Climate Change Litigation

'A ‘Next Generation’ of Climate Change Litigation?: An Australian Perspective' by Jacqueline Peel, Hari M. Osofsky and Anita C Foerster in Oñati Socio-Legal Series (Forthcoming) comments

Since conclusion of the Paris Agreement and the high-profile Urgenda case, potential new avenues for strategic climate litigation have received considerable attention in many countries, including Australia. Australia already has a substantial climate jurisprudence, primarily involving administrative challenges under environmental laws. This paper aims to examine the prospects for a “next generation” of cases focused on holding governments and corporations to account for the climate change implications of their actions. We draw on analysis of existing legal precedent and emerging cases to explore four key aspects: drivers for next generation lawsuits, potential legal avenues, and likely enablers and barriers. The paper uses the Australian experience as a case study but draws also on litigation trends globally. We find that the most fruitful strategy for future climate change litigation is likely to be one that advances lower risk cases building from the base of existing litigation, while simultaneously attempting novel approaches.

Decolonisation

'Decolonizing Privacy Studies' by Payal Arora in (2018) Television and New Media comments 

This paper calls for an epistemic disobedience in privacy studies by decolonizing the approach to privacy. As technology companies expand their reach worldwide, the notion of privacy continues to be viewed through an ethnocentric lens. It disproportionately draws from empirical evidence on Western-based, white, and middle-class demographics. We need to break away from the market-driven neoliberal ideology and the Development paradigm long dictating media studies if we are to foster more inclusive privacy policies. This paper offers a set of propositions to de-naturalize and estrange data from demographic generalizations and cultural assumptions, namely, (1) predicting privacy harms through the history of social practice, (2) recalibrating the core-periphery as evolving and moving targets, and (3) de-exoticizing “natives” by situating privacy in ludic digital cultures. In essence, decolonizing privacy studies is as much an act of reimagining people and place as it is of dismantling essentialisms that are regurgitated through scholarship. 

Arora goes on to state

 Privacy studies is in its heyday. What was once on the fringes of multiple disciplines is now centerfold and for good reason. Innovations such as social media, ubiquitous computing, mobile platforms, and smart technologies are increasingly datafying our lives. Big data analytics capitalizes on these massive datasets to address previously intractable problems across wide-ranging fields including health care, education, retail, and banking. While this has yielded enormous benefits for the state and the market, it has alarmingly come at the cost of privacy (Cohen 2012). 

This has led to the burgeoning of studies from diverse disciplines in the last decade to gauge what privacy is “worth” to individuals (Acquisti et al. 2013; Heikkilä 2018; Kokolakis 2017). Implicit in this body of research is the notion of privacy as a currency, as a rational trade-off, and as an exchange value to enable policy makers, legal scholars, and businesses to estimate how much customers care about the protection of their personal data. Privacy studies has come to be dominated by this capitalistic worldview. Privacy as a value is subsumed by market logic. This is embedded in the prevailing “dataism” ideology of objectivity arising from the quantification of our social behavior, revealing insights into our personal lives (van Dijck 2014). 

In recent years, a number of scholars have sounded the alarm on the mythologies perpetuated by big data claims, and the normalizing of the “privacy rich” and “privacy poor” divides in access, management, ethics, representation, and interpretation (Arora 2016; Boyd and Crawford 2012; Couldry and Powell 2014; Milan and Trere 2017a; Pasquale 2015). There is a demand to estrange data from demographic generalizations and question underlying cultural assumptions, providing privacy its “contextual integrity” (Nissenbaum 2009). Of particular concern are the new forms of discrimination emerging through predictive data analytics, marginalizing the already vulnerable subjects of society (Leurs and Shepherd 2017). Studies on privacy harms through datafication such as racial profiling and policing (Noble 2018), biometric surveillance in the postcolonial context (Arora 2016), and state automation of welfare systems (Eubanks 2018), have pushed this agenda further. 

At the heart of this momentum is a call to recognize the deeply structured, essentializing and historically reproduced power asymmetries within social and technical norms, knowledge, values, and infrastructures and counter this by pushing forward the notion of the “South” as “resistance, subversion and creativity as responses to situations of marginalization of various kinds” (Milan and Trere 2017b). This essay responds to this call, particularly on the sidelining of the Global South as it pertains to privacy studies.

Uncertified Practitioners and Prediction

Another practitioner without certification bites the dust.

The Australian Health Practitioner Regulation Agency (AHPRA) reports that Majid Rahebi was convicted in the Local Court of New South Wales after pleading guilty to all charges for falsely representing that he was authorised or qualified to practise as a dentist and $18,750 for performing restricted dental acts. He was also ordered to pay approximately $19,950 in costs.

Rahebi’s MJ Dental Care Pty Ltd was also charged with falsely representing that Mr Rahebi was authorised or qualified to practise as a dentist. The company was fined $11,250.

The charges related to Mr Rahebi’s conduct between 15 November 2017 and 24 February 2018 while working at MJ Dental Care, located in Guildford West, NSW.

Rahebi was charged on 14 May this year with 44 counts of falsely representing that he was a registered dentist and 31 counts of performing a restricted dental act. Rahebi’s business,

AHPRA states that Rahebi has never been registered as a dentist or as any other health practitioner in Australia and holds no formal dental qualifications, although other reports indicate he had been a dental technician in Iran.

 He had provided dental services through MJ Dental under the guise of being a registered dental practitioner. He represented himself to the public and to his patients as being authorised or qualified to practise in the dental profession. He consulted with patients and carried out dental treatment, including restricted dental acts. The restricted dental acts included significant invasive procedures such as root canal treatment, crowns and tooth extractions. Rahebi additionally possessed and administered anaesthetics (ie restricted prescription medications) without authorisation.

Considering potential revenue from the breaches of the law a higher scale of penalties might serve as a useful deterrent for such behaviour.

In June this year AHPRA noted Edward Lipohar was convicted in the Ringwood Magistrates’ Court after pleading guilty to three charges. They included holding himself out as (claiming to be) a dental specialist (orthodontist), and two charges of performing restricted dental acts on two patients.

 The charges related to Lipohar’s conduct between November 2015 and September 2016 while working at an orthodontic business with premises in Victoria. During this time he attempted to carry out orthodontic procedures, including fitting corrective or restorative dental appliances. Orthodontic procedures are restricted dental acts, restricted to  someone registered as a a dentist.  Lipohar continued to attempt those treatments after being directed to stop by AHPRA in August 2016. 

Lipohar has never held registration as a dental practitioner or as a registered health practitioner or student under the National Law with any National Board.

AHPRA comments

The court heard Mr Lipohar had little knowledge of the correct procedure and the patients he attempted to treat were unaware he lacked the necessary skills. Orthodontists identified significant problems with one patient’s teeth in subsequent years, while another experienced pain after Mr Lipohar fitted a retainer. Complaints were later submitted to AHPRA which filed charges against Mr Lipohar following an investigation.   

At sentencing, Mr Lipohar was ordered to pay legal costs to AHPRA of $25,000 in addition to the $65,000 fine.

'Outcomes of notifications to health practitioner boards: a retrospective cohort study' by Matthew J. Spittal, David M. Studdert, Ron Paterson and Marie M. Bismark in (2018) 16(38) BMC Medicine is a useful complement to 'Mind the Information Gap: Quantifying the Courts’ Role in Responding to Patient Harm, 1989 to 2013' by Wendy Bonython and Bruce Baer Arnold in (2018) 25(2) Journal of Law and Medicine 549-571, noted here.

Spittal et al  note

Many countries entrust oversight of doctors and other health professionals to practitioner boards. A core mission of such boards is to protect the public from unsafe practice. Boards rely on patients, practitioners and their peers, employers and other agencies to bring risks to their attention and can employ a range of assessment and investigation processes to evaluate concerns about a practitioner’s health, performance or conduct. In cases where a practitioner poses a risk to patient safety boards can initiate a range of actions, including imposing conditions on the practitioner’s registration or suspending their licensure to practice. Actions that restrict ability to practice may have profound effects on affected practitioners – damaging livelihood, reputation, and potentially personal well-being. Imposing such actions therefore requires boards to chart a delicate course between protecting patients from harm and respecting the rights of practitioners. 

Previous research has examined factors associated with disciplinary action against doctors. Studies have compared disciplined doctors with controls drawn from the broader medical workforce, with colleagues who were investigated or charged but not disciplined, and with colleagues who incurred less serious sanctions. In general, these studies identify several risk factors for incurring disciplinary sanctions, including male sex, late career stage, and practice in certain specialties (surgery, obstetrics and gynecology, psychiatry, and general practice). In addition, longitudinal studies of doctors have shown higher rates of disciplinary actions among physicians who performed poorly during residency and physicians who lack specialty certification. Relatively few studies have focused these types of analyses on nurses, and fewer still have examined pharmacists, psychologists, dentists, and other allied health professions. Moreover, this body of research tends to be profession specific. For example, no previous studies have directly compared doctors’ likelihood of regulatory action with risks experienced by other health practitioners. 

