Homophobia in the thin blue line

The Victorian Equal Opportunity and Human Rights Commission have released Proud, visible, safe report examines the experiences of LGBTIQ employees at Victoria Police.

The report states

Victoria Police have been increasingly visible in their support for lesbian, gay, bisexual, transgender and intersex (LGBTI) Victorians and meeting the policing needs of Victorians with diverse sexual orientations and gender identities. It is clear that Victoria Police is committed to building an organisational culture of acceptance and inclusion for its LGBTI employees. The purpose of this report is to propel the work of Victoria Police toward a workplace culture that is inclusive of LGBTI employees. This report recognises and acknowledges the current and historical experiences of LGBTI employees in Victoria Police and aims to contribute insights that can further inform the positive work Victoria Police is already undertaking in line with its LGBTI Inclusion Strategy. 

In our research we heard about a range of experiences, both positive and negative. The experiences documented in this report are presented to Victoria Police to illuminate LGBTI employees’ experiences of workplace harm. These experiences shed light on why some employees are not willing or able to report workplace harm to their organisation, they identify the barriers that currently prevent them from reporting harm to managers, and they also provide insight into why bystanders do not feel motivated or empowered to stand up for their colleagues when they see harm. 

The Victorian Equal Opportunity and Human Rights Commission (the Commission) was told by many participants about their desire to see changes to Victoria Police’s workplace culture and the organisation’s response to workplace harm. Participants told the Commission that in coming forward with their experiences, they hoped there would be action in their organisation to make it a safer and more inclusive one where workplace harm was not tolerated. 

The Commission heard that current initiatives such as workplace harm training had improved the culture in their workplaces. The Commission also heard about workplaces that were known to be inclusive of their LGBTI employees. The Commission heard that a key factor in setting this workplace culture was strong leadership. Strong leadership meant managers who were inclusive of their LGBTI colleagues, such as supporting days of LGBTI significance in their stations, who wore rainbow lanyards or had rainbow flags and stickers in their offices. They also lead by example, modelling appropriate behaviour and intervening when they observed inappropriate behaviour occurring. 

The Commission notes  that certain aspects of the homophobia that characterised policing culture in the 1980s and 1990s is still present in some Victoria Police workplaces and that there currently remains a tolerance for homophobic and transphobic comments in some workplaces.

The Commission was told about homophobic and transphobic comments and jokes in Victoria Police workplaces. We were told that this behaviour is currently normalised in certain workplaces, where it is seen as ‘banter’ between colleagues.

There is still a culture of ‘banter’ within the police force. I am often gobsmacked when members, who know I identify as a gay man, still have no issues using phrases like ‘cocksucker’ and ‘knob jockey’ around me. (Participant)

In the last year I was part of a briefing where an Inspector made a throw away transphobic comment, and the whole room of 100 people laughed at it. (Participant) 

The Commission highlights that a culture that normalises homophobic and transphobic comments can enable other forms of workplace harm. 

Participants told the Commission that homophobia was sometimes expressed by other members telling them they didn’t want to work with someone who was gay. 

The Commission was told about one participant’s experience of exclusion: This Acting Sergeant … began telling staff members that he doesn’t like working with fags. The target was openly gay and noticed that this supervisor was quite evasive and eventually got to the point of the supervisor ignoring him and not even acknowledging his presence. (Participant) 

The Commission learned that this could also manifest in hostility toward colleagues during LGBTI days of celebration or significance. This Sergeant call the LGBTI communities ‘faggots’. On the Colour Purple Day he threw a gold coin donation into the tin and said ‘I don’t support this cause at all but I want a sausage with sauce’. (Participant) 

Participants told the Commission that the ‘everyday homophobia’ was part of an entrenched culture in certain workplaces. We were told that workplaces that were more male-dominated and where leaders did not call out inappropriate behaviour or address banter directly were more likely to have this entrenched culture. 

The Commission is concerned to hear that some incidents of workplace harm identified Sergeants, Senior Sergeants and Inspectors as the perpetrators. One participant told the Commission: There are many Senior Sergeants, Inspectors and Superintendents who are causing massive personal damage to people, yet nothing is done. (Participant) 

The Commission heard reports of recent incidents of aggressive homophobic comments directed toward gay Victoria Police employees, such as: I would have taken you out the back and flogged you back in my day. (Participant) 

One participant told the Commission about comments made in the presence of a number of employees, with no consequences for the perpetrator. The Acting Senior Sergeant made reference to tasking the van crew to attend at Flagstaff Gardens. A junior member asked ‘Why? Do you want us to go shooting possums?’ The Acting Senior Sergeant replied ‘No, I want you to go shooting homos and fags’. This was met with laughing from all present with the exception of myself. This Acting Senior Sergeant continues to be upgraded. (Participant) 

Another participant told the Commission about an incident that took place when he visited another station, which occurred in the presence of others: A Leading Senior Constable (LSC) looked me up and down in the muster room ... His exact comments were: ‘In my day, we took people like you out the back of the station and beat you with a hose’. (Participant) 

Another participant described comments made in a group conversation: One member made his view clear that, ‘All gays should be gassed in the chamber like the Nazis’ and another said, ‘they should be taken out the back of the station and shot in the head’. (Participant) 

Intrusive questions 

Participants also told the Commission about the frequency of intrusive questions about their lesbian, gay or bisexuality. Comments like ‘Who’s your boyfriend?’ or ‘Who’s your girlfriend?’ That kind of intrusive and invasive questioning and obsessing around someone’s gender identity or relationship status or if someone’s not believed to be heteronormative or that sort of intrusive questioning. (Participant) 

Such questioning highlights how a heteronormative culture enables or emboldens inappropriate questions by colleagues if a person is perceived to be ‘other’ than heterosexual. As a GLLO I have had my sexuality publicly questioned by a Sergeant in front of other colleagues, asked if my partner was also bisexual in order to love me. (Participant) 

The Commission learned that getting to know your colleagues is a central part of building trust in an operational environment. However, it is clear that for some gay and lesbian employees, questioning about their sexual or private lives is experienced in a different way to their straight colleagues and is intrusive and inappropriate.

The Commission's findings are summarised as

• Victoria Police has made significant steps in recent years toward inclusion of LGBTI employees, for example through the Chief Commissioner’s public support of marriage equality in 2017, the Gay and Lesbian Liaison Officers (GLLO) Program and the celebration of LGBTI days of significance See 2.2.2 Toward inclusion in the workplace 

• The current data collection methods of the organisation do not enable a robust understanding of the number of LGBTI employees See 2.1 LGBTI workforce 

• Homophobia and transphobia are tolerated in some Victoria Police workplaces. This enables workplace harm to occur. See 3.1.3 Homophobic and transphobic comments 

• LGBTI employees have, and continue to experience workplace harm including homophobic and transphobic comments, aggressive language, sexual harassment and discrimination. See Chapter 3 Experiences of discrimination and sexual harassment 

• The drivers of these behaviours are homophobia, transphobia, a hypermasculine and heteronormative culture and a tolerance or acceptance of this culture in certain workplaces See 3.3 Drivers 

• There are barriers to reporting LGBTI-related workplace harm, including: a lack of trust and confidence in internal reporting systems; a culture of not reporting workplace harm; fear of victimisation and reprisal; poor management responses to complaints from LGBTI employees; fear of being ‘outed’ and concern existing reporting pathways exclude LGBTI employees. See 4.2 Barriers to reporting 

• Formal complaints of LGBTI-related workplace harm are low. In the previous 18 months, one complaint of LGBTI-related harm was reported to the centralised triage and case-management system OneLink, and six matters were made to Taskforce Salus, a unit within Victoria Police set up to investigate incidents of sexual harassment and sex discrimination. Professional Standards Command (PSC) did not receive any LGBTI-related complaints. See 4.1 Low rates of reporting 

• Bystanders are generally unwilling to call out behaviours when they see them occurring, because they fear the repercussions for doing so, and there are challenges in calling out the behaviour of more senior employees. See 4.2.2 A culture of not reporting harm

The report provides guidance, responding to the Commission'sresearch findings by making recommendations in areas where Victoria Police can improve and strengthen its response to workplace harm experienced by LGBTI employees.

