “attention industry,” the businesses that depend on the resale of attention, a global industry with an annual revenue of approximately $500 billion. 

This essay builds on that work by focusing on the economic decisions implicit in “Attention Brokerage.” As described here, brokerage is the resale of human attention. It is to attract attention by offering something to the public (entertainment, news, free services and so on), and then reselling that attention to advertisers for cash. Examples of pure Attention Brokers include social media companies like Instagram and Facebook, search engines like Google or Bing, ad-supported publishers like Buzzfeed or AM News, and some television channels like CBS or NBC. The Brokers’ activities are critical to the operation of attention markets, for the business model creates much of the competition for attention that this paper describes. 

This approach offers new promise for the antitrust law and some of the challenges it confronts in the attention economy. Markets and market definition are central to contemporary antitrust law, and this paper offers a new approach to the definition of attention markets, in cases where enforcers and courts may otherwise become confused by the presence of a “free” product or by two-sided market analysis. It suggests defining the relevant consumer markets based on “time spent” (or just “time”) as the currency, and then making use of the familiar economic concept of substitution to find an appropriate market. And so, for example, in a case centered on online mapping products, an enforcement agency may ask whether products like Google Maps, Waze, and Apple Maps are, in fact, substitutes for each other in attention markets. The law can then address appropriate market definition by asking whether other products, like streaming video, compete for the same attention as online maps. That makes possible the use of an “Attentional Small but Significant and Non-Transitory Increase in Price” test, or “A-SSNIPS” test as an aid to finding the appropriate market definition for consumer markets. 

The implications of this paper are not merely theoretical. Armed with a better analysis, it would not be too late for an American antitrust agency to challenge some of the relevant acquisitions consummated over the 2010s, like Facebook-Instagram, or Google-Waze, under either Section 7 of the Clayton Act, or Section 2 of the Sherman Act. The passage of years might, in fact, provide clearer evidence of whether such mergers have, in fact, generated efficiencies, or instead yielded either higher advertising prices, or increased the ad-load experienced by consumers, or resulted in quality effects, like diminished privacy protections. xxx In any event, taking attention markets seriously will be essential for agencies confronting a new generation of challenges raised by importance of the businesses that resell human attention. The goal of this paper is to encourage economists and agencies to develop workable models that help the law face these challenges.

'Freedom: The Holberg Lecture, 2018' by  Cass R. Sunstein asks

 If people have freedom of choice, do their lives go better? Under what conditions? By what criteria? 

Consider three distinct problems. (1) In countless situations, human beings face a serious problem of “navigability”; they do not know how to get to their preferred destination, whether the issue involves health, education, employment, or well-being in general. This problem is especially challenging for people who live under conditions of severe deprivation, but it can be significant for all of us. (2) Many of us face problems of self-control, and our decisions today endanger our own future. What we want, right now, hurts us, next year. (3) In some cases, we would actually be happy or well-off with two or more different outcomes, whether the issue involves our jobs, our diets, our city, or even our friends and partners, and the real question, on which good answers are increasingly available, is what most promotes our welfare. The evaluative problem, in such cases, is especially challenging if a decision would alter people’s identity, values, or character. Private and public institutions -- including small companies, large companies, governments – can help people to have better lives, given (1), (2), and (3). 

This Essay, the text of the Holberg Lecture 2018, is the basis for a different, thicker, and more elaborate treatment in a book.

Police Accountability and Commonwealth Anti-Corruption

The report of the Inquiry into the external oversight of police corruption and misconduct in Victoria by the Victorian Parliamentary committee on the state's Independent Broad-based Anti-Corruption Commission (IBAC) has recommended that all serious police misconduct be investigated by a new independent police misconduct and corruption division within IBAC.

The Committee was required to:

1. Examine the current system for the oversight of police corruption and misconduct in Victoria, in particular the role of IBAC and the Victorian Inspectorate. 

2. Identify and assess best‐practice models for the oversight of police. 

3. Identify and review the main challenges to the effective oversight and investigation of complaints and disclosures about police in Victoria. This will involve an examination of the legal framework for the oversight of police in Victoria. The review will encompass both the legal responsibilities of those overseeing police as well as the perspectives and experiences of complainants, including marginalised Victorians. 

4. Consider best‐practice strategies to improve the oversight and investigation of police corruption and misconduct and how they may be implemented in Victoria. 

The Committee notes

Police play a critical role in society, preventing and combating crime, enforcing the law and protecting, assisting and engaging with the community in a myriad of ways. The job of a police officer is a demanding one: they can be called on to make split‐second decisions in complex, stressful and dangerous circumstances. In order to do their jobs effectively, police officers have distinctive powers to arrest, detain, search and use force against individuals. However, the use of these powers is strictly governed by the law and by the understanding that effective and legitimate policing rests on the consent and confidence of the community—an understanding central to the values and commitments of Victoria Police. While the majority of Victoria Police officers do a fine job in serving the community, the maintenance of public confidence in police depends to a considerable degree on how officers who do the wrong thing are held accountable. In this regard, an effective system for handling complaints and disclosures (‘whistleblower’ complaints) is vital. 

In 2016, the Independent Broad‐based Anti‐Corruption Commission Committee’s Strengthening Victoria’s integrity agencies? report identified that there were concerns among some stakeholders about the impartiality and effectiveness of the current police complaint‐handling and oversight systems in Victoria. Some stakeholders called for the creation of a new, independent body to receive, handle and investigate all complaints about police, instead of Victoria Police and IBAC, along the lines of the Office of the Police Ombudsman for Northern Ireland (PONI). ... 

The Committee found that Victoria’s mixed civilian review system—in which the responsibility for handling and investigating complaints is shared between Victoria Police and IBAC as an independent oversight body—is a robust one that can, with improvement, meet the relevant best practice principles. The Committee does not therefore recommend the creation of a new independent body to receive, handle and investigate all complaints about police.

However, the Committee’s research, and evidence received during this Inquiry, demonstrate that the complaints and police oversight system needs significant improvement. The Committee has therefore made 69 recommendations to improve the transparency, impartiality, effectiveness and efficiency of the system.

In particular, the Committee considers that IBAC needs to give greater priority to its functions of handling, investigating and oversighting complaints about police. For example, IBAC investigates only approximately 2% of the allegations it determines warrant investigation, referring the rest to Victoria Police, including a range of serious police misconduct matters. In order to enhance the attention IBAC gives to serious police misconduct, and police oversight generally, the Committee has recommended the establishment of an adequately staffed and empowered Police Corruption and Misconduct Division within IBAC. Further, the Committee has recommended that, unless there are exceptional circumstances, IBAC, rather than Victoria Police, investigate serious police misconduct. In order to assist IBAC in carrying out these important functions, the Committee has recommended the conferral of selected additional investigative and oversight powers on it.

The Committee’s recommendations address the need for significant improvements in the complaints system across a wide range of functions and activities, including the receipt, handling, assessment, referral, investigation, review and oversight of complaints and disclosures about police. In particular, the Committee emphasises the importance of the accurate assessment of all complaints to ensure, for example, that serious police misconduct is not wrongly classified as a customer service issue or similar lower‐level concern.

Further, the Committee has made recommendations, from a complainant‐centred perspective, to improve the public information about the complaints system that is available (including high quality data on the operation of the system). It has also made recommendations to ensure that complainants, especially vulnerable complainants, are better communicated with and supported throughout the process. In addition, the Committee has identified a range of necessary improvements to ensure the impartiality and thoroughness of Victoria Police complaint investigations (particularly at the regional level). This includes the better management of issues such as officer complaint histories and conflicts of interest. Finally, the Committee has recommended that Victoria Police and IBAC make more use of conciliation as a way of effectively resolving complaints.