In Australia, 14 health professions, including doctors, nurses, dentists, psychologists, and pharmacists, are regulated by a unified scheme that has operated since 2010. The scheme covers all states and territories, which creates a rare opportunity to use national, longitudinal data to examine the incidence and outcomes of “notifications of concern” (hereafter, “notifications”) relating to multiple professions. We conducted a retrospective cohort study of all notifications received by the national agency over a 2 year period. We estimated the incidence of notifications among health practitioners and tested for associations between various characteristics of notified practitioners (e.g., age, sex, profession) and notifications (e.g., issue type and source of notification) and the adjudicated outcomes of these notifications, particularly restrictive actions. 

Our goal was to advance understanding of how this key regulatory regime operates. We were particularly interested in generating information with the potential to facilitate efficient adjudication and guide prevention efforts. We hypothesized that there would be systematic differences in rates of notification between professions, and that there would be relatively high rates of restrictive action against practitioners from certain professions (e.g., psychologists) and for notifications about certain issues (e.g., drug or alcohol misuse). ...

The authors comment

This study of notifications lodged over a 2-year period against practitioners from 10 health professions found an overall rate of six notifications per 1000 practitioners per year. Doctors and dental practitioners had relatively high notification rates and nurses and midwives had relatively low rates. Final determinations were made on the majority of notifications within a year, although around one in ten took more than 2 years to resolve. In nearly 70% of cases, no further action was taken. About 10% of notifications resulted in restrictive actions, almost all of which involved some form of undertaking or conditions on practice. Only 21 notifications – about 0.3% of the total lodged – resulted in removal from practice. Notifications from peers and employers, notifications about health problems (particularly drug or alcohol problems), and notifications against dentists and psychologists had the highest odds of ending in restrictive actions... 

The regulation of health practitioners in Australia has the primary objective of protection of the public by ensuring that only competent and ethical practitioners are registered. Handling notifications of concern about a practitioner’s health, conduct or performance looms as a key role of the national multi-practitioner regulation agency, with a complex apparatus for receiving, assessing and investigating notifications. This study suggests some interesting lessons for other international health practitioner boards. 

We found that notifications to practitioner boards about the health, conduct or performance of a health practitioner are a rare event, and responses to notifications that involve restrictive actions, such as conditions on or removal from practice, are rarer still. 

The probability of restrictive actions varied widely depending on the source of the notification (with notifications from peers more likely to result in restrictive action than those made by patients) and by profession (with notifications about doctors less likely to result in restrictive actions than those against other professions). The evidence that notifications made by fellow practitioners or employers are much more likely to lead to restrictive action than notifications made by patients and relatives or by complaint commissioners (which generally respond to patient complaints) is perhaps unsurprising. One possible explanation is that peers are better positioned to recognize legitimate bases for a notification than are patients. Relatedly, peers may refrain from notifying in all but the most egregious instances. A competing explanation relates to the adjudication process: notifications by peers may receive closer attention than notifications by patients. Given the increasing emphasis on the role of patients and families in patient safety, it would be of concern if issues raised by those on the receiving end of care are discounted in assessment processes dominated by peer opinion. 

We found that nearly half of all notifications were due to concerns about performance issues, yet very few of these notifications resulted in restrictive actions. In contrast, relatively few notifications concerned health impairments, but a substantially larger proportion of them ended in restrictive actions. Part of the explanation for this difference may relate to issues of evidence and proof. What constitutes an unacceptable level of performance may be more difficult to determine, both for the notifier and the adjudicator, than the existence of an impairment that endangers safe care. Performance concerns inevitably raise the specter of judging what is acceptable care, an area where regulators (advised by members of the profession) have always treaded warily. Professional reticence to criticize poor care and vigorous defense lawyers likely also play a part. 

Consistent with previous studies, notification rates were higher among male practitioners and older practitioners. However, there was no difference between males and females in the odds of restrictive action once a notification was received, and there was no trend for age. 

Finally, the variation we observed between professions, both in the rate at which notifications were made, and the rate at which notifications ended in restrictive actions, is striking. Doctors, for example, had one of the highest rates of notifications, but those notifications were less likely to result in restrictive actions than in other professions. There are several possible explanations for such variation – they may be due to interprofessional differences, such as whether substandard care may directly cause harm (including pain), in the underlying rate of unprofessional behaviors, in the likelihood that any given episode of unprofessional behavior will be notified, in “case mix” (i.e., the nature and legitimacy of notifications), and in how strictly boards respond. We cannot disentangle these competing explanations because we did not observe unprofessional behavior directly, other than through the decisions of boards in cases that reach them.

Repertorisation

Fancy an Australian degree that's rich with homeopathy? Apparently you should head to Torrens University.

The Torrens website refers to 'View complementary medicine courses at Torrens, and our networked schools'.

From there it is only a click or two to Torrens affiliate Southern School of Natural Therapies, which is offering a Bachelor of Health Science (Naturopathy) that includes the following units -

CAM209A Homoeopathy 1 

This subject introduces the student to the study of homeopathy and covers an introduction to homeopathic philosophy and prescribing as well as the homeopathic laws. Students are introduced to the concept of homeopathic problem definition and resolution, and introduced to case taking and principles of prescribing, case analysis and the use of homeopathic remedies. A range of acute remedies are discussed in relation to simple conditions that commonly present in a naturopathic practice. 

CAM303A Homoeopathy 2 

This subject refines students’ skills in acute homeopathic case taking and prescribing. The homeopathic laws of cure are reinforced and related to prognosis, recognition of recovery signs, remedy reactions and dosage considerations. Students analyse the data obtained when receiving a homeopathic case in terms of Hahnemannian homeopathy. Knowledge of the homeopathic materia medica is expanded and the use of homeopathic complexes is examined in relation to the body systems. 

CAM414A Homoeopathy Materia Medica and Principles 

Students who wish to further their study in homeopathy may take this elective. Further study of the underlying philosophy and principles of homeopathy including the writing of Hahneman and the provings are examined. This subject expands on acute prescribing and introduces deep acting remedies and their use. Case based study of approximately forty remedies is undertaken. Cases are examined in a holistic manner taking into account all facets of the patient’s presentation. The remedies are examined within the different classifications, minerals, animals and plants, with plants further broken down into plant families. Students further their understanding and skills in repertorisation and posology. 

CAM415A Constitutional Homeopathy 

This subject introduces and elaborates on the classical and constitutional approach to homeopathic prescribing. The materia medica is further expanded, particularly with regard to deep acting, constitutional remedies, together with expansion of organ and system approaches. Cases are reviewed for each remedy.

Wizened and dyspeptic bear that I am, I'm contemplating offering a Bachelor of Witchcraft, a Masters in Wizardry and a Graduate Certificate in Hocus Pocus. (Students are expected to supply their own ouija boards, magic crystals, eye of newt and toe of bat.)

Universities, Grey Data and Privacy

'Open Data, Grey Data, and Stewardship: Universities at the Privacy Frontier' by Christine L Borgman  in (2018) 33 Berkeley Technology Law Journal 365 comments 

As universities recognize the inherent value in the data they collect and hold, they encounter unforeseen challenges in stewarding those data in ways that balance accountability, transparency, and protection of privacy, academic freedom, and intellectual property. Two parallel developments in academic data collection are converging: (1) open access requirements, whereby researchers must provide access to their data as a condition of obtaining grant funding or publishing results in journals; and (2) the vast accumulation of “grey data” about individuals in their daily activities of research, teaching, learning, services, and administration. The boundaries between research and grey data are blurring, making it more difficult to assess the risks and responsibilities associated with any data collection. Many sets of data, both research and grey, fall outside privacy regulations such as HIPAA, FERPA, and PII. Universities are exploiting these data for research, learning analytics, faculty evaluation, strategic decisions, and other sensitive matters. Commercial entities are besieging universities with requests for access to data or for partnerships to mine them. The privacy frontier facing research universities spans open access practices, uses and misuses of data, public records requests, cyber risk, and curating data for privacy protection. This Article explores the competing values inherent in data stewardship and makes recommendations for practice by drawing on the pioneering work of the University of California in privacy and information security, data governance, and cyber risk.

Borgman concludes

Universities are as enamored of “big data” as other sectors of the economy and are similarly effective in exploiting those data to competitive advantage. They have privileged access to research data and to data about their communities, all of which can be mined and combined in innovative ways. Universities also have a privileged social status as guardians of the public trust, which carries additional responsibilities in protecting privacy, academic and intellectual freedom, and intellectual property. They must be good stewards of the data entrusted to them, especially when conflicts arise between community practices and values. For some kinds of data, good stewardship requires that access to data be sustained indefinitely, and in ways that those data can be reused for new purposes. For other kinds of data, good stewardship requires that they be protected securely for limited periods of time and then destroyed. Factors that distinguish data worth keeping or discarding vary widely by domain, content, format, funding source, potential for reuse, and other circumstances. Criteria for data protection and access also can change over time, whether due to different uses of a data collection, such as grey data being mined for research or research data being deployed for operations; transfer of stewardship within and between institutions; changes in laws and policies; or new externalities. 