Taking action in these areas will help Victoria Police comply with its positive obligations under the Equal Opportunity Act 2010 and to meet its strategic vision for a more capable police organisation. The impacts of LGBTI-related workplace harm don’t just affect Victoria Police employees. They also have implications for policing, including the ability of Victoria Police to respond to and prevent prejudice motivated crimes within the community. Creating a safer and more inclusive organisation for LGBTI employees in Victoria Police will make the workplace a fairer and safer place for all Victoria Police employees and strengthen the organisation’s capability to better serve and protect all Victorians.

The guidance is summarised as

1. Workforce data • Enable employees to voluntarily record their sexual orientation or gender identity, which will enable Victoria Police to understand its employee demographics for the purpose of better protecting and promoting the inclusion of LGBTI employees. See 2.1 LGBTI workforce. 

2. Policies • Review workplace harm policies (including policies on sexual harassment; bullying, discrimination and harassment; complaints and discipline; and complaint management and investigation). Policies should use inclusive language; include current definitions of discrimination; and provide clear guidance to employees, managers and supervisors on the complaints process, confidentiality, protections from victimisation, responsibilities to take complaints seriously, available supports and bystander action. See 5.1.2. How to improve workplace harm policies. 

3. Workplace harm complaint processes • Ensure there are clear and consistent complaints pathways to workplace harm units and non-action reporting options. • Ensure workplace harm unit staff are trained to respond to sexual harassment and discrimination, including discrimination against LGBTI employees See 5.2.2 How to improve complaints handling. 

4. Training Workplace harm training • Ensure employees in workplace harm units have LGBTI subject matter expertise. • Provide training on LGBTI-related workplace harm and bystander action for managers and supervisors informed by LGBTI subject experts. See 5.2.2 How to improve complaints handling and 5.4.2 How to improve bystander action. LGBTI awareness training • Review curriculum materials for police and PSO recruits to address outdated content, inaccurate language and remove potentially prejudicial and harmful stereotypes • Provide LGBTI awareness and inclusion training for instructors • Expand the LGBTI Community Encounters session See 5.5.2 How to improve LGBTI awareness training. 

5. Messaging • Promote awareness of workplace harm policies, including the processes for reporting or making a complaint • Ensure organisation-wide messaging on workplace harm is clearly inclusive of LGBTI-related harm and that workplace harm reporting and complaint pathways are available for LGBTI-related workplace harm. • Promote organisation-wide messaging that Victoria Police will not tolerate homophobia, biphobia and transphobia and will not tolerate LGBTI-related harm, such as discrimination and sexual harassment See 5.3.2 How to improve workplace harm messaging. See also 5.1.2 How to improve policies and 5.2.2 How to improve complaints handling. 

6. Leadership • Leadership promote that Victoria Police will not tolerate homophobia, biphobia and transphobia and will not tolerate LGBTI-related harm, such as discrimination and sexual harassment • Improve LGBTI visibility by expanding the number of senior leaders who are Pride Champions, including allies. • Leadership promote LGBTI visibility by permitting employees to wear rainbow lanyards and badges • Regularly share best practice examples of inclusivity and safe workplaces. See 5.6.2 How to improve visibility and 5.7.2 How to improve sharing what works.

Credit Referencing

A short and valuable report from the New Zealand Privacy Commissioner shows what can be done with few resources. It offers a benchmark for the underperformance of the Office of the Australian Information Commissioner.

The Spot Check on Credit Reporters notes that

between October 2018 and February 2019, the Office of the Privacy Commissioner (OPC) conducted a spot check on the three national consumer credit reporters – Centrix, Equifax and illion. 

The spot checks tested credit reporter practice in providing individuals access to their credit information. The spot check was conducted using a ‘mystery shopping’ process. To do this, we arranged through a contractor for 30 people to seek their own credit reports and report on their experience.

The 'Headline results' were

• Credit reporters are often failing to meet the 5 working day timeliness rule for expedited reports.
• Credit reporters are generally meeting timeliness for free reports but should be striving to provide reports as quickly as practicable.
• Equifax and illion websites are difficult to navigate and need to more clearly advise consumers they can request a free credit report.
• Equifax’s credit reports should explain in more detail how its credit score is derived and what can affect the score.     

The OPC comments

The Credit Reporting Privacy Code 2004 (the Code) gives people the right to access the reports that credit reporters hold about them quickly, and to access it for free.

As the information on credit reports is constantly changing, it is important for consumers to have timely and regular access to credit information to check that it is accurate. It can be particularly useful for consumers to check their credit information before seeking credit to ensure it is accurate and to ask for the credit reporter to correct any errors. 

Identity fraud is an increasing problem for consumers. Checking credit reports can help identify identity theft, such as credit accounts never applied for, unknown credit defaults or unauthorised credit enquiries. In those instances, consumers can ask the credit reporter to suppress ('freeze') their credit information.

The Code allows credit reporters to charge up to $10 for an expedited report within 5 working days but it also requires credit reporters to provide credit reports for free as quickly as practicable. The spot check tested whether credit reporters complied with access rules and limits on charging as at 30 March 2019. 

From 1 July 2019, credit reporters must provide free credit reports within 10 working days (currently 20 working days), and expedited reports within 3 working days (currently 5 working days). ... 

From 1 July 2019, Rule 6 of the Code is changing - credit reports requested using the free standard service must be provided within 10 working days (currently 20 working days). Currently only illion is meeting this requirement. 

This reduction in the outer time limit reflects the reality that the information is held electronically and is readily packaged. It delivers on a key objective of the Code to enable the unimpeded and prompt access to credit information as a critical measure to promote trust and accuracy. 

The changes also help to ensure that consumers at risk of identity fraud can exercise their rights to get an initial credit suppression more quickly, making it more difficult for a fraudster to obtain credit in someone else’s name

The OPC concludes

This spot check found issues that credit reporters should investigate and address:

• Credit reporters need to address their failure to meet the 5 working day timeliness requirement for expedited reports. 

• While credit reporters are generally providing free reports within 20 working days, Credit reporters should be striving to provide reports as quickly as practicable since information is easily retrievable. 

• Equifax and illion websites are difficult to navigate and should make it clearer to consumers that they can request a free credit report. 

• Equifax’s credit reports should explain in more detail how its credit score is derived and what can affect the score.

Given that practice is likely to be identical/similar across the Tasman we might encourage the OAIC to undertake such spot testing.