The Griffith University and Transparency International A National Integrity Commission – Options for Australia report by A J Brown, Adam Graycar, Kym Kelly, Ken Coghill, Tim Prenzler and Janet Ransley comments

Since the 1990s, it has become clear that Australia’s federal public integrity system requires institutional strengthening to better deal with growing corruption risks. This paper presents three options for more coherent strengthening of Australia’s federal public integrity system, through extension, replacement and rationalisation of previous reforms: 

1. An integrity and anti-corruption coordination council 

2. An independent commission against corruption (ICAC) 

3. A custom-built Commonwealth Integrity Commission model

These options range from minimalist to comprehensive and are not mutually exclusive. They are intended to stimulate a more concrete discussion on the direction, purpose, scope and shape of reform needed for Australia to regain its position ‘ahead of the curve’ in public integrity and anti-corruption.

Since 2012, Australia has slipped 8 points on Transparency International’s annual Corruption Perceptions Index (CPI). Transparency International Australia has assessed the trend as including falling confidence in the national approach to anti-corruption. Support for a new federal anti-corruption agency is also strong (67%), and spread across the community including all education levels.

The Senate Select Committee on a National Integrity Commission (2017) received evidence from relevant agencies that the current Commonwealth framework was a ‘robust, multifaceted’ approach which addressed integrity and anti-corruption ‘appropriately and effectively’, but unanimously rejected suggestions that there was no case for significant change. It found:

• The national integrity framework required ‘strengthening… to make it more coherent, comprehensive and accessible’ (4.140, Recommendation 1) 

• ‘Careful consideration’ should be given to establishing a new or enlarged Commonwealth agency with ‘broad scope and jurisdiction to address integrity and corruption matters’ drawing on best State practice (4.142, 4.143, Recommendation 2) The Committee also recommended that this National Integrity System assessment be used to help reach a ‘conclusive’ view on the options (4.147, Recommendation 3).

In developing options for more detailed discussion, this paper builds on:

• Australia’s first national integrity system assessment (2001-05); 

• ‘Principles for designing a National Integrity Commission’ (November 2017), developed by The Australia Institute’s National Integrity Committee. 

2. Enhancing the Commonwealth integrity system 

Taking a pro-integrity approach An important issue is how institutional strengthening can revive a sufficiently strong focus, in practice, on achieving pro-integrity outcomes traditionally supported by the Commonwealth. Historically, most anti-corruption commissions have some prointegrity functions, but these differ widely in approach and usually come a distant second behind corruption investigation in resource allocation.

Building on the Australian Commission for Law Enforcement Integrity

The principal option for institutional strengthening involves expanding or replacing the existing Australian Commission for Law Enforcement Integrity (ACLEI). To the extent institutional strengthening requires an anti-corruption agency, this need not be as politically contentious as often assumed.

Definitions and investigatory powers: key advantages

On most key issues, the existing legal powers of ACLEI already meet “best practice” criteria for the legal thresholds and powers of anti-corruption, including:

• Definition of corruption 

• Independence 

• Powers to make public reports and findings 

• Strong investigative powers, including public hearings

ACLEI has power to compel witnesses, override the privilege against self-incrimination, and absolute discretion to conduct a hearing in such a manner as it sees fit, including in public, if it deems it appropriate and in the public interest. 

3. Weaknesses in the integrity system 

Australia faces a general need to ensure its federal public integrity system regains a reputation for being ‘ahead of the curve’, and address specific criticisms of the system. Logical questions identify seven major weaknesses: 

3.1. No coordinated oversight of high-risk misconduct 

Interrelated gaps in the Commonwealth integrity system include:

• lack of clear, reliable and comprehensive sector-wide measures of the incidence of confirmed or likely high-risk misconduct; 

• lack of any comprehensive sector-wide system for ensuring suspected high-risk misconduct is reported to any central or independent agency; and 

• lack of any system for ensuring high-risk misconduct is investigated to a consistent and acceptable standard, with appropriate outcomes and lessons learned.

Of Australia’s 1.9 million federal and state public servants, only the Commonwealth has major sections of its workforce not subject to a sector-wide system of independent oversight for corrupt and high-risk misconduct cases. There are no logistical justifications for the Commonwealth to settle for a fragmented and inadequate system, as Australia’s fourth largest employer – well capable of adjusting to a system of mandatory reporting and oversight. 

3.2. Most strategic areas of corruption risk unsupervised 

Some of the most strategic areas of corruption risk are without independent anticorruption supervision. For example law enforcement – the focus at ACLEI’s creation.

Of the 11 agencies engaged in the AFP Fraud & Anti-Corruption Centre, 7 are not subject to oversight by ACLEI. In procurement, the total value of Commonwealth contracts over $10,000 over the past five years was $251.9 billion. Only one of the top 10 procurement agencies (Home Affairs / Border Protection) lies in ACLEI’s jurisdiction. Defence, which alone spent $32.7 billion in 2016-17, is not. 

3.3. No coherent system-wide corruption prevention framework 

The Commonwealth integrity system shares this general weakness with many jurisdictions. But it is all the more pronounced if the Commonwealth is to sustain and strengthen its preferred ‘pro-integrity’ approach. 

3.4. Inadequate support for parliamentary and ministerial standards 

Strengthening the system as it relates to all public officials and programs is important, but the most crucial area for strengthening is at the parliamentary and political levels, where the public perceive the major – and growing – corruption problems.

Since 2016, the proportion of citizens perceiving that no federal parliamentarians are corrupt has fallen by two-thirds, while the proportion perceiving some or most to be corrupt, has risen from 71% to 80% -- the same or slightly worse than the average for State parliamentarians, and the worst for all three levels of government.

Measures for better dealing with parliamentary and ministerial integrity concerns and undue influence hinge on strengthened independent mechanisms, and other long overdue reforms. 

3.5. Low and uncertain levels of resourcing 

Combined national expenditure on core independent integrity agencies (anticorruption, Ombudsman and Auditor-General) by Australia amounts to only 0.069% of total public expenditure. By contrast, New Zealand’s expenditure is 0.111%. The Commonwealth’s is only 0.025%. The Commonwealth spends, at best, around a quarter of what the States typically spend; and in all, Australia’s public sector spends a third less than New Zealand, pro rata, on the same core public integrity functions. For Australia to reach the same level as New Zealand and most States, additional expenditure of approx. $295 million per annum would be required.

Also, the specific budget of AFP-led anti-corruption resources does not seem capable of being identified. Australia has committed under the UN Convention Against Corruption to ensuring it has ‘a body or bodies’ who are specialised and independent to combat corruption. If a country is unable to identify the budget behind this function, and that it is secure and stable, it is questionable whether it is satisfying its obligations. 

3.6. Cross-jurisdictional challenges (public and private) 

The Commonwealth can claim significant efforts and successes in many areas of interjurisdictional and cross-jurisdictional responsibility, but these have also often been less, and slower, and achieved with far less efficiency and agility, than they could and should have been – including with respect to:

• Responsible Business Conduct (inc. foreign bribery) 

• Proceeds of corruption and unexplained wealth 

• Corruption in real estate 

• Anonymous shell companies 

• National cooperation 

• Leadership and coordination 

3.7. Public accessibility and whistleblower support (public and private) 

The Commonwealth integrity system lacks a clear overall gateway for stakeholders to access and navigate it, including, in particular, those organizational insiders willing to provide crucial information for integrity and anti-corruption purposes (whistleblowers). This weakness has been identified both by the Senate Select Committee and the Parliamentary Joint Committee on Corporations and Financial Services. Of six countries compared, only Australia’s public sector has no independent or specialist whistleblowing agency that investigates retaliation or is able to assist whistleblowers with accessing remedies. 

