Disloyalty: Exploitation and Privacy in Australian Loyalty Card Schemes

The ACCC Customer loyalty schemes draft report highlights questions about privacy and consumer protection.

It states

The Australian Competition and Consumer Commission (ACCC) has examined consumer and competition issues that are associated with consumer-facing customer loyalty schemes in Australia, including the way in which customer loyalty schemes collect, use and disclose consumer data. Consumer and competition issues arising from customer loyalty schemes are a current priority for the ACCC. The operators of customer loyalty schemes must ensure they comply with the Australian Consumer Law (ACL) and make sure their terms and conditions do not include any unfair contract terms. It is also paramount that the operators of customer loyalty schemes ensure consumers have a genuine opportunity to review and understand the policy and operation of customer loyalty schemes to avoid misleading and deceptive conduct.

A significant number of Australian consumers have reported experiencing a variety of issues participating in loyalty schemes. The ACCC and ACL regulators in states and territories have received approximately 2000 reports about loyalty schemes in the five years to December 2018. The ACCC’s review of the major customer loyalty schemes in Australia focused on the following key issues:

• Consumer issues: whether consumers are properly informed and receive the benefits advertised by loyalty schemes. 

• Data practices: the collection, use and disclosure of consumer data by loyalty schemes and their partners. 

• Competition issues: the potential impact of loyalty schemes on competing firms, in particular on new entrants.

The purpose of this report is to highlight the consumer and competition issues associated with customer loyalty schemes to educate consumers and to inform the industry of the ACCC’s concerns with certain practices.

Based on the information gathered during its review, the ACCC is concerned about a range of business practices in the customer loyalty scheme industry which have the potential to cause widespread consumer detriment. They include loyalty schemes:

• that do not present their terms, conditions and privacy policies in a way that consumers can readily understand 

• that make unilateral changes to their terms and conditions in a way that may be unfair to consumers 

• collecting, using and disclosing consumer data in ways that do not align with consumers’ preferences. \

This includes loyalty schemes not providing sufficient transparency and meaningful consumer control over the collection, use and disclosure of consumer data, and engaging in the following practices:

• seeking broad consents from consumers and making vague disclosures to them about the collection, use and disclosure of their data 

• providing consumers with limited insight and control over the sharing of their data with unknown third parties 

• providing only a limited ability for consumers to opt out of targeted advertising delivered by third parties on behalf of loyalty schemes. 

The ACCC has outlined in this report its concerns and views on certain practices, and calls on operators of customer loyalty schemes to review and consider these practices in the context of the ACL. In particular, loyalty schemes should consider whether consumers are being misled or subject to unfair contract terms. Further, loyalty schemes should review their approach to presenting terms and conditions to ensure consumers have a genuine opportunity to review and understand their policy and operation.

Having placed the industry on notice, the ACCC encourages consumers to contact us and report concerns where these practices are continuing with their customer loyalty schemes. The ACCC will consider these reports in deciding whether enforcement action will be required to effect broader change. 

The objectives of customer loyalty schemes 

Customer loyalty schemes are ubiquitous in many sectors of the Australian economy and are particularly prevalent in the airline, supermarket, credit card, hotel and car rental industries. Consumer participation in loyalty schemes is high and the average Australian carries four to six loyalty cards. Fundamentally, loyalty schemes are a marketing device with the primary objective of attracting and retaining customers. Many firms invest in loyalty schemes with the aim of gaining a competitive advantage over rivals by influencing customer behaviour to encourage repeat purchases and introduce customer resistance to competing offers or products. In this sense, loyalty schemes have a dual strategy—an offensive strategy of acquiring new customers as well as a defensive strategy of retaining existing customers. Increasingly, for some loyalty schemes, this defensive strategy includes the collection and use of their customers’ data in order to develop consumer insights, which may be shared with or sold to other businesses, and to target customers with tailored advertising. Some loyalty schemes may also use this data to deliver targeted and personalised advertising to their own customers on behalf of other businesses. 

Consumer issues 

Consumers may benefit from their participation in loyalty schemes by receiving rewards such as discounts on products and services, and access to exclusive offers and service levels. They may receive these benefits on purchases they would have otherwise made.

Loyalty schemes can provide consumers with a range of options to earn rewards and, increasingly, customers of loyalty schemes are able to earn and spend points directly with a number of different merchants that participate within a loyalty scheme’s partner network. The ACCC has received complaints from customers of loyalty schemes that alleged they had not earned, maintained or redeemed their points in the manner they anticipated, with these consumers reporting that they did not obtain any benefits from participation at all. Complaints included that some operators of loyalty schemes:

• failed to adequately advise them about critical components of their loyalty schemes, including the need to remain ‘active’ by earning or redeeming points within a specified period to avoid the expiry of points, or about the restricted availability of redemption opportunities, and 

• made unilateral changes that unfairly restricted the benefits available under a loyalty scheme, for example, by unilaterally reducing the rate at which they could earn points, or the value of their points previously accumulated. 

The ACCC is concerned about a range of business practices in the industry and calls on operators of customer loyalty schemes to review and consider their practices in the context of the ACL. To help facilitate well-informed engagement and thereby help consumers optimise the benefits of participation in loyalty schemes, the ACCC considers that loyalty scheme operators should do more to help consumers understand how their loyalty schemes operate, including by ensuring that consumers are provided with relevant information at the right time and in the right way to make informed decisions.