Copyright

The Limits of International Copyright Exceptions for Developing Countries' by v in (2019) 21(3) Vanderbilt Journal of Entertainment and Technology Law comments 

Development indicators in many developing and least-developed countries reflect poorly in precisely the areas that are most closely associated with copyright law’s objectives, such as promoting democratic governance, facilitating a robust marketplace of ideas, fostering domestic markets in cultural goods, and improving access to knowledge. Moreover, evidence suggests that copyright law has not been critical to the business models of the creative sectors in leading emerging markets. These outcomes indicate that the current configuration of limitations and exceptions (L&Es) in international copyright law has not advanced the human welfare goals that animate its leading justifications in developing countries. This Article considers the design of the international copyright system in light of what economists have learned about the conditions necessary for economic development and examines what changes to international copyright L&Es those insights demand. It concludes that a more realistic dialogue about the relationship between copyright and economic development compels new types of L&Es, thus underscoring where developing and least-developed countries should sensibly invest their limited economic and political capital when engaging with the international copyright framework.

Intangibles

The UK Financial Reporting Council earlier this year issued a discussion paper titled Business Reporting of Intangibles: Realistic Proposals, of interest to intellectual property scholars. The FRC states

 The FRC issued a Research consultation in 2018 to gather stakeholder views on potential research projects; stakeholders supported further research on intangibles. The topic has also been identified internationally by other accounting standard-setters as a key area of research. 

Objective 

2. The objective of this paper, “Business Reporting of Intangibles: Realistic proposals” is to add to the international debate, gather views and influence the IASB and its future work agenda. 

3. The FRC is requesting comments by 30 April 2019. Comments are invited on all issues relating to possible improvements to the business reporting of intangibles. Comments are sought on the questions below. ...  

Section 1 Introduction 

6. This section sets out the objectives of this paper, which are to explore reasons why many intangibles are not fully reflected in the financial statements and to develop practical proposals for improving business reporting of intangibles. 

Question 1 Do you agree that it is important to improve the business reporting of intangibles? 

Section 2 Which intangibles should be reported as assets? 

7. This section reviews the implication of the IASB’s Conceptual Framework’s requirements that an intangible can only be recognised as an asset in financial statements if it meets the definition of an asset; and recognition provides relevant information about the asset and a faithful representation of it. 

8. The main proposals made in this section are: (i)An intangible should be recognised at cost only where: –the costs to be incurred on development of an intangible asset can be estimated at the time when a project to develop an intangible is undertaken. The amount capitalised should not exceed these estimated costs in view of the difficulty of establishing the future economic benefits; and –the economic benefits to be derived from the intangible can be specified when the costs are first incurred, and hence a relevant method of amortisation or monitoring for impairment can be established. (ii)For many intangibles the measurement uncertainty of fair value is so great as to call into question whether it could provide a representationally faithful depiction. (iii)The requirements of existing accounting standards should be reviewed in light of these conclusions. 

Question 2 Do you agree that an intangible should be recognised at cost under the two conditions set out above in (i)? 

Question 3 Do you agree with the assumptions the paper makes regarding measurement uncertainty of intangibles? 

Question 4 Do you agree that existing accounting standards should be revisited with the aim of improving the accounting for intangibles? 

Section 3 Disclosure of expenditure on intangibles 

9. The main proposals made in this section are: (i) There is a case for specific disclosure requirements of the amount and nature of investments in unrecognised intangibles that are treated as an expense in the period, particularly those that are incurred with a view to generating benefit in subsequent accounting periods (“future-oriented intangibles”). These should be clearly differentiated from expenses that unambiguously relate to the period. (ii) The cumulative amount of future-oriented expenditure that is expected to benefit future periods, and movements in it, should be disclosed. 

Question 5 Do you agree with the above proposals relating to expenditure on intangibles? 

Section 4 Narrative reporting 

10. This section discusses how narrative reporting might usefully complement the information provided in financial statements, both as regards recognised and unrecognised intangibles. The main proposals are: (i) Management should select the intangibles that are discussed in narrative reporting, by reference to those that are most relevant to the entity’s business model. (ii) Narrative reporting should include metrics relating to intangibles. It is questionable whether an estimate of the value of intangibles will be useful, but other metrics should provide information that is helpful to investors in making their own assessment of intangibles and their impact on financial performance. (iii) Metrics should be reported for several reporting periods, so that the trend is clear. (iv) Management should comment on the factors that have caused a change in metrics and compare the reported metrics with their realistic targets. (v) The definition and calculation of metrics might be standardised within specific industries. 

Question 6 Do you agree with the proposals aimed at improving the quality of information on recognised and unrecognised intangibles in narrative reporting? 

Section 5 Implementation 

11. This section suggests ways in which participants in the business reporting process could improve the reporting of intangibles. Question 7 What are your views about how the various participants involved in business reporting could or should contribute to the implementation of the proposals made in the paper? Further questions Question 8 Do you use additional information other than the financial statements when assessing and valuing intangibles? If so, can you please specify what additional information you use. 

Question 9 Do you have any suggestions, other than those put forward in this paper, as to how improving the business reporting of intangibles might be achieved? 

1 Introduction 

Objectives 

1.1 “Over the last 15 years or so there have been a number of calls for accounting reforms, with claims that the traditional historical cost approach has outlived its usefulness. One of the claims made in this debate is that the economy has changed in fundamental ways, that business is now fundamentally “knowledge based” rather than industrial, and that “intangibles” are the new drivers of economic activity. Based on those claims, commentators contend that one of the key problems faced by financial reporting is that financial statements fail to recognise many of the most important knowledge-based intangibles, such as intellectual capital, and that this has adversely affected investment in intangibles. This has led to calls for accounting-standard setters to re-evaluate how intangibles are accounted for and to make reforms.” 

1.2 The above paragraph introduced a paper[1] first published in 2008. The only revision that is required today is to replace “over the last 15 years or so” with “over the last quarter century or so”. Criticisms that financial reporting fails to provide relevant information about intangibles continues. For many years Baruch Lev has been one of the leaders of this criticism: he has recently published a book (co-authored with Feng Gu) memorably titled “The End of Accounting”. Those who take the view that the shift to the new economy has caused financial statements to lose much of their relevance for investment decisions often cite the divergence between the accounting value of equity (net assets) and companies’ market capitalisation. They suggest that this is due to the failure to recognise the value of intangibles in financial statements. There are, however, reasons to be sceptical about this argument. Although financial statements may be expected to provide information that is useful to an assessment of the value of a company’s equity, they have never pretended to provide that value directly. This has most recently been confirmed in the IASB’S Conceptual Framework (IASB 2018, paragraph 1.7). 

Many items in financial statements are reported at historical cost rather than fair value, which would be indefensible if the objective were to report the value of the company. Essentially, financial statements are a record of past transactions. They reflect the extent to which past transactions have resulted in assets to the extent they might provide future cash inflows (and, of course, liabilities to the extent they might require future cash outflows). In contrast, the market value of equity reflects an assessment of future cash flows. But even if all assets and liabilities were recognised and reported at fair value, differences between reported equity and market capitalisation might be expected. 

A long-standing puzzle in the finance literature is why shares in funds, such as investment trusts, often trade at a discount (and occasionally at a premium) to their net asset values, despite the regular reporting of the fair value of their net assets. For a discussion of this puzzle, see Shleifer (2000, Chapter 3). Some researchers dispute the claim that financial statements have lost relevance despite the advent of the new economy—for example, Penman (2007), and Skinner (2008). A particularly thorough recent study is Barth, Li and McLure (2018) which suggests that “our findings reveal a more nuanced, but not declining, relation between share price and accounting information that reflects the new economy”. 

1.3 The objectives of this paper are: •to explore the reasons why intangibles cannot be more fully reflected in financial statements without radical change; and •to develop practical proposals for improvement in business reporting that can be expected to be implemented in the near future. 