The Parliamentary Joint Committee recommended a joint public-private whistleblower protection authority as part of a wholesale overhaul of existing law, including a new stand-alone private sector law. The provision of clearer gateway, receipt, advice, referral, and active and effective whistleblower protection functions are critical and interrelated needs. 

4. Options for Australia 

4.1. An Integrity and Anti-Corruption Coordination Council 

This option is closest to the existing multi-agency system, and proposes strengthening by providing improved, more formalised coordination. Reporting to the Prime Minister or Attorney-General, this body would be focused on cooperation and bridging the gaps between existing agencies. It would provide stronger policy and operational coordination. It could have a statutory basis but would not necessarily require its own executive agency, but a policy and coordination secretariat in an existing agency Indicative resources would involve an annual budget of approx $6.5 million per annum. This would marginally lift Commonwealth expenditure on its core public integrity agencies from a notional 0.033% to 0.037%; and Australia’s total to 0.076%. 

4.2. An Independent Commission Against Corruption 

This option would involve a best-practice independent, broad-based anti-corruption commission for the Commonwealth, based on lessons from State experience. It would represent a major development to address several main gaps in the existing multiagency system, handling serious misconduct and corruption allegations from across the Commonwealth public sector (Australian Public Service as well as non-APS). It would have a prevention program also extending across the sector. To the extent possible under the Constitution, it would provide assurance to the judicial and parliamentary integrity systems by supporting the presiding officers of the federal courts and houses of parliament with the handling and management of corruption allegations.

The Commission would have a statutory basis, be subject to the oversight of the parliament via a multi-party committee supported by a parliamentary counsel and an inspector, and would not be subject to ministerial direction.

Previously, the Commonwealth Parliamentary Budget Office costed a proposal for an ICAC at $109 million over the forward estimate period based on the NSW ICAC. More recently, the Australian Labor Party cited the Parliamentary Budget Office as having costed the concept at $58.7 million over the forward estimates, or only marginally more than the existing budget of ACLEI. A more realistic forward estimates cost would be $190.4 million over 4 years, or $46.7 million per annum including $45.6 million for 190 FTEs and $2 million per annum capital costs. With a saving of $11.0 million from ACLEI’s existing budget, this option would require additional expenditure of $36.6 million per year.

This would lift Commonwealth expenditure from a notional 0.033% of total public expenditure to 0.045%; and Australia’s total expenditure to 0.081% -- still well short of any of the levels of investment of any Australian State or New Zealand. 

4.3. A custom-built Commonwealth Integrity Commission model 

This option would also involve a best-practice independent, broad-based public sector anti-corruption commission for the Commonwealth, including lessons from State experience, but with a broader range of functions relevant to the Commonwealth’s role and present needs. In addition, it would separately involve direct expansion of the parliamentary integrity system.

The Commission would build on ACLEI’s specialist expertise and strengths by taking a more sector-blind approach to corruption risk and prevention. It would include a strategic coordination function for major corruption risks across all sectors and jurisdictions, and lead a stronger and more embedded corruption prevention program. It would also fill the major gap in Commonwealth whistleblower protection support for the public and private sectors, by acting as the whistleblower protection authority. The Commission would represent a major development to help address all the main weaknesses of the existing multi-agency system. It would also involve new and amended legislation and mechanisms for parliamentary and ministerial standards, and electoral campaign regulation.

The Commonwealth Integrity Commission would have an estimated cost of $104.7 million per annum including $97.7 million for 407 FTEs and $7 million per annum capital costs. With a saving of $11.0 per million from ACLEI’s existing budget, this option would require additional Commonwealth expenditure of $93.7 million per year. $4.1 million per annum is estimated for upgrading the Independent Parliamentary Expenses Authority. $13.0 million per annum is estimated to support the regime for political donations and campaign regulation.

Together these components would require $110.8 million per year in both FTEs and capital costs. This would lift Commonwealth expenditure on core public integrity agencies from a notional 0.033% to 0.07%; and Australia’s total expenditure to 0.096% (approximately the level of the weakest Australian State, and approaching New Zealand). 

5. Evaluation and conclusion 

Option 1 (an Integrity and Anti-corruption Coordination Council) could be a worthwhile reform as a means of strengthening the existing multi-agency approach – if there were no major gaps in scope, mandate and capacity in the existing system, and if greater coordination and collaboration, alone, would allow the system to operate in a more effective way. Option 1 would also be the least expensive.

Option 2 (an Independent Commission Against Corruption based on State experience) would be a more worthwhile reform, assuming that its jurisdiction is broadbased, its resources are sufficient, and that mechanisms are developed for ensuring its role as a partner in the multi-agency system rather than a stand-alone solution. This option would address most weaknesses to at least some degree, and some to a high level. If properly resourced, it would require a significant investment by the Commonwealth. 

Option 3 (a custom-built Commonwealth Integrity Commission) would provide a more comprehensive package of reforms. It assumes a strengthened integrity system should involve improved coordination and enhanced anti-corruption capacity, but also that a wider combination of reforms is needed to address the needs, strengths and weaknesses of the Commonwealth integrity system.

This option would also entail creation of a new commission, but with a different and wider configuration of functions than Option 2, taking into account the coordination needs addressed by Option 1 and further gaps at the Commonwealth level, such as whistleblowing support. It would entail separate reforms to support parliamentary and ministerial integrity All options would require investment. However, even the most expensive option would only barely bring the Commonwealth towards parity with the weakest contribution of the States, and of New Zealand. This level of investment is not only feasible but justified, rendering all options cheap compared with demonstrated need.

Conclusion: getting back ahead of the curve

All options highlight that the Commonwealth faces a strategic opportunity. The options show the choice between responses which continue to address challenges in isolation – and a wider view which addresses more problems and better stands the test of time. Despite the complexity, the time is now for government to chart how it will return from a position in which it is too often forced to look over its own shoulder for fear of unaddressed integrity risks. Instead, government should be able to proceed with confidence in the processes to resolve corruption concerns, and safe in the knowledge that robust systems are in place to minimize them in the first place.

This is not currently the case for the Commonwealth integrity system. A comprehensive approach provides the opportunity for Australia to get back ahead of the curve in the standards and strengths of its integrity system, and regain all the benefits of greater resilience, security, productivity and popular confidence.

University Student Finances

The Universities Australia 2017 Student Finances Survey report offers a disquieting perspective on Australian tertiary education.

The report states

 The 2017 Universities Australia Student Finances Survey provides an evidence-based picture of the financial situation of students at Australian universities. Students from 38 Universities Australia (UA) member universities participated in the survey. The survey covers both domestic and international students at all levels of study. 

It collects data on:

• Income and spending 

• Paid work and its impact on study 

• Access to income support 

• The costs of living and studying 

• Borrowing and debt

The 2017 survey follows earlier studies in 2012 and 2006. UA undertakes this study at regular intervals to provide our members, government and the public with a better understanding of students’ financial circumstances. 

The 2017 report shows that many students are still ‘doing it tough’, to the extent of being unable to afford basic necessities and being forced to miss classes to work. While this report deals with the facts, it tells an important story of the type of lives being lived by students all around Australia. 

Domestic Students

While there has been slight improvement in domestic students’ financial circumstances overall, a significant proportion of students is doing it tough. Most domestic students are worried about their finances. 