The rate of data collection has grown exponentially over the last decade through both research and grey data within universities, along with data collection in the other economic sectors with which universities partner. These include government and business, social media, sensor networks, the Internet of Things, and much more. As the ability to mine and combine data improves, and technologies become more interoperable, the boundaries between data types and origins continue to blur. Responsibilities for stewardship and exposure to cyber risk increases accordingly. Risks to privacy invasion, both information privacy and autonomy privacy, accelerate as most of these data can be associated with individuals, whether as content or creators of data.  Anonymity, which is fundamental to most methods of privacy protection, has become extremely difficult to sustain as methods of re-identifying individuals become more sophisticated. Notice and informed consent remain necessary but are far from sufficient for maintaining privacy in universities or in other sectors. 

Open access to publications and to data are social policies that promote transparency and accountability in the research enterprise. Adoption is uneven because costs, benefits, and incentives for open access, especially to data, are aligned in only a few fields and domains. For most researchers, releasing data involves considerable costs, with benefits going to others. These costs may include curation (e.g., providing metadata, documentation, and records of provenance and licensing), computer storage and maintenance, software acquisition and maintenance, migration to new software and hardware, and fees for data deposit. Disposal of data also involves costs to assess what to keep and what to discard, and to ensure safe destruction of confidential or proprietary materials. Individual researchers, their employers, or their funders may bear the costs of data stewardship and responsibilities for protecting privacy, academic and intellectual freedom, intellectual property, and other values. 

None of these frontier challenges is easily addressed, nor will appropriate responses be consistent across the university sector in the U.S., much less in other countries and cultures. Data are valuable institutional assets, but they come at a price. Individuals and institutions must be prepared to protect the data they collect. These recommendations, which draw heavily on experiences in the University of California, are offered as starting points for discussion. 

A. Begin with first principles 

Universities should focus on their core missions of teaching, research, and services to address priorities for data collection and stewardship. Tenets of privacy by design, the Code of Fair Information Practice, the Belmont Report, and codifications of academic and intellectual freedom are established and tested. Implementation is often incomplete, however. For faculty, students, staff, research subjects, patients, and other members of the university community to enjoy protection of information and autonomy privacy, more comprehensive enforcement of principles such as limiting data collection, ensuring data quality, and constraining the purposes for each data element is necessary. Digital data do not survive by benign neglect, nor are records destroyed by benign neglect. Active management is necessary. Notice and consent should never be implicit. When institutions ask for permission to acquire personal data, are transparent, and are accountable for uses of data, they are more likely to gain respect in the court of public opinion. 

B.Embed the Ethic 

Data practices, privacy, academic and intellectual freedom, intellectual property, trust, and stewardship all are moving targets. Principles live longer than do the practices necessary to implement those principles. Universities are embedding data science and computational thinking into their curricula at all levels. This is an opportune moment to embed data management, privacy, and information security into teaching and practice as well. By encouraging each individual to focus on uses of data, the problem becomes personal. Rather than collecting all data that could conceivably be collected, and exploiting those data in all conceivable ways, encourage people to take a reflective step backwards. Consider the consequences of data collection about yourself and others, and how those data could be used independently or when aggregated with other data, now and far into the future. Think about potential opportunities and risks, for whom, and for how long. Study data management processes at all levels and develop best practices. Collect data that matter, not just data that are easy to gather. Interesting conversations should ensue. The Golden Rule still rules. 

C.Promote joint governance 

The successes of the University of California in developing effective principles for governing privacy and information security have resulted from extensive deliberations between faculty, administrators, and students. These can be long and arduous conversations to reach consensus but have proven constructive at creating communication channels and building trust. Many years of conversations about information technology policy at UCLA, for example, have resulted in much deeper understanding between parties. Faculty have learned to appreciate the challenges faced by administrators who need to balance competing interests, keep systems running, and pay for infrastructure out of fluctuating annual budgets. Administrators, in turn, have learned to appreciate the challenges faced by faculty who have obligations to collaborators, funding agencies, and other partners scattered around the world, and daily obligations to support students who have disparate skills and access to disparate technologies. Institutional learning is passed down through generations of faculty, students, and administrators through joint governance processes. These mechanisms are far from perfect and can be slow to respond at the pace of technological change. However, echoing Churchill’s assessment of democracy, it works better than any other system attempted to date. 

D.Promote awareness and transparency 

The massive data breaches of Equifax, Target stores, J.P. Morgan Chase, Yahoo, the National Security Agency, and others have raised community awareness about data tracking, uses of those data by third parties, and the potential for exposure. This is an ideal time to get the community’s attention about opportunities and risks inherent in data of all kinds. Individuals, as well as institutions, need to learn how to protect themselves and where to place trust online. People may react in anger if they suspect that personal data are being collected without notice and consent or think they are being surveilled without their knowledge. Universities are at no less cyber risk than other sectors but are still held to higher standards for the public trust. They have much to lose when that trust is undermined. 

E.Do not panic 

Panic makes people risk-averse, which is counterproductive. Locking down all data lest they be released under open access regulations, public records requests, or breaches will block innovation and the ability to make good use of research data or grey data. The opportunities in exploiting data are only now becoming understood. Balanced approaches to innovation, privacy, academic and intellectual freedom, and intellectual property are in short supply. Patience and broad consultation of stakeholders is needed.

'Achieving big data privacy in education' by Joel R. Reidenberg and Florian Schaub in (2018) 16(2) Theory and Research in Education 263-279 comments

Education, Big Data, and student privacy are a combustible mix. The improvement of education and the protection of student privacy are key societal values. Big Data and Learning Analytics offer the promise of unlocking insights to improving education through large-scale empirical analysis of data generated from student information and student interactions with educational technology tools. This article explores how learning technologies also create ethical tensions between privacy and the use of Big Data for educational improvement. We argue for the need to demonstrate the efficacy of learning systems while respecting privacy and how to build accountability and oversight into learning technologies. We conclude with policy recommendations to achieve these goals.

The authors comment

The improvement of education and the protection of student privacy are key societal values. On one side, Big Data offers the promise of unlocking insights to improving education through large- scale empirical analysis of data generated from student information and student interactions with educational technology tools (O’Brian, 2014). As the Data Quality Campaign (2017) has articulated, ‘data is one of the most powerful tools to inform, engage, and create opportunities for students along their education journey – and it‘s much more than test scores. Data helps us make connections that lead to insights and improvements’. But, at the same time, privacy of student information is important for education because of the adverse impact that inappropriate uses or disclosures may have on student learning and social development. In addition, fear of surreptitious monitor- ing of every mouse click and page load can create chilling effects, or possibly affect students’ well-being by amplifying performance-related stress, in ways that are detri- mental to the educational mission, as well as the goals of Big Data use in education. Algorithmic assessment and decision making may disadvantage certain learners, due to biased data or algorithms (Harel Ben Shahar, 2017) or by emphasizing indicators of learning success that undermine individuality in education (Clayton and Halliday, 2017) rather than engaging with individual students to jointly define what success may mean for them (Dishon, 2017). Big Data in education may further curtail opportunities for self-discovery by charting a path for learners personalized to their predicted aptitude instead of allowing learners to chart their own paths (Schouten, 2017). The mass collection and centralization of student information pose significant threats to student privacy (e.g. see Reidenberg et al., 2013; Reidenberg and Debelak, 2009) and raises questions about data ownership and consent (Lynch, 2017). 

These conflicts are not insurmountable as long as the use of Big Data tools in education are developed with a consideration for moral and ethical detail (Ben-Porath and Harel Ben Shahar, 2017). 

In this article, we focus on adequate safeguards for privacy in the context of Big Data in education. While recognizing that missions of education and educational institutions may change as a result of technological innovation in education, we argue that privacy safeguards will have to be provided for learners regardless of changes to the educational landscape. We focus in particular on K-12 and higher education institutions but expect that our arguments may also be applicable to non-traditional and non-institutional forms of education, such as online educational offerings. Expanding on prior work on privacy and ethical considerations for the treatment of student data, we argue that the privacy safeguards will need to be developed through technological tools, organizational approaches, and law. We further argue that the safeguards will only be successful if these various means are combined. 

We discuss specific safeguards in each category. We argue that technological measures should provide transparency about data uses, provide accountability for algorithmic decisions, and ensure the security of learners’ data. Such technological measures need to be complemented by organizational safeguards that appropriately limit access to educa- tional data and outcomes of educational data mining. Furthermore, we make the case that Big Data technologies in education should be assessed holistically with respect to both their educational impact, that is, their pedagogical benefits, as well as their impact on student privacy. With respect to law, we argue that the definition of the educational record needs to be broadened to encompass learning analytics data and thus restrict pro- cessing to ‘legitimate educational uses’. We further argue that the precautionary princi- ple should be applied to educational Big Data tools, thus requiring the assessment of potential harms when such systems are introduced into the educational process. Finally, given that public school systems and universities are major clients of educational technology vendors, public procurement criteria can provide the leverage to assure that appropriate safeguards are integrated into big data technology for education.

Services and Speech

In Casley v ABC (Human Rights) [2018] VCAT 1645 earlier this week the Victorian Civil and Administrative Tribunal has dismissed a claim, under the Equal Opportunity Act 2010 (Vic), of discrimination on the basis of political belief or activity and religious belief or activity. John Tiger Casley had claimed discrimination by the national broadcaster regarding his exclusion from a talkback radio program.

VCAT concluded that talkback is not a service to callers for the purpose of s 44  of the Act and that the claim should be dismissed for want of prosecution, in this instance being brought at least seven years after the events complained of.