1.4 Examples of intangibles include: patents, copyrights, trademarks, knowledge, skills, permits, licenses, computer software, customer lists, relationships, business processes, and dynamic capabilities (such as the ability to adapt to new working methods). Clearly this is not an exhaustive list. It is also obvious that the examples are diverse: a license to operate has little in common with a supplier relationship, except that neither is tangible, and that a business that has a license to operate and good supplier relationships is more valuable than one that lacks either. 

1.5 The IASB’s Conceptual Framework (IASB 2018), which has recently been revised, sets out definitions of assets and recognition criteria. Only items that both meet the definition and the recognition criteria can be included in financial statements without radical change. While the possibility of radical change cannot be discounted, it undoubtedly will not be achieved in the near future. The immediate priority is to identify how, within the current financial reporting framework, practical proposals can enhance the relevance and quality of information that is conveyed by financial reporting. 

1.6 Within the current Conceptual Framework, financial statements can only deal with those intangibles that meet the definition of assets and satisfy the recognition criteria, as set out in the IASB’s Conceptual Framework. However, it seems unlikely that this will be sufficient: it is also necessary to consider how financial reporting of those intangibles that do not meet either the definition of assets or the recognition criteria might be improved. This might be by narrative reporting rather than within the financial statements. That is why our title for the project is “intangibles” rather than “intangible assets”. 

1.7 Our working definition of “intangibles” is: “Intangible factors that are important to an entity in its creation of value, whether or not they are secured by legal means and whether or not they meet the current definition of “assets”.” 

Scope of project 

1.8 However, to restrict its proposals to maintain focus, some limitations on the scope of this paper are necessary. So, this paper focuses on “business reporting” which excludes: •reporting by entities in the public and not-for-profit sectors; and •reporting to meet the needs of stakeholders other than those defined as the primary users of financial reporting in the Conceptual Framework (that is, existing and potential investors, lenders and other creditors). 

1.9 These topics are not excluded because they are unimportant, or because this paper’s proposals are necessarily irrelevant to future initiatives to address them. But it acknowledges that, in considering extending the proposals to these areas, it may be necessary to modify or adapt them. 

However, as mentioned above all forms of business reporting, including the management commentary, are addressed in this paper. It is not confined to the financial statements but discusses other forms of business reporting such as in the management commentary. 

1.11 Financial reporting of goodwill and its impairment are also not addressed in this Discussion Paper. The IASB plans to issue a Discussion Paper or Exposure Draft on Goodwill and Impairment in the second half of 2019, and EFRAG has recently completed research on the same subject. Revisiting goodwill and its impairment within this project would therefore duplicate the work of others. 

Structure of this paper 

1.12 The remainder of this paper is structured as follows:

• Section 2 discusses the implications of the Conceptual Framework for the reporting of intangibles. It relates its conclusions to the economic features of intangibles that are identified in the literature. 

• Section 3 considers possible improvements to the reporting of expenses incurred to develop intangibles that cannot be capitalised in financial statements but are expected to benefit future periods (“future-oriented intangibles”). 

• Section 4 discusses how narrative reporting, including the use of metrics, might be used to provide better information for investors on intangibles. 

• Section 5 notes that further consideration is required of the implementation of the suggestions made in the paper and the role of preparers, investors, and standard-setters in that process.

Algorithms

'A Right to a Human Decision' by Aziz Z. Huq in (2019) 105 Virginia Law Review comments 

 Recent advances in computational technologies have spurred anxiety about a shift of power from human to machine decision-makers. From prison sentences to loan approvals to college applications, corporate and state actors increasingly lean on machine learning tools (a subset of artificial intelligence) to allocate goods and to assign coercion. Machine-learning tools are perceived to be eclipsing, even extinguishing, human agency in ways that sacrifice important individual interests. An emerging legal response to such worries is a right to a human decision. European law has already embraced the idea in the General Data Protection Regulation. American law, especially in the criminal justice domain, is already moving in the same direction. But no jurisdiction has defined with precision what that right entails, or furnished a clear justification for its creation. 

This Article investigates the legal possibilities of a right to a human decision. I first define the conditions of technological plausibility for that right as applied against state action. To understand its technological predicates, I specify the margins along which machine decisions are distinct from human ones. Such technological contextualization enables a nuanced exploration of why, or indeed whether, the gaps that do separate human and machine decisions might have normative import. Based on this technological accounting, I then analyze the normative stakes of a right to a human decision. I consider three potential normative justifications: (a) an appeal to individual interests to participation and reason-giving; (b) worries about the insufficiently reasoned or individuated quality of state action; and (c) arguments based on negative externalities. A careful analysis of these three grounds suggests that there is no general justification for adopting a right to a human decision by the state. Normative concerns about insufficiently reasoned or accurate decisions, which have a particularly powerful hold on the legal imagination, are best addressed in other ways. Similarly, concerns about the ways that algorithmic tools create asymmetries of social power are not parried by a right to a human decision. Indeed, rather than firmly supporting a right to a human decision, available evidence tentatively points toward a countervailing ‘right to a well-calibrated machine decision’ as ultimately more normatively well-grounded.

Class

'The Tenuous Attachments of Working-Class Men' by Kathryn Edin, Timothy Nelson, Andrew Cherlin, and Robert Francis in (2019) 33(2) Journal of Economic Perspectives 211–228 comments

Work, family, and religion have traditionally played an important role in furnishing working-class Americans with economic resources, moral guidance, and opportunities for civic engagement (Cherlin 2009; McLanahan 2004; Verba, Schlozman, and Brady 1995; Wuthnow 2002). Ongoing attachments to work, family, and religion connected working-class men to social bonds and defined identities that kept them in the formal labor market and forestalled health problems. Conversely, precarious attachments to these key social institutions, we argue, may now dilute their power to shepherd and shift men’s trajectories and may place them at risk of a host of negative outcomes. This is in line with sociologist Emile Durkheim’s seminal study Suicide (1897 [1997]), which argued that “anomie,” or normlessness, could explain variations in suicide rates across countries and over time. 

In this essay, we explore how working-class men describe their attachments to work, family, and religion. We draw upon in-depth, life history interviews conducted in four metropolitan areas with racially and ethnically diverse groups of working-class men with a high school diploma but no four-year college degree. Between 2000 and 2013, we deployed heterogeneous sampling techniques in the black and white working-class neighborhoods of four metropolitan areas: Boston, Massachusetts; Charleston, South Carolina; Chicago, Illinois; and the Philadelphia/ Camden area of Pennsylvania and New Jersey. We placed fliers in public places, sought referrals from a variety of grassroots organizations, and engaged in street sampling (approaching men on commercial streets and transit stops during daylight hours). We invited each of these men to refer up to two men to our study. 

Because we were interested in these men’s family ties, we screened to ensure that each respondent had at least one minor child. In Charleston and Philadelphia/ Camden, we limited our sample to men with at least one child who could potentially have made the respondent subject to a child support order, because he was neither married to the child’s mother nor living with her. We interviewed roughly even numbers of black and white men in each site for a total of 107 respondents. 