One-third of domestic students have estimated expenses that are greater than their estimated income. 

Some groups of students (low SES, Indigenous and regional) are more likely to experience financial difficulty. Domestic students’ average income hasn’t increased since 2012, but average spending has fallen. Thus any improvement in students’ finances is not because students are earning more, but because they are spending less. 

Income and Spending  

Median annual income for full-time domestic undergraduate students is $18,300, while their median spending is $14,200. One-third of domestic undergraduate students have estimated expenses exceeding their estimated income. This figure is slightly higher for low SES (37 per cent) and regional (38 per cent) students. 

Some 43 per cent of Indigenous students have income that doesn’t cover their expenses. 

Studunts' concerns about their finances

Most domestic undergraduate students (58 per cent) are worried about their financial situation. Low SES students are more likely (63 per cent) to be worried about their finances, as are regional students (64 per cent). 

Nearly three-quarters (72 per cent) of Indigenous students are worried about their finances. Only 38 per cent of domestic undergraduate students feel they are in control of their financial situation. This falls to 35 per cent of low SES students and only 27 per cent of Indigenous students. 

Some students can't afford to eat 

Some 15 per cent of domestic undergraduate students regularly go without food or necessities because they can’t afford them. Again, the figures are slightly higher for low SES (18 per cent) and regional (19 per cent) students. More than one in four Indigenous students regularly go without food or necessities. 

Work 

More than four in five domestic undergraduate students (82 per cent) are in paid employment. 

Full-time undergraduate students who work do a median of 12 hours per week. Nearly a third (30 per cent) of full-time domestic undergraduate students work more than 20 hours a week and more than 10 per cent work more than 30 hours. The share of students working more than 20 hours has increased steadily since earlier surveys. 

More than one quarter of full-time domestic undergraduates regularly miss classes because they have to work. Some 41 per cent report that work has a negative impact on study. 

For part-time domestic undergraduates, these figures rise to 36 per cent regularly missing classes to work and 52 per cent reporting that work has a negative impact on study. Only 35 per cent of students who work believe that their work/study balance is satisfactory. Some 39 per cent of domestic students say that their work has little value to them apart from the money. 

Income Support 

A third of domestic undergraduates receive student income support (Austudy, ABSTUDY or Youth Allowance). Some 42 per cent of low SES students and 45 per cent of regional students receive student income support. Nearly half (49 per cent) of Indigenous domestic undergraduates receive student income support. 

Savings 

Most domestic undergraduate students (61 per cent) have some savings that they can draw on in case of serious financial difficulty. Of those who have savings, nearly half report that they have had to use them. 

Low SES students (55 per cent) and regional students (57 per cent) are less likely to have savings that they can draw on. Fewer than half (42 per cent) of Indigenous students have savings. 

More than half of regional domestic undergraduates with savings (52 per cent) report that they have had to draw on their savings. 

Debt 

Most of the debt for domestic students is made up of tuition fees deferred through the HELP scheme. 

Full- time domestic undergraduate students’ median estimate of their debt at graduation is $38,200. For full-time domestic postgraduates, the median estimate is $54,100. 

“... I now often eat meals at university, rely on friends to bring food over or pay for the ingredients so I can cook for them. I don’t eat much anymore ...” (Indigenous full-time undergraduate student) 

“... The stress of constantly worrying about how to pay next [month’s] rent or simply paying for food is really hard.” (Domestic full-time undergraduate student) 

International Students

Almost one in two (49.2 per cent) international undergraduate students have estimated expenses greater than their estimated income. International undergraduate students have a median income of $19,200 but a median annual spending of $20,000. 

One half of international undergraduate students are in paid employment. International students who work do a median of 15 hours a week. Nine in ten (89 per cent) international undergraduate students are financially supported by family or partner. 

Around 50 per cent of international undergraduate students are worried about their financial situation, compared to almost 60 per cent for full-time domestic students. Some 14 per cent regularly go without food or other necessities because they can’t afford them, which is consistent with domestic students. 

Almost 55 per cent of international undergraduate students have some savings that they can draw on in case of serious financial difficulties, with 38 per cent of students reporting that they have had to use savings in 2017. International undergraduates estimate much higher levels of debt at graduation than domestic undergraduates. The median estimate is $68,000.

Tourism, teddies, torts, revenge and the automation tax

 'Tourism beyond humans – robots, pets and Teddy bears', a paper by Stanislav Ivanov presented at the International Scientific Conference 'Tourism and Innovations' (14-15 September 2018, Varna) comments

Tourism is universally considered as an activity specifically reserved for humans. Although not explicitly stated, all definitions of tourism assume that the tourists are human beings. However, the advances in animal ethics, artificial intelligence and experience economy in the last decades indicate that this fundamental assumption might need revision. Travel agencies already offer trips for teddy bears, hotels have special pet policies, companies sell stones as pets, while social robots will force companies to adapt to the new technological realities. This paper focuses on these non-human travellers in tourism (home robots, pets and toys) and the specific strategic, operational and marketing issues they raise for tourist companies.

Ivano argues

Tourism is universally considered as an activity specifically reserved for humans. Although not explicitly stated, all definitions of tourism assume that the tourists are human beings (see for example UN and UNWTO, 2010). But should it be so? Recent advances in animal ethics and wellbeing (Armstrong and Botzler, 2016; Fennell, 2012, 2013; Markwell, 2015; Sandøe, Corr and Palmer, 2016), artificial intelligence and robotics (Bhaumik, 2018; Miller and Miller,  2017; Neaplitan and Jiang, 2013; Russell and Norvig, 2016) and experience economy (Andersson, 2007; Kirillova, Lehto and Cai, 2017; Pine and Gilmore, 2011) indicate that this fundamental assumption might need revision. Travel agencies already offer trips for teddy bears (e.g. http://www.teddy-tour-berlin.de), hotels have special policies for the pets of their guests, companies sell stones as pets (e.g. http://www.petrock.com/), while social robots will force companies to adapt to the new technological realities (Agah, Cabibihan, Howard, Salichs, and He, 2016; Ivanov, 2017; Nørskov, 2016). The presence and the future influx of these non- human travellers in tourism (home robots, pets and toys) requires that we broaden our perspective on who the traveller is, how he/she/it is involved in tourism activities and how should travel, tourism and hospitality companies address the specific strategic, operational and marketing issues these non-human travellers raise. This paper contributes to the body of knowledge by focusing on the non-human travellers in tourism, their specific characteristics, the challenges faced by travel, tourism and hospitality companies in regard to these non-human travellers and the ways to cope with the challenges. 