VCAT states

John Casley claims the Respondents discriminated against him in breach of the Equal Opportunity Act 2010 (the EO Act), on the grounds of his political belief or activity and religious belief or activity. He says the discrimination occurred in the delivery of a service to him as a talkback caller on ABC radio. 

Mr Casley, the Applicant, was for many years a frequent caller to ABC talkback radio. He was referred to by the radio presenters as ‘John of Brighton’. He says he has not called the morning show on ABC radio operated by the First Respondent, since 2010, when he says that he was banned. He says this occurred after a call to the presenter Jon Faine, the Second Respondent. Mr Casley also claims that in the years 1997 to 2010 Mr Faine discriminated against him in the way he spoke to him. 

Mr Casley’s claim was made to the Victorian Civil and Administrative Tribunal (VCAT) in December 2017. The Respondents applied for the claim to be dismissed. The Respondents said that the claim should be dismissed for want of prosecution under section 76 of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act) (and Clause 18 of Schedule 1 to that Act) because it was made so long after the last of the events about which Mr Casley complains. Alternatively, they said the claim should be dismissed as an abuse of process under section 75 of that Act because the events complained of occurred so long ago and because they have been considered in other actions brought by Mr Casley. Thirdly, they said that the claim should be dismissed because it is not covered by the EO Act.

VCAT in addressing whether the Act applies to the claim states

The EO Act prohibits discrimination based on attributes listed in the EO Act, such as race, physical appearance, sex, marital status, gender identity, political belief or activity, religious belief or activity and other listed attributes. 

Discrimination based on these attributes is only prohibited in the areas of life set out in the EO Act. Those areas include the provision of goods and services, employment, education and accommodation. 

In other areas, the EO Act does not apply. So, for example, a person voting in an election can choose who to vote for based on the candidate’s political views, sex, marital status or even physical features. The voter might or might not be exercising good judgement, but they would not be breaching the EO Act. Similarly, a person deciding whether to purchase a book can do so based on the author’s political or religious beliefs without breaking any law. 

Mr Casley claims that the Respondents discriminated against him in the provision of a service. Section 44 of the EO Act provides:

(1) A person must not discriminate against another person— (a) by refusing to provide goods or services to the other person; or (b) in the terms on which goods or services are provided to the other person; or (c) by subjecting the other person to any other detriment in connection with the provision of goods or services to him or her. 

(2) Subsection (1) applies whether or not the goods or services are provided for payment.

Mr Casley referred in his Particulars of Claim to talkback as a service to callers.[4] He did not rely on any of the other areas of life in the EO Act and I could not see any other area upon which he might have relied. Accordingly, if the Respondents were not providing services to Mr Casley, then any discrimination, if it did occur, was not a breach of the EO Act. 

Mr Casley claims that the Respondents treated him unfavourably because of his political belief or activity when they refused to provide him with the service of speaking on the talkback segment of Mr Faine’s radio program. This occurred when the ABC informed Mr Casley that he was banned from talkback calls to Mr Faine’s program. Mr Casley also claims that Mr Faine discriminated against him in the way he treated him during talkback calls beginning in 1997. 

In a document filed after the hearing, Mr Casley said that the Respondents in delivering a service treated him unfavourably by “informing the public that I am racist against Jews and other ...slurs”. 

The Respondents submitted that the Applicant should not be allowed to re-characterise his claim at this point. However, this characterisation still concerns the same events and I can see from the Particulars of Claim that this allegation has always been at the base of the Applicant’s claim. He continues to seek an opportunity to deny that he is racist. He says he is anti-Zionist but not anti-Semitic. 

The Respondents say they do not provide services to talkback callers. 

“Services” is defined in section 4 of the EO Act as follows:

“services” includes, without limiting the generality of the word— 

(a) access to and use of any place that members of the public are permitted to enter; 

(b) banking services, the provision of loans or finance, financial accommodation, credit guarantees and insurance; 

(c) provision of entertainment, recreation or refreshment; 

(d) services connected with transportation or travel; 

(e) services of any profession, trade or business, including those of an employment agent; 

(f) services provided by a government department, public authority, State owned enterprise or municipal council— but does not include education or training in an educational institution. ... 

The Respondents also referred to section 79A of the Australian Broadcasting Corporation Act 1983. Sub-section 79A (1) relevantly provides: "Subject to this Act, the Corporation may determine to what extent and in what manner political matter or controversial matter will be broadcast by the corporation".

The rest of that section goes on to make special provision for broadcasting political matter “at the request of another person”. 

The Respondents submitted, and I agree, that section 79A amounts to a statutory entitlement to the ABC to determine political content of a broadcast. The Respondents argued such an entitlement is directly at odds with the idea that the ABC offers a service to those who wish to make political or other comments on talkback programs and must give all of them an opportunity to be heard. I agree. 

An obligation to give everyone an opportunity to be heard would produce a very different kind of broadcast, removing the presenter’s function of conducting a conversation about current issues which the listeners want to hear. Programs would become a recitation of the various opinions, some interesting, some not, some nonsensical or banal, of everyone who wants to call the radio station. Unedited, they would not be entertaining or informative. This practical need to edit calls to suit the program indicates that the taking of calls is not a service. 

The Respondents do not provide a service to talkback callers. Accordingly, the EO Act does not apply to the Respondents’ actions in choosing talkback callers or in how it treats them, and the claim is not covered by the prohibition of discrimination in the EO Act. Section 75 of the VCAT Act empowers VCAT to dismiss or strike out proceedings which are misconceived. Because the EO Act does not apply to the circumstances in this proceeding, it is misconceived and must be dismissed.

VCAT goes on to state

Mr Casley’ claim concerns events between 1997 and 2 July 2010, the date when Mr Casley was told he was “banned” from talkback calls to Mr Faine’s program. Between 1997 and 2010, Mr Casley did not raise the allegation that the Respondents in their treatment of him had discriminated in breach of the EO Act (or its predecessor the Equal Opportunity Act 1995). Similarly, from 2010 to November 2017, Mr Casley did not raise the question of discrimination in relation to being banned. 

Turning to Mr Casley’s reasons for the long delay in making this application, he mentioned that for much of the time he had been pursuing other avenues: making a direct complaint to the ABC itself, then to the Australian Communications and Media Authority, then bringing a claim of defamation in Victoria’s Supreme Court. That claim was unsuccessful because it was out of time. Mr Casley appealed to the High Court and that determination was upheld finally on 19 November 2014, as far as I can tell from the Applicant’s material. 

Then, Mr Casley said, until November 2017 he was unaware that he could make a claim under the EO Act. He attributed responsibility for this to his lawyers at the time. Further, he said, he was exhausted by the process of conducting litigation. 

While all this explains from Mr Casley’s viewpoint why he did not bring the present action until late 2017, it does not excuse the long delay, given the other issues raised by that delay. 

It was the Applicant’s choice to pursue other avenues. If that was due to advice he received, the choices were still made on his side of the dispute. Even if he should have had different advice, responsibility for the delay still lies with him as opposed to the Respondents. He should not be punished for ignorance, but ignorance cannot be a complete answer when the other proceedings were so thoroughly pursued, putting the Respondents to considerable trouble as they must have done, and when he had legal advice. 

Mr Casley submitted that the Respondents were responsible for the delay. I was unable to follow his reasoning at this point, but doing the best I can, it seems he argued that the Respondents were responsible because they never gave a proper explanation for accusing him of making racist statements. This does not advance his position – it is another way of saying that the Respondents were responsible because they were a party to the dispute. I do not accept that the Respondents did anything to cause the delay. 

Mr Casley submitted that since he has recordings of his radio talkback calls, which are not compromised by the passage of time, the quality of evidence is unaffected by the delay. 

It is 21 years since the beginning of the period when he says the Respondents began discriminating against him and now it is eight years since the last talkback call he made to the Respondents. Had this claim been brought soon after the events which lead to it, the position would have been different. 

The Respondents submitted they are unable now to gather evidence to defend the claim. Now, they said, they are unable to test Mr Casley’s recordings against any of their own, because they have not kept any (except two recordings which they happen to have). 

The Respondents submitted, and I accept, that they are not now able to call evidence about surrounding events or other broadcasts not recorded by Mr Casley. Recordings are no longer available to them and time must they say have affected the memories of any witnesses who are still available. The memory of the producers and presenter involved must, they submitted, be affected by the passage of time. I agree. 

Mr Casley claims that a key issue is the allegation that he engaged in racist speech. He says he has never done so and refers to his long history of talkback calls. Although Mr Casley has some recordings, the full history is not available in the way it would have been at the time. Neither party is now able to give conclusive evidence about that disputed matter.  

I accept that the Applicant’s conduct in waiting until 2017 to make this claim was not wanton or cavalier (as he put it). However, his explanations for the delay are not adequate. The delay is inordinate. It is too great in proportion to all the other issues, including the prejudice to the Respondents and the seriousness of the claim, to now allow the claim to proceed. It would not be in the interests of justice to do so. 