We spoke at length with each respondent at least once, but usually twice. Interviews ranged from 90 minutes to three hours. All conversations were transcribed verbatim and coded using MaxQDA, a software program that is useful for identifying and systematically examining themes in qualitative data. We sorted men’s narratives into codes capturing information relevant to prior constructs, as well as themes that emerged inductively from the transcripts. In the first three sections of this paper, we describe the pattern of tenuous connections we found to key social institutions of work, family, and religion among the working-class men with whom we spoke. Although others have made similar arguments (Putnam 2015; Wilcox, Wolfinger, and Stokes 2015), we provide new evidence. Unlike past research, however, we show that working-class men are not simply reacting to changes in the economy, family norms, or religious organizations. Rather, they are attempting to renegotiate their relationships to these institutions by attempting to construct autonomous, generative selves. For example, these men’s desire for autonomy in jobs seems rooted in their rejection of the monotony and limited autonomy that their fathers and grandfathers experienced in the workplace, along with a new ethos of self-expression (Cherlin 2014). Similarly, these working- class men focus on their ties to their children even when they have little relationship with the children’s mothers, and they seek spiritual fulfillment even though they disdain organized religion. The drive toward generativity, by which we mean a desire to guide and nurture the next generation (Erikson 1963), is often rooted in past trauma often deriving from their family of origin. Many say that “giving back” in ways that they believe can make the world a better place is a way to redeem their own past as well as protect and nurture the next generation. 

In sum, these working-class men show both a detachment from institutions and an engagement with more autonomous forms of work, childrearing, and spirituality, often with an emphasis on generativity. Autonomy refers to independent action in pursuit of personal growth and development. Personal growth has come to be highly valued among middle class Americans (Bellah, Madsen, Sullivan, Swidler, and Tipton 1985), but until recently has not been associated with the working class. The emphasis on activities directed toward personal growth among the working class that we and others (Silva 2013) found surprised us, as past scholarship typically assumed that such forms of action would usually only be found among those so materially comfortable that they needn’t spend time worrying about their economic circumstances (Inglehart 1977). Subsequent to Eric Erikson’s definition, which emphasized guidance and care of the next generation, researchers have expanded the concept of generativity to include “being a responsible citizen and a contributing member of a community” (McAdams, Hart, and Maruna 1998, p. 7). In other words, generativity is a special type of autonomous action, one directed at encouraging the growth and development not of oneself but of persons one cares about and knows well, such as one’s children, as well as those in the community that need care and protection, such as the youth in one’s neighborhood. 

Our primary goal is to show that in order to comprehend these men’s lives, we must consider both the unmaking and remaking aspects of their stories. We then turn to a discussion of the extent to which this autonomous and generative self is also a haphazard self, which may be aligned with counterproductive behaviors. As a secondary aim, we discuss racial and ethnic differences in what have been called “deaths of despair”: the recent rise in mortality among whites with no more than a high school diploma due to suicides, drug overdoses, and alcohol-related liver failure (Case and Deaton 2015, 2017; see also Coile and Duggan, this volume). Working-class adults often make comparisons between their own and their parents’ standards of living when their parents were their age, as shown in our in-depth interviews. However, drawing both on our interviews and representative survey data, we find that this comparison often leads to more negative assessments among whites than minorities (for both men and women in survey data). The reason is that non-college-educated whites are often comparing themselves to a generation that they feel had more opportunities than they have, whereas many blacks and Hispanics are more often comparing themselves to a generation that, in their view, had fewer opportunities. 

Our interview methodology has both weaknesses and strengths. First, we are not drawing on a representative sample. Our interview subjects do not include working- class men without children, or from smaller cities and rural areas, or from the western or south-central regions of the United States. Moreover, men in our sample are more disadvantaged than a simple random sample of men with a high school degree but no college diploma, in part because they were all living in cities where many traditional working-class neighborhoods were in decline. However, an advantage of our approach is that it allows us to explore complex questions in a rich and granular way that allows unanticipated results to emerge. It is also useful for identifying processes and mechanisms that may not be captured in surveys or administrative data sources. Finally, in-depth qualitative interviews allow researchers to situate specific actions and attitudes within the larger context of respondent’s lives. The autonomous, generative identity we describe here can be seen in part as a way in which working-class men have reacted to structural changes in the labor market. Yet the way people describe their perceptions and aspirations will also have further effects on their behavior. We view the hypotheses advanced in this paper, derived from these interviews, as starting points worth further exploration by social scientists, not as definitive evidence.

Profiling and Apprehended Bias

In Gaynor v Local Court of NSW and Ors [2019] NSWSC 516 the Court has considered the plaintiff's application that the judge should disqualify himself because of apprehended bias on the basis of the alleged political views of the judge’s tipstaff.

The plaintiff  - previously noted at eg here - argued that the alleged political views of the tipstaff would cause an independent observer to believe that the judge could not or might not bring an independent mind to the task of deciding the case. The application was dismissed, with the Court noting

An alarming and troubling aspect of the present application is the insidious way in which the personal interests and activities of a member of my court staff have become thrust, without any forewarning, knowledge or permission, into the public arena of these proceedings in the guise of what is alleged to be a concern that there is or may be a reasonable apprehension that I may not be impartial. Some members of the community might struggle to make that connection. I count myself among people in that hypothetical group. The significance of anything revealed by the evidence in this case to any issue I have to determine is about as high as it would be if I were deciding a case dealing with the water allocation example I gave earlier and one of the parties discovered that my tipstaff had done work experience on a cotton farm in the basin or was an enthusiastic supporter of downstream wetlands integrity.

The judgment states

Bernard Gaynor and Garry Burns have been combatants opposed to each other in contentious and acrimonious litigation for a number of years. Their disputes have reached the NSW Civil and Administrative Tribunal (Burns v Gaynor [2015] NSWCATAD 211), the Court of Appeal (Burns v Corbett; Gaynor v Burns (2017) 96 NSWLR 247; [2017] NSWCA 3) and even the High Court of Australia (Burns v Corbett; Burns v Gaynor (2018) 92 ALJR 423; [2018] HCA 15). These proceedings are but a further manifestation of this litigious cavalcade. 

Mr Gaynor lives in Queensland. He earns a living as what he describes as an independent conservative blogger focusing on issues regarding national security, politics and the defence of the traditional family unit and western Christian civilisation and values. Mr Burns is a self-described gay rights activist who has uploaded material to his own website for public dissemination. It is fair to say that the views of Mr Gaynor and Mr Burns on several issues of public interest do not closely correspond and are effectively diametrically opposed. 

By his amended summons filed on 10 August 2018, Mr Gaynor seeks a series of orders, including but not limited to a declaration that all proceedings commenced by Mr Burns against him in the Local Court are void and of no effect because no lawful application or appeal has been made by Mr Burns under s 34B(2)(a) of the Civil and Administrative Tribunal Act 2013 or because the Local Court lacks jurisdiction under s 34 of the Local Court Act 2007 or s 49ZS and s 49ZT of the Anti-Discrimination Act 1977. This dispute was listed for hearing to commence before me on 2 May 2019. In the events that occurred, I proceeded to hear the matter and to reserve my decision. 

However, before that happened and even before the hearing proper commenced, Mr P E King of counsel for Mr Gaynor made an oral application without notice that I should disqualify myself upon the basis of apprehended bias. The application was efficiently argued in appropriate detail and can only presently be understood by reference to the several matters deposed to by Mr Gaynor in his affidavit sworn 2 May 2019 that was read without objection in support of the application. ... 

Gaynor said this:

“42. I believe that [Harrison J’s tipstaff] has actively campaigned for ideas that are diametrically opposed to the ideas that I support as a practising Catholic.

43. I believe that the evidence shows that [Harrison J’s tipstaff] was selected as a tipstaff in a process conducted directly by his Honour Justice Harrison. 

44. I believe that [Harrison J’s tipstaff] is linked to the third defendant through his participation with the Aids Council of NSW (ACON) and Wear it Purple and the third defendant’s leadership of an organisation that consults with the Aids Council of NSW (ACON) and promotes Wear it Purple. 