Non-humans are actively engaged in tourism and hospitality services. Table 1 provides some examples of animate and inanimate entities that are involved in the provision or the consumption of tourist services. The animate non-human entities have a long history and important role in tourism (e.g. animals in zoos, animals used for safaris, photo safaris or riding, or pets travelling with their owners) (Carr and Broom, 2018), while due to technical reasons the inanimate entities (like chat bots and robots) have only recently been adopted for provision of travel, tourism and hospitality services (e.g. Ivanov, Webster and Berezina, 2017). However, the delivery of tourist services for non-animate human entities is nearly non-existent and is mostly anecdotal. Non-animate entities are actually perceived as objects, items or things that lack consciousness, needs, wants, or desires, hence they are excluded by default from the list of potential consumers of travel, tourism and hospitality services. Nevertheless, the owners of these entities consume travel, tourism and hospitality services and travel together with their non-animate entities, thus tourist companies need to provide certain services for these entities (e.g. robot-friendly hospitality facilities, repair services, storage, etc.) in order to be able to serve their human customers. Moreover, some owners of inanimate non-human entities send them on trips (or ‘pseudo-trips’?), probably due to the need of ego enhancement (Ivanov, 2008; MacCannell, 2002) through stories in social media of their toy/robot undertaking a ‘tourist’ trip, sense of belonging to a specific social group, special emotional attachment to the entity or as a substitute or an extension of owner when (s)he cannot personally undertake such a trip to the destination. While the research literature is abundant of studies on travelling pets (Gretzel and Hardy, 2015; Hung, Chen and Peng, 2016; Kirillova, Lee and Lehto, 2015; Taillon, MacLaurin and Yun, 2015) and has already started to pay attention to robots and chatbots as service providers in tourism (Ivanov and Webster, 2018; Ivanov, Webster and Berezina, 2017; Ivanov, Webster and Garenko, 2018; Kuo, Chen and Tseng, 2017; Murphy, Hofacker and Gretzel, 2017; Tussyadiah and Park, 2018), our review of related literature has not revealed yet a study that deals with inanimate non-human travellers, besides two notable exceptions. Ivanov and Webster (2017a) focuses on the design of robot-friendly hospitality facilities and emphasises that the ability to serve guests’ own mobile robots would be a key competitive advantage for accommodation establishments in the future. In another paper, Ivanov and Webster (2017b), the same authors elaborate on the role of robots as consumers of services and set a research agenda for further studies in the field. This paper tries to partially fill in this gap and to delve deeper into the field of non-human travellers, i.e. the non-human ‘consumers’ of travel, tourism and hospitality services.

'Revenge Against Robots' by Christina Mulligan in (2017-18) 69 South Carolina Law Review 579 comments

 When a robot hurts a human, how should the legal system respond? Our first instinct might be to ask who should pay for the harm caused, perhaps deciding to rest legal liability with the robot's hardware manufacturer or its programmers. But besides considering tort or criminal actions against corporate and human persons, legal actors might also target the most immediate source of the harm the robot itself. 

The notion of holding a robot accountable for its actions initially evokes absurd and amusing mental images - a prosecutor pointing to a smart toaster shouting, "And what do you have to say in your defense? Jury, note that the toaster says nothing. It says nothing because it is guilty." And it is easy to laugh at this scenario and brush the idea aside. But there are more rational ways to hold robots accountable for their actions and reasons why law and policy makers would want to do so. 

This Essay proceeds by first exploring how vengeful responses to wrongdoing may provide significant psychological benefits to victims (Part II). It goes on to argue that taking revenge against wrongdoing robots, specifically, may be necessary to create psychological satisfaction in those whom robots harm and addresses the concern that punishing robots would psychologically injure humans (Part III). The Essay then shifts focus to robots themselves, arguing that it is justifiable for humans to blame robots for their actions because, like animals, autonomous robots are best understood as the causes of their own actions (as "agents") (Part IV). Finally, the Essay evaluates whether a robot's moral culpability is relevant to the issue of robot punishment (Part V) and considers how revenge against robots could be implemented (Part VI).

‘Could AI Agents Be Held Criminally Liable: Artificial Intelligence and the Challenges for Criminal Law’ by Dafni Lima in (2017-18) 69 South Carolina Law Review 677 comments

For the past few decades, artificial intelligence (AI) seemed like something out of a science fiction work; the concept of a human-made intellect that could gain sufficient autonomy in order to make its own, independent choices is still quite unfamiliar for most. In recent years, rapid technological development has led to products that have evolved to increasingly incorporate Al elements. From smart products to drones to the Internet of Things, social reality has advanced beyond what was technologically feasible when relevant laws were drawn up and enacted. Smart technical systems that can operate in the absence of constant human input pose a set of questions particularly challenging for concepts salient for criminal law and its application in practice. 

While in the past Al applications have been used more and more broadly in fields ranging from computer science to finance to medicine, we now stand on the verge of the first major breakthrough in widespread application of Al in a way that is recognizable by the mass public: autonomous vehicles.' Smart cars that can safely navigate traffic are hardly a fantasy anymore; they have been in development for some years now, and the first versions are already on the streets of major U.S. cities. In 2011, Nevada was the first state to allow and regulate the operation of autonomous vehicles, and as of 2017, thirty-three states have introduced legislation that is related to the issue; twenty of them have already passed relevant legislation, and a further five have seen relevant executive orders issued. 

Operation of autonomous vehicles comes with great advantages: it will arguably increase mobility for social groups like the elderly or people with disabilities, it will provide greater safety on the road by providing a more restful travel for professional drivers and arguably guarantee increased adherence to traffic laws, as well as allow drivers to be more productive when travelling, as the autonomous car could take over for the most part. The future of autonomous cars is still not entirely shaped as versions based on a varying degree of automation are developed, some requiring a standby human driver and others being fully autonomous, yet autonomous vehicles in general rely heavily on Al in order to operate.

The advent of what seems to be the first mass application of Al in everyday life and in particular one that tremendously affects transportation - an essential human activity that is intensely regulated by law and where ample opportunities can arise for criminal law to intervene will undoubtedly have implications that will affect how criminal law is construed and how it is applied. More than that, it will provide an invaluable opportunity to revisit and reflect on traditional criminal law concepts such as personhood, harm, and blame since it will introduce a new "agent" into the traditional agency spectrum that is defined by capable human actors.

'Fundamental Protections for Non-Biological Intelligences or: How We Learn to Stop Worrying and Love Our Robot Brethren' by Ryan Dowell in (2018) 19 Minnesota Journal of Law, Science and Technology 305 comments

In the future, it is possible that humans will create machines that are thinking entities with faculties on par with humans. Computers are already more capable than humans at some tasks,1 but are not regarded as truly intelligent or able to think. Yet since the early days of computing, humans have contemplated the possibility of intelligent machines-those which reach some level of sentience. Intelligent machines could result from highly active and rapidly advancing fields of research, such as attempts to emulate the human brain, or to develop generalized artificial intelligence (AGI). If intelligent machines are created, it is uncertain whether intelligence would emerge through gradual development or a spontaneous emergence. Throughout this Note, such intelligent machines will be referred to as non-biological intelligences (NBIs), with emphasis on machines with human-analogous intelligence. Protection of NBIs, equivalent to protection of human research subjects, should be preemptively implemented to prevent injustice and potential grave harm to them. 

In the Introduction, this Note introduces current standards by which we define a person, as well as several developing technologies that will challenge current definitions. Part I examines technologies that may result in non-biological intelligences that exhibit human mental capacities. It then examines the concept of personhood and its legal ramifications. Part II examines how these technologies fit (or don't) into existing legal frameworks and schema. Finally, in Part III, this Note proposes preemptive implementation of protections analogous to those for research on humans for NBIs, whether such an intelligence arises as a replica of human consciousness, as a de novo construct, or via unexpected means. Part III also touches on some intervening occurrences before the emergence of NBIs, which may begin to pave the legal path for more advanced technologies.

Cryptocurreny & Robots: How to Tax and Pay Tax on Them' by Sami Ahmed in (2018) 69(3) South Carolina Law Review 697 comments

There have been many recent changes to technology that impact the ability to calculate, levy, and refund taxes. Computers have gotten faster. Tracking systems are more resilient than ever. Digital storage has become incredibly cheap and easily accessible. And artificial intelligence has added nuance to tracking; posed interesting questions about what a taxable entity should be; and may change fundamental assumptions of the entire taxation regime. 