While the Applicant sees “justice” as the obtaining of a hearing about the substantive issues, it is my task to consider whether a hearing can be fair at this distance of time from the events. I consider it almost impossible that a fair hearing could be held in these circumstances. The quality of justice must be affected when people’s evidence (including evidence about what was said) is required and the last events relevant to the claim occurred more than seven years before the application was made, particularly as some of them occurred up to 21 years ago. 

All of this indicates that the making of a claim after such a long delay amounts to an abuse of process and it should be dismissed for that reason. It is also relevant that the Applicant has already pursued the Respondents at the Australian Communications and Media Authority and via his unsuccessful defamation action. 

As Deputy President McKenzie said in Burrows:

While one of the objectives of the [former] Equal Opportunity Act is to provide redress for the victims of discrimination and those making complaints should not be unfairly shut out from pursuing a claim, this must be balanced against matters such as the need for finality and the unfairness to a respondent which is caused by lengthy uncertainty as to whether or not a claim will be brought.

In the defamation proceeding, the Applicant said that the Second Respondent’s statement on air that he was banned because he made racist remarks was defamatory. In the present case, he says he was excluded from talkback because of his political or religious views expressed when (in the Applicant’s own words) he “used the occasion to criticize Zionist racism and praise anti-Zionist Jews” and this “triggered” the ban. 

Victoria’s Court of Appeal determined there was no reason to extend the time for the defamation claim beyond the one-year limit set in the Limitation of Actions Act 1958. That was upheld by the High Court. It is in my view logically almost impossible for this Tribunal to overlook a much longer delay in bringing another claim about the same events characterised in a different way. While, as the Applicant put it, VCAT is not subject to all the strict rules which apply in the courts, the logic of those rules must affect the Tribunal’s decisions. 

For these reasons, the claim is also an abuse of process because it has been dealt with in earlier proceedings. 

Mr Casley said in his Particulars of Claim that the litigation to date has been expensive and time consuming. That is also true for the Respondents. Once the High Court finally determined that the matter was out of time, the Respondents were entitled to expect that the Applicant would not bring a further claim about the same events three years later.

In Casley v The Age Company Pty Ltd (Human Rights) [2018] VCAT 1496 earlier in the month a claim by Casley of discrimination in context of advertising services was also dismissed.

VCAT states

 This proceeding concerns Mr John Casley’s attempts to place two advertisements for publication with The Age Company Pty Ltd (the Age). 

Mr Casley is the Secretary of the Protector Party. The Protector Party has a website which includes a page said to contain its constitution. Membership of the Protector Party is free, and applications must be made in writing. The website has a number of pages which set out policies including about housing, animal cruelty and about worldwide conspiracies led by various governments and groups. ... 

The Age’s evidence was that it refused to publish the first advertisement because it regarded it as being confusing, provocative, and potentially insensitive or offensive to some readers of the Age. It was also concerned the language may invoke anti-Semitic feelings.

Reform of the Victorian Residential Tenancy Regime

My recent 'Unquiet Enjoyment? Privacy and Imaging of Residential Property' in (2018) 15(8) Privacy Law Bulletin 130 explored still/video imaging making and dissemination regarding rented residential property and other residential property, for example people taking snaps during an 'open house' for display on their blog or publication via social media.

That article drew on a submission to the Victorian Law Law Reform Commission several years ago, reflected in the Commission's 2015 Photographing and Filming Tenants’ Possessions for Advertising Purposes report noted here.

It is thus interesting to see that the state parliament has passed amendments to the Residential Tenancies Act 1997 (Vic), strengthening occupier rights.

The amendments include provision for establishment of a Commissioner for Residential Tenancies, to be appointed to "champion the rights of Victorian tenants in the private sector". The Commissioner will "consult widely with tenant and consumer advocacy groups across the rental sector to identify systemic issues and will give tenants a voice in seeking changes to renting laws".

Tenancy blacklists remain contentious. The amended legislation encompasses a landlord blacklist. The Government indicates that

 Currently, tenants who breach their obligations under the RTA may find their names on a tenancy database, sometimes referred to as a ‘blacklist’. Landlords and real estate agents will now be subject to similar measures. We will create a landlord and agent ‘blacklist’ that will be available to all tenants so they can identify landlords and agents who have previously breached their obligations under the RTA.

The Government states

The Residential Tenancies Act is the main source of consumer protection for Victorians living in rental housing, while also outlining the obligations of landlords and property managers. 

Since it was introduced, there have been many changes, both in the rental market itself, and in the characteristics, needs and expectations of tenants and landlords. In the past, private rental was commonly a relatively short-term transitional arrangement, which ended in tenants moving to home ownership or in a move to social housing. 

This is no longer the case, with growing numbers of Australians in rental housing, and around one-third of private tenants nationally considered to be 'long-term', having rented continuously for over 10 years. An increasing number of long-term tenants are either older people on fixed incomes, or families with children, for whom stability is important. 

The reasons why people become and remain landlords have also changed significantly, with rental property becoming an important investment and a key feature of many people’s retirement plans. ... 

The review represented a once-in-a-generation opportunity to revisit the regulatory settings that have been in place since 1997, and to ensure they meet the needs of participants in today’s rental housing market.

Public consultation was a significant feature of the review, commencing with the release in June 2015 of the consultation paper Laying the Groundwork, followed by a series of six public consultation papers covering a broad spectrum of rental issues – from security of tenure to protections for people living in caravan parks and residential parks. xxx In January 2017, Heading for Home, an options paper outlining the outcomes of public consultation, was released for final discussion. 

During the review, more than 4,800 public comments were submitted by a range of people and organisations. 

... Drawing on stakeholder submissions, broader consultation across government, as well as the results of independent market research, a package of more than 130 reforms to the Residential Tenancies Act was developed. 

The reforms are framed around the reality that a growing proportion of Victorians are priced out of home ownership and likely to rent for longer periods of time. There is, consequently, a need to rebalance the market through additional protections for a highly diverse population of renters.

It goes on

A number of the reforms were announced as part of the Government’s ‘Rent Fair’ campaign in October 2017. These included:

• allowing animals to be kept in rented premises 

• allowing renters to make prescribed minor modifications to a rental property 

• bolstering security of tenure and ending ‘no fault’ evictions by removing the ‘no specified reason’ notice to vacate and restricting the use of ‘end of the fixed-term’ notices to vacate to the end of an initial fixed term agreement 

• establishing a non-compliance register ‘blacklisting’ residential rental providers and agents who fail to meet their obligations 

• providing for the early release of bonds with the consent of both parties to the tenancy agreement 

• restricting solicitation of rental bids by residential rental providers and agents providing for yearly, instead of six-monthly, rent increases 

• providing for faster reimbursement where renters have paid for urgent repairs 

• increasing the number of properties to which the statutory maximum cap of four weeks for bond and rent in advance applies 

• enabling automatic bond repayments, which will be available to a renter within 14 days where the parties are not in dispute over the apportionment of the bond 

• requiring mandatory pre-contractual disclosure of material facts, such as an intention to sell the rental property, or the known presences of asbestos 

• prohibiting misleading or deceptive conduct inducing a person into renting a property.

The reform package incorporates more than 130 proposed reforms, spanning all types of rental housing currently regulated by the Residential Tenancies Act: public and private residential housing, rooming houses, caravan parks and residential parks.

In keeping with a forward-looking approach, the reforms include explicit legislative purposes for the Residential Tenancies Act and up-to-date terminology befitting of a modern regulatory framework. Gone is the feudal language of landlords and tenants, to be replaced by ‘residential rental providers’ and ‘renters’.

While the principal aim of the reforms is to ensure access to fairer, safer housing for Victorian renters, the reform package also incorporates a number of changes aimed at ensuring that residential rental providers (landlords) have appropriate tools to deal with common issues they identified as arising in the course of a rental relationship.

To name a few supply-side reforms, rental providers will now have strengthened termination grounds for malicious property damage, as well as new grounds responding to serious threats and intimidation, and serious violence by visitors to managed premises. Serial late payment of rent of less than 14 days will also now entitle a rental provider to apply for compensation to recoup any arrears, whereas this was previously limited to situations where a renter had received a notice to vacate.

While some of the changes may be seen as unfair by some supply-side stakeholders, for a large number of rental providers they reflect current practice. In this respect, the changes to the legislation are not without precedent and are, in fact, supported by a number of suppliers of rental housing. The reform package aims to bring the rest of the market up to a consistent standard.

For example, the review found that the vast majority of rental providers already only increase the rent once every 12 or 24 months. For this reason, the move to annualised rents does not actually represent a major change.

Similarly, ‘no reason’ notices to vacate are also only used by one in 11 (9%) of landlords. The repeal of this notice is therefore highly unlikely to be disruptive, as landlords already rely on legitimate, recognised reasons in the legislation when terminating a rental agreement.

Pet-related changes also appear to be in line with majority views. Independent market research conducted during the review found that one in four (24%) landlords report that they ‘always’ allow pets at their rental property. A further 38% ‘sometimes’ allow pets depending on the type of pet (for a total of 62% of landlords who might allow a pet at their rental property).

Rental providers who currently try to do the right thing by renters will not be affected by the changes. However, those who cut corners or who do not prioritise compliance with their obligations will find themselves facing increased monetary penalties and other punitive action.