45. The fourth defendant’s complaints include complaints about my views on homosexual activism, homosexual activist organisations, health impacts of homosexual activities and the Sydney Gay and Lesbian Mardi Gras. 

46. I believe that the evidence shows that [Harrison J’s tipstaff] has participated in homosexual activism and been a member of homosexual activist organisations and also attended and supported the Sydney Gay and Lesbian Mardi Gras. 

47. I believe that the evidence shows that [Harrison J’s tipstaff] sought to downplay the health risks of homosexual activity and to argue that laws criminalising the knowing transmission of HIV should be repealed. 

48. I believe that the evidence shows that [Harrison J’s tipstaff] invited the fourth respondent to file submissions shortly before this hearing, despite the fact that the fourth respondent has filed a submitting appearance. 

49. I believe that [Harrison J’s tipstaff’s] background and activities raises the prospect of actual and/or perceived bias in relation to his duties as Tipstaff to his Honour, Justice Harrison in this matter. 

50. I believe that [Harrison J’s tipstaff’s] position as Tipstaff to his Honour, raises perceived bias in relation to his Honour’s ability to preside over this hearing.”

Mr Gaynor did not rely on any further evidence in support of his application.

Gaynor's counsel, Mr King

contended that this material would satisfy the well-known test for the identification of apprehended bias so clearly set forth in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 as follows: 

“[7] The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror. 

[8] The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an ‘interest’ in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.”

The Court notes

A case of some interest, to which Mr King did not refer me, is Hurley v McDonald’s Australia Ltd [2000] FCA 961. In that case, the offer of employment to a judge’s associate by a firm of solicitors that represented a party in large commercial litigation before the judge was found not to lead to a conclusion that there may have been a reasonable perception that the applicant had been deprived of her entitlement to a fair trial. 

As said by Dowsett J: 

“[87] I doubt very much whether any reasonable person would expect that the former associate had significant confidential information relevant to this case or would be likely to communicate it if he did. Nonetheless, the risk of an unreasonable suspicion may have justified some attempt to protect the integrity of such a long trial...A fair assessment of all of the circumstances... would, in my view, lead inevitably to the conclusion that there was no basis to suspect that there had been any unfairness, let alone a miscarriage of justice.” 

The transcript will reveal that when Mr King made his application, and after I had had an opportunity to read Mr Gaynor ’s affidavit, I asked Mr King, in terms, what any of this had to do with me. Mr King’s response was as follows:

“We have a situation where a member of your Honour’s personal staff, a gay rights activist, has sent unsolicited emails, apparently on behalf of the Court, in a way which is not normal. One would have thought that such issues would have been done [sic] by direction. They are unnecessary because it was clear that Justice Bellew had made clear and certain directions, including making an order for costs against the defendant, about the following submissions, which in ours were clearly complete. So there is an impression of ‘Is this all you’ve got’.”

I was not by my remark intending to depreciate the debate or the understandable importance to Mr Gaynor of his desire for, and his entitlement to, a fair trial. I was, on the contrary, genuinely confused about the possibility of there being any discernible or suspected connection between the evidence relied upon on the one hand and the existence of a perception of apprehended bias on my part on the other. Although Mr King’s concerns were ultimately explained, they appeared also to be based upon the suggestion that the inquiry was improper because the parties concerned had entered submitting appearances. That fact had not been communicated to me before the inquiry was made. I am in any event unable to understand the relationship, if any, between the request made by my tipstaff with my authority in those terms and any apprehension of bias. It was in that context that I said this to Mr King at the time:

“I don’t mean to interrupt you but could I do so by saying I have only been in this job for 12 or so years but it has become quite a regular occurrence when matters are listed for hearing and as the hearing approaches before [sic, for] the Court, either through an associate or a tipstaff, to enquire of parties whether or not they propose to make submissions or whether they want to update their submissions. We sometimes have to come to Court and have to deal with matters of which we have not been given any notice. On one view the present application is an example of that.”

The personal views of my tipstaves are largely unknown to me, except to the extent that they are revealed in the context of the relationship I have with them as my assistant in chambers. My current tipstaff’s employment was neither influenced by nor dependent upon his social or political views. It was, in contrast, significantly informed by his outstanding academic and employment credentials. 

However, even assuming it were otherwise, and I was intimately acquainted with his views and opinions on everything, I fail to understand what is said by Mr King to be the connection between any of my tipstaff’s views and the perception that I might not bring an independent and unbiased mind to the resolution of the dispute in this case. In my limited experience, cases are decided by judges, not their staff. The fact that a judge may engage his or her tipstaff in a vigorous and lively debate about issues that arise in cases heard by the judge is a circumstance far removed from instances where that discussion is influenced by a tangible connection with, or potential interest that the tipstaff might have in, the outcome of the proceedings.

The difficulty with Mr King’s submissions is that they fail to identify, except perhaps by innuendo, how an independent observer might construe the evidence in Mr Gaynor ’s affidavit in a way that would cause him or her to feel that I was possibly unable, or that there was even an appearance that I was possibly unable, to bring an impartial mind to the resolution of the dispute. As it was put in Antoun v R (2006) 224 ALR 51; [2006] HCA 2:

“[83] It should be noted that the test as stated [in Ebner] emphasises that a possibility, that is relevantly to say, the appearance of a possibility of an absence of an impartial mind on the part of the judge, may lead to disqualification. Their Honours also make it clear that the test does not involve, or require an inquiry into the facts or matters which brought the apprehended state of mind of the judge to one of apparent bias. It follows that the fact that the case may not only at the time, but also in retrospect, seem to be a strong one, indeed a very strong one, does not absolve the judge from giving it a fair hearing, and attending carefully and open-mindedly to the submissions of the parties made at appropriate times.”

It seems to be uncontroversial as a factual matter that Mr Gaynor and Mr Burns have strongly held and strongly expressed views on issues of gay rights, and associated issues such as same sex marriage. It is important as well to observe that these proceedings are not concerned, if indeed any similarly constituted proceedings could ever be concerned, with an assessment of the “correctness” or “appropriateness” of these competing views or with the expression by me of a preference for either the views of Mr Gaynor or Mr Burns. The only relevance of their respective positions on such matters is that they have been the catalyst for Mr Burns’ complaints about Mr Gaynor that have found their way to the Local Court of New South Wales in the fashion earlier described. Put another way, there is no necessary connection between the subject matter of Mr Burns’ complaints to which Mr Gaynor takes exception on the one hand and the resolution of the jurisdictional and constitutional issues that they have generated on the other hand. The jurisdictional and constitutional issues could just as easily have been generated by a dispute between a resident of Queensland and a resident of New South Wales over water licences and allocations in the Murray Darling Basin.  ...

In considering content on Facebook - an instance of profiling litigants  on social media platforms - the Court stated

Annexure “BG G” is described by Mr Gaynor as “a copy of a Facebook post made by [Fagan J’s tipstaff] on 31 October 2018”. Mr Gaynor did not depose to any evidence that my tipstaff “liked”, commented upon, or endorsed that post in any way. I am unable to understand the relevance of a Facebook post made by another judge’s tipstaff to the application that I recuse myself because of my tipstaff’s alleged political views. Finally, Mr Gaynor deposed to the abstract of my tipstaff’s article published in 2019 in the Alternative Law Journal entitled “Criminalising Infection: Questioning the assumption that transmitting HIV constitutes grievous bodily harm”. The abstract, attached as annexure “BG L” to Mr Gaynor ’s affidavit, states:

“This article considers whether, in light of medical advances in the treatment of human immunodeficiency virus, the intentional or reckless transmission of human immunodeficiency virus should constitute grievous bodily harm in New South Wales law. The author argues that as a result of the major medical advances in the treatment of human immunodeficiency virus, it should no longer be simply assumed that human immunodeficiency virus is grievous. The article also considers a related question of statutory interpretation, namely how should the word ‘disease’ in s 4(1)(c) of the Crimes Act 1900 (NSW), which provides that grievous bodily harm includes ‘a grievous bodily disease’, be interpreted”.