This Paper seeks to define and tackle some of the broader issues related to these changes in technology. This Paper examines these trends in the context of cases in the broader taxation and entitlements system. Specifically, it remarks on how a number of these taxes and entitlements can be more efficiently levied and targeted to their goals. The Paper makes two claims: (i) improved technology will create new tax bases that the government can target; and (ii) technology will enable taxes to be better targeted to the populations and behaviors desired to be taxed. Technology has shifted activity away from traditional components of the economy to new previously untaxed activity. Two examples are virtual currency transactions and robots that provide labor and services. This shift threatens the ability of governments to maintain a steady stream of income as more economic income is shifted to categories that are not taxed. The big questions are whether and how virtual currency should be taxed and if robots should be taxed like humans as they become more and more similar to humans? These questions are further complicated when discussed in the context of power struggles among sovereigns with their own financial and political agendas. 

Additionally, technology has opened the path to targeting taxes and credits in ways that were previously unfeasible. For example, corporate integration seeks to create a unified system of taxation that would eliminate the bifurcated corporate and individual regimes in favor of a single taxation system. A harmonized model would correct giant inefficiencies and distortions caused by the current system. Current distortions include the preference for retention of income rather than distribution and a preference for debt rather than equity. The current barrier to integrating the tax system is an inability to trace corporate income to individual shareholders. Fortunately, blockchain gives a method for tracing income and provides an avenue to achieve integration. 

. This Paper is part of a larger scholarly agenda on technology and taxation. Existing scholarship can primarily be grouped into describing proposals for how to change particular tax provisions (without looking at technology) or those that discuss the impact of technology on certain areas of law (very little has been written at the intersection of technology and tax). The scope of this Paper focuses on postulating a broader methodology of how governments should reformulate their approaches to understanding and levying taxes in an era of improved technology. Future scholarship would aim to expand this type of scholarship. For example, there will be new opportunities for taxation in other fields with advancements, such as with renewable and sustainable energy technologies. Updated technology will likely require updated approaches and frameworks for taxation. Another example may be contributions at the intersection of tax law and other areas of law, such as tort law. Tax law could be a useful tool to resolve some of the legal and philosophical dilemmas in the assignment of liability and risk in an era of autonomous technology. 

Part IV chronicles the biggest and most relevant changes in technology as they affect taxation. Part V expounds the current literature on the taxes and technologies to be discussed in the Paper. Part VI discusses the two primary claims of the thesis: new tax bases and better targeting. Additionally, it discusses prescriptive solutions to how the particular taxes or entitlements should be reformed to most effectively achieve their goals. Finally, Part VII synthesizes some concluding thoughts and a general methodology for reexamining the basic assumptions of our taxation regime.

Ahmed goes on to ask 'Can Artificial Intelligence Be Held Criminally Liable for Cheating on Taxes or Advising Others to Cheat?', responding

 An interesting theoretical question which will cease to be "theoretical" in the near future-is about who would maintain liability in the case that an autonomous robot intentionally filed its own tax return incorrectly, because it determined the probability of being discovered was low relative to the benefits of the evasion? More simply put, is there such a thing as mens rea, or criminal intent, for artificially intelligent beings? Can they even have intention? 

i. Current Technology Does Not Enable Any of the Main Objectives of the Criminal System by Holding Robots Criminally Liable 

Whether the role of criminal law is retributive, deterrent, rehabilitative, or incapacitating,we potentially compromise these goals in a system with autonomous machine beings. As of current developments, they cannot foreseeably express the fundamental human emotions that cause humans to be deterred or rehabilitated and it would be difficult to argue that exacting vengeance on a machine will successfully vindicate human injury. And while a machine can be "incapacitated" by updating its code, pinpointing the exact portion of code that caused it to respond and learn such behavior may not be easily discoverable. 

However, technology could advance to the point where computers do become capable of expressing human emotion-and potentially even learn to respond to behavior in a manner consistent with retribution or deterrence.  But given the uncertainty of such developments, artificially intelligent beings should not yet be treated as persons for criminal liability purposes; though, future developments may enable criminal punishment to effectively modify the behavior of robots. Such advances would make a personhood framework appropriate for such beings. 

ii. Criminal Liability Also Inappropriate for Other Parties 

Holding the programmer liable in such a case may also not make sense, especially if he or she did not anticipate the actions of the machine (the programmer would not possess the requisite mens rea). Nor would it make sense to impute intent to the corporation or individual owning the machine because the machine possesses its own independent decision-making and is programmed to learn from humans, partially via mimicry.'  Furthermore, corporations might be disincentivized from using advanced technologies if such a liability risk exists for unknown or technologically unproven areas. As a result, actions that would normally be considered criminal, such as tax evasion, could potentially be punishable with only civil fines, or else risk an "unfair" conceptualization of criminal law liability 

b. Jurisdictional Questions Related to Artificially Intelligent Beings 

Another question that will need to be answered is whether the government would honor the status of artificially intelligent beings as being domiciled in a foreign country if they are conducting business from tax havens-in the case that they are considered persons. The mechanism of operation for these machines will likely continue to be based on the "cloud," a reference to the phenomenon of "Intemet-based computing that provides shared processing resources and data to computers and other devices on demand.""' Cloud computing systems, like Watson, host contents on the internet rather than at specific servers in a physical location;  thus, artificially intelligent beings on the cloud will be deployable in any location around the world without requiring control from a source within the United States. 

Furthermore, even artificially intelligent robots that are developed by a corporation based in the United States or a developer from the United States could still autonomously relocate to a tax haven and conduct business there. Should the work performed by the robot be taxed based on the location of the program's development (this could be an extraterritorial violation),  or the location of the corporation, or even the location of the actual machine in the case that it is considered a person and has established a domicile? There seems to be no clear answer to this question because the tax law appears able to accommodate treatment of autonomous machines similarly to the way it treats corporations as persons but such treatment may be inconsistent with the necessity to tax robots as they replace more and more taxable human labor. 

c. Robot Tax 

There have been many proposals for a robot tax, and even Bill Gates has called for a tax on autonomous machines that replace the jobs that individuals are currently performing. More officially, the European Parliament considered (although ultimately rejected) such a tax. The European resolution looked at a number of various ethical and financial implications of more complex artificial intelligence capabilities.One of these principles referred to the establishment of a tax to provide a "general basic income" to people to offset the losses in taxation from the workforce. So while robots are currently not taxed, the more important question is whether they should be. 

i. Advantages of a Robot Tax 

The key idea behind a robot tax is that the displacement of human workers' jobs by robots will cause a rise in unemployment by humans. The tax levied on many of these jobs are key revenue sources for governments, and the absence of them being taxed will result in a smaller revenue pool and thus potentially less resources to distribute handouts to those such as the impoverished or unemployed. Companies and their employees both pay taxes on any wages paid to employees. Robots are currently exempt from any similar sort of tax, so there are currently great efficiencies for companies to replace their human labor with robots. 

ii. Disadvantages of a Robot Tax 

The key disadvantages are that (i) innovation in robot technology will be stifled; and (ii) taxable revenues may actually not decrease as a result of the extra productivity that robots deliver. 

As discussed earlier, robots, which do not currently carry wage taxes, are replacing human labor subject to high wage taxes. This large differential results in large incentives for innovators to develop machines to replace human labor. As the differential decreases, there is smaller value creation by using robots. Thus, innovators cannot capture as much value and will not create technologies that may have had some value with a higher differential because there is less value to capture. 

By incentivizing robot technology with little or no tax, the productivity gains may be higher than a high tax. Companies that own robots will still be required to pay corporate tax on profits derived from them. The loss in taxable revenue from the displacement of human jobs may be offset by the large gains in robot productivity. Additionally, taxes are collected on the sale of robots to companies, which could be a great revenue stream if the numbers of robots sold skyrocket in a new era of robots.