The reforms are the first, important step towards a more future-proofed Residential Tenancies Act. Work will continue next year to ensure that the suite of reforms in the Bill is supported by complementary, easily accessible and effective dispute resolution through the Victorian Civil and Administrative Tribunal (VCAT), encouraging the parties to assert their rights in a non-adversarial manner.

The Second Reading Speech states

A number of the reforms were foreshadowed as part of the Andrews Labor Government's 'Rent Fair' campaign in October 2017. These include:

• allowing animals to be kept in rented premises; 

• allowing renters to make prescribed minor modifications to a rental property; 

• bolstering security of tenure by ending 'no fault' evictions by removing the 'no specified reason' notice to vacate and restricting the use of 'end of the fixed term' notices to vacate to the end of an initial fixed term agreement; 

• establishing a non-compliance register 'blacklisting' residential rental providers and agents who fail to meet their obligations; 

• providing for the early release of bonds with the consent of both parties to the tenancy agreement; 

• restricting solicitation of rental bids by residential rental providers and agents; providing for yearly, instead of six-monthly, rent increases; 

• providing for faster reimbursement where tenants have paid for urgent repairs; 

• increasing the number of properties to which the statutory maximum cap of four weeks for bond and rent in advance applies; 

• enabling automatic bond repayments, which will be available to a renter within 14 days where the parties are not in dispute over the apportionment of the bond; 

• requiring mandatory pre-contractual disclosure of material facts, such as an intention to sell the rental property, or the known presences of asbestos; and 

• prohibiting misleading or deceptive conduct inducing a person into renting a property.

These protections are rounded out with other important changes aimed at improving the state of rented premises and ensuring that renters have a safe and sustainable living environment:

• mandatory condition reporting to ensure the state of rented premises is accurately recorded at the beginning and end of a rental relationship; 

• mandatory safety-related obligations, notably electrical and gas appliance servicing every two years, and compliance with smoke alarm and pool fence regulations; and 

• the power to prescribe in regulations minimum standards for residential rental properties.

Minimum standards that would be prescribed include basic, yet critical requirements which no reasonable person could object to, such as:

• a vermin proof rubbish bin; a functioning toilet; adequate hot and cold water connections in the kitchen, bathroom and laundry; 

• external windows that have functioning latches to secure against external entry; 

• a functioning cooktop, oven, sink and food preparation area; 

• a functioning single action deadlock on external entry doors; 

• functioning heating in the property's main living area; and window coverings to ensure privacy in any room the owner knows is likely to be a bedroom or main living area.

This power to prescribe minimum standards has been flexibly designed, so that it can incorporate standards imposed under other Victorian legislation, such as energy and water efficiency requirements. A failure to comply with the standards will trigger a variety of responses, including a fine, urgent repairs to the premises, or termination of the parties' agreement before a renter has even moved in.

Importantly, the Bill implements each component of recommendation 116 of the Royal Commission into Family Violence to better protect and support family violence victims living in residential rental housing. Consideration of family violence has also been interwoven with relevant provisions of the Act to avoid further victimisation of vulnerable renters while ensuring continuity of housing. 

Specialised reforms have also been included for alternate tenure types such as rooming houses, caravan parks and residential parks. The Bill allows for a new, tailored rooming house agreement to be developed for operators and residents wishing to enter into an agreement with a defined occupancy period. Parties who do not wish to enter into the new agreement will be subject to the ongoing residency right currently conferred by the Act. Use of tenancy agreements in rooming houses will only be allowed in respect of residents living in self-contained apartments that form part of the rooming house. 

Importantly, the Bill responds to ongoing concerns about the procedural rigour, and impacts, surrounding park closures. Residents affected by the closure of a park will now have access to compensation in particular circumstances, and park owners will need to comply with stricter notification and permission processes before they can proceed with closing down a park. 

While the main focus of the Bill is improving protections for vulnerable renters, and greater security of tenure, these reforms are offset, in a number of instances, by increasing clarity around renter responsibilities. Residential rental providers will now be able to terminate a tenancy if a renter or any other person occupying or jointly occupying the rented premises has seriously threatened or intimidated the residential rental provider, their agent, or a contractor or employee of either. 

Existing termination grounds have been fine-tuned to ensure they provide residential rental providers with effective tools for managing risks arising during a tenancy. For example, renters who intentionally or recklessly damage premises will no longer be able to avoid eviction on the basis of a prediction by VCAT that the conduct will not recur. 

Termination for repeated non-payment of rent will now be underpinned by a more structured process. Tenants who receive four notices to vacate for being 14 days or more in arrears in any 12-month period risk being evicted the next time they receive another notice to vacate, unless they can pay the arrears, satisfy the terms of a payment plan (where such a plan is imposed by VCAT), or demonstrate that it would not otherwise be reasonable or proportionate to end the rental relationship. This 'reasonableness and proportionality' test would also apply to other applications for a possession order to ensure that renters are not evicted for trivial or easily remediable reasons. 

Tenants will need to comply with new safety-related duties to ensure they play their part in ensuring the safety of the premises. This also includes a prohibition on tampering with any safety devices, such as smoke alarms, unless it is reasonable to do so in the circumstances. 

Rights of entry have been significantly clarified to ensure that inspections can be conducted in an orderly manner, while avoiding undue interference with renters' daily lives. For example, residential rental providers will have a clear right to conduct at least two opens for inspection per week when re-letting or selling a property. Renters would have the right to refuse further inspections, and would be compensated for any inconvenience, as well as loss of property that might occur during an inspection. 

The Bill also modernises the process for dealing with goods left behind by a renter, and empowers the Director of Consumer Affairs to issue guidelines clarifying the operation of the RTA. 

The Bill implements the Victorian Law Reform Commission's recommendations about photography of premises, allowing residential rental providers to do what is necessary to re-let or sell their premises, while balancing the need for renters to impose restrictions on the types of photographs or videos that may be taken.

Employment and Contempt

In Susan Anson v Western District Health Service [2018] FWC 2132 an application for an unfair dismissal remedy has been dismissed.

The Fair Work Commission states

 On 15 December 2017, Ms Susan Anson (the applicant) filed an application for an unfair dismissal remedy. Her application stated that she was notified of her dismissal from Western District Health Service (the employer) on 30 November 2017. The dismissal took effect on 30 November 2017. It was a summary dismissal.

The applicant was one of two nurses allegedly asleep on duty at 5.30am in the Coleraine campus of the employer. She and another nurse were in charge of 10 residents and seven acute care patients. Both were allegedly discovered asleep by their Nurse Unit Manager, who arrived unexpectedly early. The applicant was dismissed for being asleep, and also for repeatedly refusing directions to provide a response to the allegation or meet with her employer. She had previously refused requests to attend. She provided a variety of explanations for her refusals including insisting on a particular union representative. The employer eventually refused to allow this representative to enter the premises because of her allegedly aggressive and unsafe conduct. ...

The Agreement, and in particular clause 15 of the Agreement, are concerned with giving an employee due process while enabling an employer to raise and process issues of ‘performance’, ‘conduct’, ‘misconduct’, and ‘serious misconduct’ (clause 15.2 of the Agreement). There is little suggestion that it extends to prohibiting termination if an employee refuses to attend a meeting or makes the process unworkable. Even if there was some form of breach, it was a breach resulting from the employee’s own actions and not that of the employer, and the employee cannot rely on it. The employer made reasonable endeavours to afford the applicant due process, while the applicant and Ms Brown were obstructive and uncooperative.

In Victoria the State Government has announced a review by the Victorian Law Reform Commission of contempt of court laws.

The Commission will  consider whether the state's  contempt regime needs to be modernised to "enhance public confidence in the justice system and allow for clearer enforcement". The  review is a response to recommendations by former Supreme Court Judge Frank Vincent following his review of the Open Courts Act 2013 (Vic).

The Commission will examine:

• contempt in the face of the court, such as disrupting or obstructing court proceedings 
• sub judice contempt, such as publishing information that could interfere with a court proceeding or a person’s right to a fair trial 
• juror contempt, such as a juror acting improperly by conducting an unauthorised internet search while participating in a trial 
• contempt by breach of court order, such as publishing information that breaches a suppression order 
• contempt by scandalising the court, such as an ongoing interference of justice by publishing information casting doubt on the integrity and impartiality of a judicial officer. 

It will also examine the Judicial Proceedings Reports Act 1958 (Vic), that restricts reports on certain judicial proceedings, and assess whether existing penalties for breaching publication restrictions are adequate (alongside whether the level of fault required to prove these offences is appropriate). Relevant defences and the process for enforcing penalties will be reviewed.

The review will include consideration of whether temporary restrictions on publication should be introduced to better protect victims at the time that alleged perpetrators are charged with sexual or family violence related offences, drawing on a key recommendation of the Open Courts Act Review.

The Commission will make recommendations about existing suppression orders made before the introduction of the Open Courts Act.

The review is expected to be completed by 31 December 2019.