Mr Gaynor relies upon the article as evidence for the proposition that my tipstaff has argued “that laws criminalising the knowing transmission of HIV should be repealed”. My tipstaff’s article argues no such thing. On the contrary, as the abstract reveals, the article argues that “as a result of the major medical advances in the treatment of HIV, it should no longer be simply assumed that HIV is grievous”. The article also considers a question of statutory construction. I am unable to see how an article about the criminal law of assault and HIV has any relevance to establishing my tipstaff’s political views or in turn how those alleged political views about HIV have anything to do with an apprehension of bias.

The authorities make it clear that the wisdom that informs this area of discourse is derived from an understandable and commendable insistence upon judicial impartiality and independence. Except in cases where actual bias is alleged, the appearance of the possibility of the absence of an impartial mind is enough because it may lead to a perception that the result might not be fair, not that it is actually unfair. In the present case, without feigned ingenuousness, I am unable to see how anything upon which Mr Gaynor wishes to rely in this application could raise or support the reasonable perception of an appearance that I could not or might not bring an independent or impartial mind to the task of deciding this case.

FCC

'The Shallow State: The Federal Communications Commission and the New Deal' by Dan Ernst (2019) 4 University of Pennsylvania Journal of Law and Public Affairs 403-458 comments 

American lawyers and law professors commonly turn to the New Deal for insights into the law and politics of today’s administrative state. Usually, they have looked to agencies created in the 1930s that became the foundation of the postwar political order. Some have celebrated these agencies; others have deplored them as the core of an elitist, antidemocratic Deep State. This article takes a different tack by studying the Federal Communications Commission, an agency created before the New Deal. For most of Franklin D. Roosevelt’s first two presidential terms, the FCC languished within the “Shallow State,” bossed about by patronage-seeking politicians, network lobbyists, and the radio bar. When Roosevelt finally let a network of lawyers in his administration try to clean up the agency, their success or failure turned on whether it could hire the kind of young, smart, hard-working lawyers who had at other agencies proven themselves to be the “shock troops of the New Deal.” Only after James Lawrence Fly, formerly general counsel of the Tennessee Valley Authority, became chairman and hired lawyers like himself did the FCC set sail. It cleaned up its licensing of radio stations and addressed monopoly power in the industry without becoming the tool of an authoritarian president or exceeding its legislative and political mandates.

Personhood

'Can You Hear the Rivers Sing? Legal Personhood, Ontology, and the NittyGritty of Governance' by Cristy Clark, Nia Emmanouil, John Page and Alessandro Pelizzon in (2019) 45 Ecology Law Quarterly 787 comments 

In 2017, multiple claims and declarations from around the legal world appeared to signal a tipping point in the global acceptance of a new and evolving legal status for nature. Whether it was litigation in the United States, India, and Colombia, or legislation emanating from New Zealand and Australia, the law seems to be grappling with a new normative order in relation to the legal status of nature. However, this shift has been a long time coming, being at least fortyfive years since Christopher Stone famously asked whether trees should have legal standing. This Article explores what this emerging Ecological Jurisprudence means for the legal personhood of rivers. Nature, the environment, and even single complex ecosystems, are seldom easily quantifiable as bounded entities with geographically clear borders. Within the complex spectrum of establishing where a legal subject ends and another begins, however, rivers are more easily identifiable. A river’s very being is premised on historicized boundaries that measure its watery ambit from riverbed to riverbank. Still, rivers elude a final, clearly defined, and uncontroversial description. As a result, they inhabit a liminal space, one that is at the same time geographically bounded, yet metaphorically transcendent, physically shifting, and culturally porous. Drawing on comparative case studies from Ecuador, Colombia, India, New Zealand, the United States, and Australia, this Article explores the deep and often murky bond of the river and us. This relational, ancient, and ultimately environmentally urgent bond forms the prism through which the rich story of legal personhood, ontological change, and the consequential nitty-gritty of river governance is told. Indeed, this complex story is best heard through the metaphor of song, since “[i]f we are to take metaphor seriously, we must explore its poetic dimension, the persuasive power of its rhetoric, coupled with its aesthetic appeal.”2 In seeking to discern a river’s legal personality, we ask, can we hear the rivers sing?

The authors argue

 In 2017, multiple claims and declarations under legislation and case law from around the world appeared to signal a tipping point in the global acceptance of a new and evolving legal status for nature. In March 2017, the High Court of Uttarakhand, India, handed down two judgments granting legal personhood to the Ganges and Yamuna Rivers and their tributaries,  and to their glaciers, lakes, air, meadows, dales, jungles, forests, wetlands, grasslands, springs, and waterfalls.  These cases were followed in May by the coming into effect of the Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 (N.Z.), which formally granted legal personhood to the Whanganui River in Aotearoa New Zealand.  In September 2017, the NGO Deep Green Resistance commenced litigation in the name of the Colorado River Ecosystem in the U.S. District Court in Denver, Colorado, seeking to have the Ecosystem declared a juridical person capable of possessing rights.  In December 2017, a memorandum between the local Māori community and the Crown proposed to extend legal personality to the sacred Mount Taranaki on the west coast of New Zealand’s North Island.  Finally, also in December, the Yarra River Protection (Wilip-gin Birrarung murron) Act 2017 (Vic.) came into effect in the Australian state of Victoria, and declared the Yarra River (or Birrarung in the Woi-wurrung language) “one living and integrated natural entity.” 

Although this explosion of claims and declarations in 2017 seems to herald a new normative order in relation to the legal status of nature, in reality this shift has been a long time coming. Forty-five years ago, when Christopher Stone famously asked whether trees should have standing, his suggestion was met with near deafening silence. Even though his question challenged long-held ontological assumptions about the position of humans within the cosmos and raised important juridical questions about the legal categorization of nature as merely an inert object of other legal persons’ rights, the proposal was not immediately followed by any legal initiative or judicial response. 

However, Stone’s biocentric argument was to be further advanced, well over twenty years later, by the emergence of ecocentric legal arguments, first  in the writings of eco-theologian Thomas Berry, and later by South African anti-apartheid activist and environmental lawyer Cormac Cullinan. After authoring Wild Law in  Cullinan described this emerging “Earth Jurisprudence” as

 a philosophy of law and human governance . . . based on the idea that humans are only one part of a wider community of beings and that the welfare of each member of that community is dependent on the welfare of the Earth as a whole. From this perspective, human societies will only be viable and flourish if they regulate themselves as part of this wider Earth community and do so in a way that is consistent with the fundamental laws or principles that govern how the Universe functions[.]

The legal world, this time, responded to Cullinan’s ideas with gusto. The invitation to include Nature  within the realm of legal subjects was soon picked up by a number of jurisdictions. The Community Environmental Legal Defense Fund in the United States began to include local ecosystems as legal subjects within municipal ordinances as early as  In 2008, Ecuador granted Nature intrinsic rights guaranteed by four constitutional provisions. Bolivia followed, first tentatively in its 2009 Constitution, and then more vigorously with two laws of Mother Earth enacted in 2010 and 2011. More recently, New Zealand recognized legal personhood for two distinct geographical features, the Te  Urewera forest in 2014 and the Whanganui River in 2017, and is currently negotiating the same recognition for a third, Mount Taranaki. 