Terminations, Privacy and Protests

'Knowledge of current abortion law and views on abortion law reform: a community survey of NSW residents' by Alexandra L. Barratt,  Kevin McGeechan,  Kirsten I. Black,  Julie Hamblin and  Caroline de Costa in (2018) Australian and New Zealand Journal of Public Health reports results of a community survey of 1,015 NSW residents’ knowledge of current abortion law and views on abortion law reform.

Some seventy‐six per cent of respondents were unaware that abortion remains a criminal offence in the Crimes Act 1900 (NSW) and 73% thought it should be decriminalised and regulated as a healthcare service. Support for decriminalisation was consistent across genders, age groups, residents of metropolitan/regional and rural areas and levels of education. Support was strong for women seeking abortion to be protected from harassment (89%) and for protester exclusion zones around clinics (81%), with support for these measures significantly stronger among regional/rural residents than Sydney‐based respondents.

 The authors conclude

Abortion law in NSW is out of step with contemporary community views. Residents are largely unaware that it remains a criminal offence and, when informed, support decriminalisation. There is strong support for legal changes to protect women from harassment and to provide protester exclusion zones around abortion clinics.

The authors state

Women's access to abortion is regulated according to different legislation in each Australian state and territory.  In most states and territories, criminal laws have been reformed to provide statutory explanations of the circumstances in which abortion is legal. In the Australian Capital Territory (ACT) only, abortion has been removed completely from criminal law and is managed under health‐related laws. In New South Wales (NSW) and Queensland (QLD), however, the legal situation remains ambiguous and unlawful abortion remains a crime in both states. 

In NSW, unlawful abortion is a criminal offence for a woman and for her doctor (or person administering the intervention) and is punishable by up to 10 years jail (Crimes Act 1900 [NSW] Part 3 Division 12). Subsequently, case law has established that abortion is lawful in NSW if the doctor has an honest opinion that continuing the pregnancy would be seriously harmful to the health of the woman.1 This test of lawfulness remains the basis on which abortion may be provided in NSW. Several efforts over time to remove abortion from criminal legislation have been unsuccessful, leaving NSW and Queensland as the only states where abortion law is still ultimately based on 19th century English law. The English law on which the provisions in relation to abortion were originally based, (Offences Against the Person Act), dates from 1861; similar provisions were removed from English law in 1967. 

Against this background, Dr Mehreen Faruqi (a member of NSW Parliament for the Greens NSW party) introduced a Bill to the NSW parliament to reform abortion law. The Bill contained three main provisions. Firstly, it removed abortion from the Crimes Act 1900, as had been done previously in the ACT. Secondly, it provided for protester exclusion zones near abortion clinics so that women attending clinics would be protected from harassment by anti‐abortion protesters. Lastly, it required medical practitioners holding conscientious objections to give women information about their options for managing unplanned pregnancy, including referrals to practitioners or clinics where abortion is available, if desired. The Bill was debated but defeated in May 2017 by 25 votes to 14, despite endorsements of support from medical practitioners, public health professionals, nurses, lawyers and other community groups. 

Previously, a community survey had been conducted in 2015 to inform the development of the Bill, and to ensure that the new legislation would reflect current community sentiment. The survey is significant as it is the first survey of NSW residents’ knowledge of abortion law in their state and the first to canvass community views on abortion law reform. Our aim in this paper is to report the methods and full results of the survey, and provide a detailed analysis of the results. Although previous surveys have measured support for legal access to abortion, information about the NSW community's knowledge of the law, as it stands currently in their state, and the community's views towards various options for abortion law reform were unknown prior to this survey. 

They go on to comment A total of 1,015 NSW residents completed the survey: 431 men and 584 women, across age ranges from 18 to 65+ years (Table 1). Due to the sampling methodology, we were unable to estimate the response rate. Instead, we compared the sample characteristics with those of the general adult population of NSW in Census data (Table 1). The majority of respondents were living in the Sydney metropolitan area, with 41% (unweighted percentage) living in regional cities or rural areas of NSW. About 60% were married or living with a partner. In these characteristics, the sample was similar to the NSW population as described in Census data. However, the sample was more highly educated than the overall NSW population. Forty per cent of participants reported identifying with a particular religious belief. 

Most respondents (73%) thought abortion should be decriminalised and regulated as a healthcare service, with 13% of respondents opposed to decriminalisation and 14% uncertain (Table 2). Support for decriminalisation was consistent across men and women and all age groups, with older citizens – especially older men – strongly supporting decriminalisation (see Supplementary File 2 – Supplementary Table). Support for decriminalisation was also consistent across all levels of educational attainment, with no significant differences by education (P=0.565). There was weak evidence that support for decriminalisation may be higher among regional and rural residents (77%) than among Sydney residents (71% support, P=0.068), see Table 3) 

Most respondents (78%) thought there should be a legal responsibility for medical practitioners, regardless of their personal views, to provide referrals and objective information on options for unplanned pregnancy (Table 2). Views were divided as to whether medical practitioners should have the right to refuse an abortion if they hold a conscientious objection (50% thought they should have this right, and 36% thought they should not, with 13% undecided). 

There was a strong majority view (89% agreed or strongly agreed) that women seeking abortion should be protected from harassment or any form of threatening behaviour. Consistent with this, 80% supported the establishment of protester exclusion zones around abortion clinics (Table 2). 

In general, knowledge of the legal status of abortion, support for decriminalisation and support for protecting women were significantly higher among regional and rural respondents (Table 3). For example, 93% of regional and rural residents (vs. 87% Sydney residents) agreed that women seeking abortion should be protected (P=0.0021), and 86% (vs. 79% in Sydney, P=0.018) supported exclusion zones around abortion clinics. Support for these measures did not vary by level of educational attainment (data not shown). 

Overall, 47% of respondents reported that they knew someone who had had an abortion, 56% of women and 38% of men. More regional/rural residents reported knowing someone who had had an abortion (53% regional/rural vs. 46% Sydney residents, P=0.030). Consistent with previous surveys, 58% of respondents thought women should be able to obtain an abortion readily and 29% that abortion should be allowed in some circumstances, and few respondents (5.6%) thought abortion should not be allowed in any circumstances.

They note

We found three‐quarters of respondents in this survey were unaware that abortion is currently listed as a criminal offence in NSW legislation under the NSW Crimes Act, an Act that has been in force in NSW since 1900. Once informed, there was strong support for decriminalisation, with approximately three‐quarters of respondents stating that abortion should be decriminalised and regulated as a healthcare service. Majority support for decriminalisation was consistent across men and women and all age groups and was supported by more regional/rural residents than Sydney residents. There was a strong majority view (89%) that women seeking abortion should be protected from harassment or any form of threatening behaviour. Consistent with this, 80% supported the establishment of protester exclusion zones around abortion clinics. Almost half the respondents (47%) reported they knew someone who had had an abortion. Of note, more regional and rural residents knew someone who had had an abortion, thought abortion should be decriminalised and thought women seeking abortion should be protected from harassment. Abortion clinics in some rural centres, notably Albury on the border of NSW and Victoria, are subject to strong protester activity. This presents an impediment to access and engenders feelings of stigma and intimidation among women attending the facilities. These barriers may explain why there was stronger support for decriminalisation in regional and rural respondents in NSW.  .... 