Landowner Privacy

The report by the NSW Legislative Assembly Select Committee on Landowner Protection from Unauthorised Filming or Surveillance addresses the following Terms of Reference

 1. That a select committee be established to inquire into and report on the extent of protection for landowners from unauthorised filming or surveillance and in particular:

(a) the nature of protection for landholders from unauthorised filming or surveillance, including but not limited to installation, use and maintenance of optical surveillance devices without consent under the Surveillance Devices Act 2007, 

(b) the extent and appropriateness of penalties for unauthorised filming or surveillance, including but not limited to on-the-spot fines and/or relevant penalties under the Summary Offences Act 1988, 

(c) the implications with regard to self-incrimination of the request of disclosure by a person of any recordings made by that person, 

(d) the implications of rapidly changing media environment, including social media platforms such as Facebook Live, and 

(e) any other related matter. 

 I provided a submission on behalf of the Australian Privacy Foundation

The Committee chair states

Continual incursions by animal welfare activists on farms are having a detrimental impact, not only on farmers and their businesses, but also their families and employees, and the broader community and industry. To have your privacy breached is one thing, and understandably upsetting, but to have distorted footage of your farming business taken and published online is another. The damage this does to one's business and reputation, aside from the personal impacts, is both difficult to quantify and rectify.

While animal welfare activists believe that such incursions help to shine a light on systemic animal cruelty practices, what they fail to recognise is that these incursions themselves can cause considerable stress and injury to the animals they disturb.

Unfortunately though, this inquiry highlighted that there is no simple and easy answer to deal with these illegal activities. What became clear through this inquiry was that both sides of the debate – farmers and animal welfare activists – are concerned with animal welfare. Given this, improving the transparency of animal industries may assist in building public confidence, which is why we have recommended that the NSW Government investigate schemes to increase transparency about food production and animal husbandry practices.

Ensuring that the RSPCA can act effectively to investigate and address animal cruelty is also important. This too may reduce the perceived need for animal activists to trespass on landholder's properties and install unauthorised surveillance devices.

These measures, however, are unlikely to prevent all farm incursions from occurring. Unfortunately there is a cohort of animal welfare activists who have a strong philosophical objection to the killing of animals for human benefit, which is why the laws need to be strengthened to ensure trespass and unauthorised surveillance offences are duly investigated and prosecuted as a particularly serious offence.

As it currently stands, the law is not adequately dealing with these issues, which is why we urge the NSW Government to review the existing legislative framework, in order to identify barriers to enforcement and successful prosecutions. The government needs to focus on how it can enforce the existing laws to make it easy for famers to continue their business in an economic way without continual interruption from animal welfare activists.

The report features the following Recommendations

 1 23 That the NSW Government review the resources and powers of the RSPCA in regard to the monitoring and enforcement of animal welfare measures, and consider means by which the RSPCA and the NSW Police can work together more effectively to protect animals from mistreatment.

2 23 That the NSW Government encourage animal industries to be proactive in engaging with the community, and collaborate with animal industries to investigate schemes to increase transparency about food production and animal husbandry practices. 

3 24 That the NSW Government review the Surveillance Devices Act 2007 to consider whether to insert a public interest exemption for unauthorised filming or surveillance. 

4 35 That the NSW Government establish a whole of government working group to review the current legislative framework around unauthorised filming and surveillance and identify barriers to enforcement and successful prosecutions. 

5 35 That the NSW Government review the laws and penalties of trespass and unauthorised surveillance to consider the responsibility of those planning illegal activities and whether the offences of trespass and unauthorised surveillance should be extended to office bearers of organisations planning and financing these illegal activities.   

6 36 That the NSW Government, through the Council of Australian Governments, raise the need for a comprehensive approach to the regulation of drones across state and federal jurisdictions, with particular regard to the potential privacy and security impacts of the increasing use of drone technology

Restitution

The Victorian Sentencing Advisory Council report Restitution and Compensation Orders addresses Terms of reference that required the Council to "examine whether restitution and compensation orders made under the Sentencing Act 1991 (Vic) should become sentencing orders, rather than remain as orders in addition to sentence (often called ancillary orders)".

That examination involved advising on whether:

• the purposes of sentencing should include the financial reparation of victims;

• there should be a presumption in favour of courts making such orders; and 

• such orders should be enforced by the court in the manner of a fine. If it concluded that restitution and compensation orders should become sentencing orders, the Council was asked to consider: 

• the most appropriate processes and procedures for restitution and compensation orders in all courts; 

• whether victims should have a right of appeal against the amount of an order awarded or the court’s failure to make an order; and 

• whether an offender’s financial circumstances should be taken into account when making an order. 

The Council comments that

A substantial number of recent reviews and proposed reforms, both in Victoria and nationally, are likely to address some of the issues encountered by victims seeking compensation, as well as improve victims’ experiences with the criminal justice system more broadly. Recent reviews and reforms include:

• the Victorian Royal Commission into Family Violence and consequential improvements to the treatment of victim survivors of family violence; 

• the VLRC’s The Role of Victims of Crime in the Criminal Trial Process: Report, which made a number of recommendations aimed at improving the treatment of victims in the criminal justice system; 

• the VLRC’s review of the Victims of Crime Assistance Act 1996 (Vic); 

• the Commonwealth Royal Commission into Institutional Responses to Child Sexual Abuse; 

• the establishment of the National Redress Scheme for victims of institutional child sexual abuse; and 

• the Commonwealth Government’s review of the rules governing the early release of superannuation, and whether an offender’s superannuation should be available to pay restitution or compensation to victims of crime. 

Its Guiding principles were

1. ensuring that proposed reforms accord with the rights contained in the Charter of Human Rights and Responsibilities Act 2006 (Vic) and the Victims’ Charter Act 2006 (Vic); 

2. ensuring that proposed reforms will not place a victim in a situation of increased risk, in the context of both family violence offending and other kinds of interpersonal offending; and 

3. managing victims’ expectations, in particular avoiding the creation of false expectations for victims as to what the reforms to restitution and compensation orders can realistically achieve. 

The Report states

In preparing its advice, the Council has been conscious of the fact that most offenders have very limited financial resources. The Council does not, however, have data on the financial resources of offenders. Reforms that are intended to improve the enforcement of restitution and compensation orders rely on the assumption that the current system does not recover (or does not efficiently recover) payment of such orders from all offenders who have the capacity to pay. 

Due to data limitations, however, it is difficult to test that assumption, and determine whether the current low level of payment of restitution and compensation orders reflects offenders’ lack of means or failures or inefficiencies in enforcement. Due to data limitations, it is not possible to determine whether the current system is achieving efficient recovery of money from the small proportion of offenders who actually have the capacity to pay. 

The Council’s recommendations aim to increase payment and enforcement rates from those offenders who have some capacity to pay. The Council has also stressed the need for a coherent approach to victims’ compensation in Victoria, and the importance for the government to consider the interaction between the different options for compensation open to a victim. The Council considers that the proper compensation of victims requires a coherent approach to both state and offender-paid compensation.

It goes on to state

Should restitution and compensation orders become sentencing orders? 

The current hybrid system of restitution and compensation orders, that is, a system that incorporates elements of both criminal and civil law, provides a number of practical benefits for victims that cannot be achieved in either a strictly criminal or a strictly civil proceeding. For example:

• victims do not need to establish their loss before a separate judicial officer;   

• victims do not need to establish their loss to the criminal standard of proof (‘beyond reasonable doubt’), but rather can satisfy the civil standard (‘on the balance of probabilities’); 

• victims do not need to pay the costs associated with bringing a claim in a civil court; and 

• the process is faster and more streamlined than bringing a separate claim for civil damages.

The Council has been cautious to preserve these benefits of the current system. The Council’s intent is to improve the practical outcomes for victims, without removing the significant benefits of the current hybrid approach to restitution and compensation orders.

In light of the guiding principles, the Council considers that making restitution and compensation orders sentencing orders would raise several insurmountable problems, including eroding the fundamental principle of equality before the law, and potentially exposing victims to retraumatisation in the process of establishing their losses. The Council’s consultation has established that the overwhelming majority of stakeholders do not consider that such a change would be desirable, and consider that it would be unlikely to improve practical outcomes for victims.

Similarly, in relation to the secondary question of whether the purposes of sentencing should be expanded to include victims’ financial reparation, the Council has concluded that to do so could fundamentally undermine the sentencing process by leading to differential sentencing outcomes depending on the financial circumstances of an offender or the individual circumstances of a victim.

In light of its research and consultation, the Council recommends that restitution and compensation orders should not become sentencing orders. 

Recommendation 1: Restitution and compensation orders to remain ancillary orders 

Restitution and compensation orders should remain ancillary orders that are made in addition to a sentence under the Sentencing Act 1991 (Vic), and should not become sentencing orders. 

While affirming the status of the orders as ancillary, the Council considers that the current system for making and enforcing restitution and compensation orders could be improved by:

• increasing the availability and consistency of information and legal advice to victims about restitution and compensation orders; 

• increasing the use, in appropriate cases, of the current power to restrain assets for the purpose of meeting an order for restitution or compensation under the Confiscation Act 1997 (Vic); 

• retaining the ability of a court to take into account the financial circumstances of the offender in making a compensation order (sections 85H and 86(2) of the Sentencing Act 1991 (Vic)); 

• increasing a victim’s ability to enforce restitution and compensation orders on their own behalf; and 

• considering the introduction of a hybrid model for enforcement of restitution and compensation orders, involving state enforcement of the orders through civil mechanisms, where a victim (who is a natural person) elects to assign their right of enforcement to the state. 