In addition to these constitutional and legislative initiatives, a series of cases have now been successfully litigated in numerous civil and common law jurisdictions around the world, making it apparent that the emergence of an Ecological Jurisprudence  is not an isolated event. The ontological challenge to an anthropocentric view that identified human beings as the measure and end of all existence, which Roderick Nash had already masterfully begun to map in 1989, and which Thomas Berry and Cormac Cullinan had fully embraced with their ecocentric arguments at the turn of the century, is now fully realized. A nuanced analysis of this emerging jurisprudence is necessary to avoid the risk of “occupy[ing an] indeterminate terrain, . . . one already inscribed by humanist precepts of what ‘rights’ and ‘nature’ might consist of.”  More importantly for the present Article, it is also readily apparent that, in the words of Christopher Stone, Nature makes for a “shifty client,” or, paraphrasing Kate Soper, a “promiscuous subject.”  Nature, the environment, or even single complex ecosystems are seldom easily quantifiable as bounded entities with geographically clear borders. Within the complex spectrum of establishing where a legal subject ends and another begins, however, rivers are somewhat more easily identifiable, their very being premised on historicized boundaries that measure their watery ambit from riverbed to riverbank. And yet, rivers still elude a final, clearly defined, and uncontroversial description. As a result, rivers inhabit a liminal space, one that is at the same time somewhat geographically bounded and yet metaphorically transcendent, physically shifting, and culturally porous. 

It is thus deeply emblematic that rivers constitute a particularly promising medium for the ontological shift mentioned above. Rivers and life share a profound bond, one that Justice Douglas already articulated in 1972: 

The river, . . . is the living symbol of all the life it sustains or nourishes— fish, aquatic insects, water ouzels, otter, fisher, deer, elk, bear, and all other animals, including man, who are dependent on it or who enjoy it for its sight, its sound, or its life. The river as plaintiff speaks for the ecological unit of life that is part of it. Those people who have a meaningful relation to that body of water—whether it be a fisherman, a canoeist, a zoologist, or a logger—must be able to speak for the values which the river represents and which are threatened with destruction. 

Fast-forward again forty-five years, and the sentiment remains identical, albeit the scale of destruction has intensified. “Rivers are the arteries of the earth, and lifelines for humanity and millions of other animals and plants. It’s no wonder they have been venerated, considered as ancestors or mothers, and held up as sacred symbols.”29 Paradoxically, and tragically, “we have also desecrated them in every conceivable way.” 

This Article thus focuses on rivers—in South and North America, India, and the Antipodean South—to tell a story of rights of Nature, of the emergence (or not) of legal personhood, and of the paradigmatic change that re-orients the law away from anthropocentrism to something else. Our river case stories are told in a relatively diachronic order. We start in Part I with the Vilcabamba River in Ecuador, a relatively short, although internationally well-known judgment that interprets the extent of the early constitutional guarantees afforded Nature, centering on an environmentally degraded river system. In Part II, the focus shifts to the intimately contextual and cultural narrative of the Whanganui River in New Zealand, a river song heard with astonishing clarity by that country’s Parliament—with its passage of a statute that sings the soaring rhetoric of ontological change yet prescribes the necessary nitty-gritty detail of governance. Part III returns to South America, and the more voluminous, ontologically sophisticated judgment of the Atrato River. In this case, the Colombian Constitution was successfully interpreted by the Colombian Constitutional Court to vindicate the Atrato’s standing as a subject of legal rights. Part IV explores the yet-to-be-enforced decisions of the High Court of the Indian State of Uttarakhand, which sought to protect two of India’s most iconic and sacred rivers—the Ganges and the Yamuna—from the ongoing onslaught of pollution and degradation. These two judgments underline that judicial ambition needs to be matched by a commensurate political willingness to enact paradigmatic change. In Part V, the unsuccessful attempt to protect the Colorado River through   a “first-in-the-nation”  rights of Nature lawsuit sings the sad song of an iconic yet diminished U.S. river—now more an “industrial project”  than a natural waterway, a river long stripped of its wildness and freedom. Part VI ends our river case studies with the Yarra River/Birrarung in the Australian state of Victoria. In an Australian first, the Victorian state government legislated an Act that gives voice to the river as “one living and integrated natural entity,” yet curiously denies it its legal standing. Part VII concludes with a discursive review of these many river cases—and their legal, social, and cultural implications. 

As implied by the above structure, this Article employs a comparative methodology. Contrary to Henry Lawson’s famous assertion that comparative law is “bound to be superficial,”  this paper will instead follow Pierre Legrand’s recognition that law is profoundly and inextricably inscribed in culture,  aware that “it is never possible to carry out a wholly ‘meaningful’ transplant of law from one culture to another, because law is never limited to rules,” as Gary Watt writes in articulating Legrand’s position. Although we do not share Legrand’s somewhat pessimistic view in relation to the almost titanic complexity of contextualizing different legal formants within distinct cultural milieus, we also, at the same time, wish to resist the uncontrolled urge toward harmonization and transnational convergence of rules through apparent, and inevitably superficial, similarities.

As Watt suggests:

[o]ur understanding of law will remain superficial so long as we fail to appreciate that law is neither a doctrinal science that will produce predictable outcomes as laboratory experiments might, nor merely an empirically quantifiable sociological fact or an economic construct, but that it comprises arts of imaginative reading, persuasive speech, creative writing and practical performance engaged in as living arts by living people.

The effort to navigate the difficult waters of a legal comparison of seemingly similar and yet culturally unique river cases is guided by the use of a specific metaphor, that of the song of each river. We are inspired, in doing so, by Peter Goodrich’s insightful suggestion that “[t]he comparative takes hold in the precise moment of the dissipation of the juridical, in the instance of non-law,” and thus the analysis of both statutory provisions and judicial decisions will be balanced against a host of cultural expressions, narratives, and apparently nonlegal imagery. Of course, to focus on rivers is to highlight what these geographically and culturally distinct watery bodies share in common. However, in doing so, we need also to be mindful of difference, that each and every river sings its own unique song. We should not ignore the grounded facts, the nuanced and not so nuanced contexts—geographic, cultural, social, historical, and legal— that shape each river’s course. What we ultimately explore in this Article are the multiple songs of many rivers—some share converging melodies, others perhaps are discordant. This attention to the cultural context will emphasize the focus on both the ontic and epistemic dimensions of the cases analyzed. This approach is taken in order to properly inscribe their comparative appraisal within the shift toward an Ecological Jurisprudence introduced above. 

Lastly, the very idea of the river highlights an anthropocentric ambivalence, an inconsistency in how humans conceive of and implement the legal personhood of Nature, and legal personhood of non-human entities more generally. In parliamentary debates preceding the passage of the Whanganui bill, New Zealand legislators exhorted “do not talk about the river, but rather to it.” Yet, in countless debates, Members of Parliament spoke at length about the river, their shared histories of learning to swim before walking, of crossing bridges on the way to school, or halcyon childhood memories of summer adventures on rapids. From a Māori worldview, speakers told Parliament how the river “runs through their veins: a river of whakapapa, of sacred significance, a river that brings together the genealogies and legacies of a people who have swum, washed, played, prayed, dived, paddled and travelled Te Awa Tupua as the central artery of their tribal heart.” This deep and often murky bond of the river and us is the prism through which we explore the rich story of legal personhood, ontological change, and the consequential nitty-gritty of governance. After all, we ask, can we hear the rivers sing?