NSW and Queensland remain the only Australian states that still retain criminal offences for abortion dating from the 19th century. In Queensland, decriminalisation and law reform is under active consideration; whereas, in NSW there are no current plans towards decriminalisation. It is unclear why the NSW parliament is so out of step with community opinion and with legal changes in other Australian jurisdictions. One reason may be the existence of strong, socially conservative factions in each of the two major political parties in the NSW parliament, with the result that NSW abortion law reform has lacked an effective champion. This, together with the influence of socially conservative minor parties, appears to have prevented legislative change longer in NSW than in other Australian jurisdictions. In Queensland, there has also been little political support for abortion law reform in the past. However, the issue is currently being considered by the Queensland Law Reform Commission, and it is possible that any recommendations made by the Law Reform Commission will form the basis of legislation to decriminalise abortion in Queensland. 

For NSW women, accessing abortion is likely to remain challenging, especially for those in regional and rural areas. Despite hope that PBS subsidisation of medical abortion would make abortion much more accessible, uptake of medical abortion is still relatively low and the majority of women choose surgical abortion. Surgical abortion, however, remains mainly limited to large metropolitan centres where abortion is provided through a number of clinics that operate as fee‐for‐service clinics, as most public hospitals do not provide abortion in NSW. This situation results in the capacity to pay limiting access for some women, especially rural residents. In a recent study of Australian women having an abortion, 25% of women reported travelling more than one hour to have it and an additional 11% reported having to stay overnight. Median out‐of‐pocket costs were $470, even with the Medicare rebate. Costs were higher for abortions performed after 13 weeks, and for women who had to travel more than four hours. A total of 34% of women said they found it difficult/very difficult to pay for the abortion. Women who experienced difficulties paying for the abortion were more likely to present for later abortion, suggesting that access remains a barrier to timely abortion provision. 

Finally, unlike other women in Australia, NSW women remain unable to make their own decision about whether or not to have an abortion and remain reliant on doctors to make this judgement for them, raising questions about the adequacy of women's autonomy and reproductive rights.

'Anti-Abortion Protest and the Effectiveness of Victoria’s Safe Access Zones: An Analysis' by Ronli Sifris and Tania Penovic in (2018) 44(2) Monash University Law Review 317 comments

 This article is concerned with conduct which is aimed at averting women from terminating a problem pregnancy and takes place around clinics that provide abortion services. Such conduct is widely referred to by the seemingly benign term of ‘protest’ but in fact encompasses a range of harmful activities targeted at individuals seeking access to premises at which abortions are provided. We examine the impact of this conduct and the operation of laws which seek to address it. Legislation providing for safe access zones around clinics which provide abortion services has been introduced in five Australian jurisdictions. After outlining the safe access zone legislation enacted in Australia, we examine the operation of the Victorian legislation with reference to qualitative empirical research that we have undertaken. Drawing on the observations of the health professionals we have interviewed, we consider the context in which the Victorian legislation was introduced, including the experience of protest outside the Fertility Control Clinic (‘FCC’) in East Melbourne. The impact of anti-abortion protest outside clinics is then considered in conjunction with the objectives of Victoria’s safe access zone legislation and an examination of whether these objectives are being met. The final portion of our article examines objections to safe access zones. Those who oppose safe access zones have characterised them as an infringement of their rights. The right to free speech is the most frequently cited basis for their resistance to these provisions. We therefore consider whether the legislation is vulnerable to challenge on constitutional or human rights grounds. We analyse whether the legislation infringes the freedom of political communication implied in the Australian Constitution and conclude by examining the compatibility of safe access zones with the protesters’ rights under international human rights law.

‘Anti-Abortion Clinic Activism, Civil Inattention and the Problem of Gendered Harassment’ by Pam Lowe and Graeme Hayes in 53(2) 2019 Sociology 330-346 comments

In the UK, there is evidence of a recent increase in anti-abortion activism outside clinics. In response, abortion service providers have called for the introduction of ‘buffer’ zones to protect women from ‘harassment’ while accessing abortion services. Drawing on two datasets – extensive ethnographic fieldwork, and a content analysis of clinic client comment forms – we deploy Goffman’s concept of ‘civil inattention’ to further our understanding of the material practice of anti-abortion clinic activism. We find that although anti-abortion activists understand their own actions to be supportive, practices of religious observance outside clinics inescapably draw attention to the site and to the act of accessing healthcare, inherently challenging normative expectations of privacy and confidentiality. Our analysis suggests that anti-abortion activism outside clinics consequently violates social rules governing encounters with strangers in specific places and reinforces gendered hierarchies. As such, they are often experienced as acts of gendered harassment. 

In mainland Britain, abortion clinics have recently become highly visible sites for the making of public claims over the terms of the provision of reproductive rights, as a series of anti-abortion groups have begun to stage actions directly outside clinics. In the North American context, where anti-abortion actions outside clinics have been recurrent since the mid-1980s, there is now considerable research on the claims-making tactics of anti-abortion groups. Perhaps most prominently, scholars have focused on the different framings of anti-abortion discourse, including moves in the US from ‘foetal personhood’ frames (e.g. Petchesky, 1987) towards a ‘woman’s health’ frame (e.g. Saurette and Gordon, 2015). The instrumental use of foetal imagery by anti-abortion groups has often provided a point of departure (Jasper, 1997; Rohlinger and Klein, 2012). Equally, scholars have analysed processes of recruitment and organisational growth in the US anti-abortion movement (Haugeberg, 2017; Munson, 2008), and the development of litigation strategies and free speech advocacy by conservative activists in clinic disputes (Lewis, 2017; Wilson, 2013). 

Yet we know relatively little about the material and situational practices of anti-abortion clinic activism, or – from a micro-sociological perspective – how these specific practices shape the experiences of women seeking to terminate a pregnancy. Here, we explore the relationship between the staging of anti-abortion activism outside clinics and the experiences of women accessing abortion services. We do so in mainland UK,1 where academic discussion of anti-abortion activism is noticeably thin, where there has been an increase in anti-abortion activism and where abortion service providers and rights campaigners have consequently called for the introduction of ‘buffer’, or exclusion, zones around clinics, in order to combat what they see as the harassment of clinic clients by these groups. Our focus is on ‘public witness’ forms of anti-abortion activism, acts of presence and of looking. Developing Goffman’s (1963) understanding of the social rules of public conduct, we argue that as anti-abortion activism at clinics is structured around the potential production of ‘face engagements’ in public space, it has significant implications for the definition and reproduction of the social norms which underpin the availability of these engagements, and thus for the delimitation and operation of gendered hierarchies of power. 

We propose two key advances in the understanding of anti-abortion activism. First, through our ethnographic observation of anti-abortion activism and analysis of comment forms completed by abortion clinic clients, we bring into tension two original datasets, enabling us to capture the dominant practice of activism outside abortion clinics in Britain. Most significantly, our data enable us to capture the relationship between these practices and the experiences of women forced to negotiate them. Second, in response to our data, we argue that clinic activism is experienced by women as intrusive through the condition of its presence, precisely because it subjects them to a critical unwanted scrutiny similar to other unwanted street encounters. Combining a Goffmanian approach with attention to the power relations that structure the use of public spaces thus enables us to draw out the inherently stigmatising structure of anti-abortion activism outside clinics, even where these actions are apparently designed to be non-aggressive. 

In what follows, we first set out the British context of abortion, and of anti-abortion activism, before discussing questions of stigmatisation and, drawing on Goffman and Gardner in particular, civil inattention and gender. We then elaborate our research design and methods, before presenting and analysing our data from observational fieldwork and clinic client comment forms. We conclude by situating abortion clinic activism within broader understandings of gendered harassment and civil inattention.