Provision of information to victims 

A number of stakeholders, including victims of crime, noted during consultation that there is a need to improve the consistency and timeliness of the provision of information to victims of crime concerning their right to restitution or compensation. The Council recommends the establishment of a working group, coordinated by the Victims of Crime Commissioner, to review and consolidate information provided to victims of crime concerning their options for compensation, in order to ensure the consistency and accuracy of information provided to victims in relation to orders for restitution or compensation and the enforcement of these orders. As the Victims of Crime Commissioner’s role is to advocate, investigate, report and advise in relation to systemic issues for victims of crime, the Council believes the Commissioner would be best placed to coordinate this reform. 

Recommendation 2: Victims of Crime Commissioner to establish a working group to consider provision of information to victims 

The Victims of Crime Commissioner should establish a working group that includes representation from: the Department of Justice and Regulation; the Office of Public Prosecutions; and Victoria Police. 

The working group should review and consolidate information and resources provided to victims of crime concerning avenues for compensation to ensure that all resources contain consistent and accurate information on:  making an application for a restitution and/or compensation order under the Sentencing Act 1991 (Vic); and how such an order is enforced. 

Agencies to review policies and training 

The Council notes that the timely investigation and restraint of offenders’ assets can increase the possibility of successful enforcement of an order for restitution or compensation. The Council heard from a number of stakeholders that the use of these powers could be improved.

Accordingly, the Council recommends strengthening coordination between Victoria Police and the Office of Public Prosecutions regarding the investigation of offenders’ assets and applications for restraining orders for the purposes of meeting an order for restitution or compensation.

Based on stakeholder feedback, the Council does not consider increased powers of forfeiture of an offender’s assets to be appropriate or necessary.

Recommendation 3: Agencies to review policies and training

Victoria Police and the Office of Public Prosecutions should review policies and training to ensure that consistent internal and inter-agency approaches are taken to:

• investigating offenders’ assets; 

• applying for restraining orders under the Confiscation Act 1997 (Vic); and 

• applying for orders for restitution and/or compensation under the Sentencing Act 1991 (Vic).

Retention of discretion to consider offenders’ financial circumstances

The VLRC previously recommended that the County and Supreme Courts, in making a compensation order in favour of an individual under the Sentencing Act 1991 (Vic), should not have regard to an offender’s financial circumstances. The VLRC considered that an approach consistent with a civil court, which generally has no regard to a defendant’s capacity to pay when determining an award of damages, should instead be adopted.

As it recommends strengthening the enforcement of restitution and compensation orders (through consideration of state enforcement of these orders using civil mechanisms), the Council recommends the retention of a court’s discretion to consider an offender’s financial circumstances when making such an order. The Council prefers an overall approach to restitution and compensation orders under the Sentencing Act 1991 (Vic) that maintains the hybrid status of these orders.

Retention of the discretion to consider an offender’s financial circumstances is also consistent with one of the Council’s guiding principles: to avoid creating false expectations for victims of crime as to what amount of compensation they are likely to receive from an offender. 

Recommendation 4: Retention of discretion to consider offenders’ financial circumstances 

Sections 85H and 86(2) of the Sentencing Act 1991 (Vic) should be retained, allowing a court in making a compensation order for injury or property loss to take into account, at the court’s discretion and as far as practicable, the financial circumstances of the offender and the nature of the burden that payment of the order will impose. 

A Council Director expressed a minority view that section 86(2) of the Sentencing Act 1991 (Vic) should be repealed, so that when a court considers making a compensation order for property loss, an offender’s financial circumstances cannot be taken into account. 

Instalment orders 

The Council considers that the power of a court to make an instalment order at the time it makes a compensation order is underutilised. The Council therefore recommends that judicial officers should give particular consideration to whether it may be appropriate to make an instalment order at the time of making a compensation order. This recommendation aims to encourage payment of orders from offenders who are in a position to commence payment at the time the order is imposed. 

Recommendation 5: Court to consider making instalment order following compensation order 

When making a compensation order, a judicial officer should give particular consideration to whether it may also be appropriate to make an instalment order, having regard to the victim’s wishes.

Waiver of fees associated with civil enforcement mechanisms for certain victims

The Council heard from a broad range of stakeholders that the removal of fees for victims who are natural persons, as well as not-for-profit and charitable organisations, could eliminate a financial barrier for victims seeking to enforce orders for restitution or compensation, and may encourage victims to enforce orders independently. Consequently, the Council recommends that the Victorian Government should consider waiving enforcement fees for victims of crime who are natural persons or charitable organisations. 

Recommendation 6: Waiver of Department of Justice and Regulation and court fees for victims 

The Victorian Government should consider amending all necessary legislation to enable the Department of Justice and Regulation (including the Sheriff’s Office), and all relevant courts, to waive appropriate fees for victims of crime seeking to enforce orders for restitution or compensation where the victim is a:

• natural person; 

• public benevolent institution; 

• charitable, religious or educational organisation; or 

• other not-for-profit entity. 

Consideration of state enforcement of restitution and compensation orders through civil mechanisms 

The Council heard from stakeholders that the process of enforcing an order for restitution or compensation through the civil system can be expensive, complex and traumatic for victims. In order to overcome such barriers to enforcement, and consistent with maintaining the hybrid approach to restitution and compensation orders, the Council recommends consideration of a hybrid approach to enforcement of those orders, through state enforcement using civil mechanisms.

If state enforcement is introduced, the Council recommends that there be certain limits placed on the state’s use of civil enforcement mechanisms. This acknowledges that vigorous state enforcement against offenders who have no capacity to pay could result in further punishment that is not taken into account in the sentencing process. Placing reasonable limits on civil enforcement by the state also seeks to avoid an approach that could lead to the imprisonment of persons for failure to pay civil orders.

Many stakeholders noted the potential risk to victims of family violence if state enforcement were to occur automatically. In accordance with this feedback, the Council recommends that the enforcement agency should only enforce orders at the election of the victim. 

Recommendation 7: Consideration of state enforcement of restitution and compensation orders through civil mechanisms 

The Victorian Government should consider whether the Department of Justice and Regulation’s Infringement Management and Enforcement Services, or another specialist enforcement agency, should be empowered to enforce restitution and compensation orders on behalf of victims of crime who are natural persons.

If such state enforcement of restitution and compensation orders is introduced, the enforcement agency should:

• only enforce an order at the election of the victim, and the victim should have the ability to direct that the enforcement agency cease civil enforcement action; 

• only be empowered to use civil mechanisms of enforcement, consistent with the current powers for a judgment creditor to enforce a judgment debt under the Judgment Debt Recovery Act 1984 (Vic) and other relevant legislation; 

• be bound by the protections for civil judgment debtors in Victoria, including:  limitations on the seizure and sale of goods or property that are protected under section 42 of the Supreme Court Act 1986 (Vic); and  the prohibition under section 12 of the Judgment Debt Recovery Act 1984 (Vic) on instalment orders against offenders whose income is solely derived from government benefits; 

• only pursue enforcement of an order where, in the opinion of the enforcement agency, there is a reasonable prospect of substantially satisfying the order within a reasonable time; and 

• receive all necessary additional resources, including:  sufficient staff, including legally qualified staff with expertise in judgment debt recovery and victims’ compensation, and knowledge of the nature and dynamics of family violence; and  IT systems that allow for agency staff to ascertain whether an offender has fine debt and/or infringement debt, as well as any relevant civil debts for which enforcement action has been taken. 

Consideration of a specialist victims’ legal service 

The Council heard from several stakeholders about the difficulties for victims in obtaining legal advice on their compensation options. Stakeholders considered that the current system for making and enforcing restitution and compensation orders could be improved through the provision of timely and comprehensive legal advice to victims on their compensation options. A number of stakeholders emphasised the need for specialist advice in what is a complex area of law, including advice on all the potential avenues for compensation that may be open to victims, both against offenders and against third parties. 

The Council considers the provision of comprehensive legal advice, although beyond the terms of reference, to be of particular importance in managing victims’ expectations as to whether they are likely to receive compensation. It may also ensure that the most appropriate avenue for compensation is pursued depending on the circumstances of a particular case. The availability of such a legal service could complement a state enforcement agency, as victims could be directed to more suitable compensation options in circumstances in which an offender may not have any capacity to pay an order for restitution or compensation.

The Council also stresses the need for those providing legal advice to victims of crime to have an understanding of a broad range of compensation options for victims, including civil compensation. Those providing legal advice to victims of crime should also have an understanding of the potential dynamics between victims and offenders, particularly in the family violence context. 

Recommendation 8: Consideration of a specialist legal service to assist victims of crime with compensation matters 

The Victorian Government should consider establishing a specialist victims’ legal service that would provide:

• comprehensive free legal advice to victims of crime on their options for compensation, including orders for restitution or compensation under the Sentencing Act 1991 (Vic), the Victims of Crime Assistance Tribunal, civil compensation and/or any applicable compensation schemes; and 

• legal information or advice throughout the criminal trial process where this is not provided by other agencies.

The victims’ legal service should be supported by all necessary resourcing, including staff with expertise in victims’ compensation (including civil compensation), and knowledge of the nature and dynamics of family violence.