Loyalty scheme operators need to review their approach to presenting terms and conditions of loyalty schemes and ensure changes are fair and adequately notified.

Loyalty scheme operators should review their approach to presenting the terms and conditions of loyalty schemes to ensure consumers have a genuine opportunity to review and understand their policy and operation. Loyalty scheme operators must ensure they comply with the ACL, including by avoiding statements that are incorrect or likely to create a false impression, and avoiding unfair contract terms. 

Draft recommendation 1: Improve how loyalty schemes communicate with customers 

The ACCC also notes that the findings in this report reflect those of the ACCC’s Digital Platforms Inquiry. 

Draft recommendation 2: Prohibition against unfair contract terms and certain unfair trading practices 

The ACCC’s findings in this draft report reinforce the Digital Platforms Inquiry Final Report’s recommendations for the need for a prohibition against unfair contract terms and certain unfair trading practices. Consistent with the Digital Platform Inquiry Final Report’s recommendations, the ACCC recommends that the Australian Consumer Law be amended:

• so that unfair contract terms are prohibited (and not just voidable) 

• to include a prohibition against certain unfair trading practices.

The scope of a prohibition on certain unfair trading practices should be carefully developed such that it is sufficiently defined and targeted, with appropriate legal safeguards and guidance. The ACCC notes the current work on this issue being undertaken as part of the Consumer Affairs Australia and New Zealand (CAANZ) process, and will progress its support for the recommendation through that forum. 

Data practices 

Membership of a loyalty scheme is voluntary and generally provided at zero monetary cost to the consumer. In exchange for the benefits provided by loyalty schemes, loyalty schemes derive value from consumers by collecting data, including personal information, about them. Increasingly, loyalty schemes generate revenue from the data they collect about the habits, interests and preferences of their customers, which can be used to profile consumers to produce insights about their purchasing behaviour. Loyalty schemes may collect consumer data both actively, for example information voluntarily provided by the consumer when joining the loyalty scheme, as well as passively, for example the background collection of data through a consumer’s use of a platform, apps on a device or use of third party websites. The data collected by some loyalty schemes about a consumer can be further enriched by linking it with external data sources, including from data brokers or through data-sharing platforms. These external data sources collect masses of information on consumers, which can be combined with relevant data a loyalty scheme holds about its customers. The combining of data allows greater value to be extracted from many loyalty scheme’s databases for the purposes of generating insights about consumers to enable targeted advertising and personalised marketing. This data can also be used not only to improve the offerings of the loyalty scheme operator, but also to share insights with other partners or sell those insights to third parties.

While Australian consumers have different preferences, attitudes and levels of awareness when it comes to the data they share with loyalty schemes, a number of surveys have suggested that many are concerned about sharing their data with companies, including loyalty schemes. The surveys reviewed in this draft report suggested that many consumers are concerned about the sharing of their data with unknown third parties and targeted advertising, and whether their data is being used responsibly. Many consumers are also seeking more transparency and control over the data they provide to loyalty schemes.

The terms and conditions of loyalty schemes’ privacy policies often prevent consumers from making informed choices that align with their privacy and data collection preferences. An imbalance of bargaining power and significant information asymmetries exist between consumers and the major loyalty schemes examined in this report. These are primarily seen in the broad consents that these loyalty schemes seek from consumers about the collection and use of their data, and the vague disclosures they make to consumers about how their data could be used and with which entities it could be shared. 

Draft recommendation 3: Improve the data practices of loyalty schemes  

Loyalty schemes need to review their approach to presenting consumers with information about how they handle consumer data and provide consumers with meaningful control over their data. Privacy policies of the customer loyalty schemes examined in this draft report are opaque and consumers are often unable to make informed choices about, and have limited control over, the collection, use and disclosure of their data. 

The ACCC encourages loyalty schemes to take steps now to address the concerns raised in this report, including by:

• reviewing their clickwrap agreements for unfair contract terms, including by assessing the potential consumer detriment of unilateral variation terms 

• improving the clarity, accessibility, navigability and readability of privacy policies, including by using definitions consistent with those in the Privacy Act 

• minimising information overload for consumers by prominently presenting relevant aspects of their terms, conditions and privacy policies to consumers during key interactions 

• ending the practice of automatically linking customers’ payment cards to their profile to track their purchasing behaviour and transaction activities when they do not scan their loyalty card 

• outlining with which entities consumer data is being shared and for what purposes, and drawing to consumers’ attention how their data is being handled (including, for example, by providing a prominent notice during relevant interactions with customers) 

• disclosing to consumers the sources of third party advertising, the sources of the consumer data used to inform that advertising, and the channels through which they may receive targeted advertising and how their consumer data may be used to generate leads (including, for example, via a regularly updated online notice) 

• providing consumers of loyalty schemes with more meaningful controls over the collection, use and disclosure of their data to respond to consumer demands to align the data practices of loyalty schemes with the data preferences of consumers.

Further, the ACCC’s concerns identified in this draft report have direct parallels with those identified in the ACCC’s Digital Platforms Inquiry Final Report. These include:

• insufficient transparency and meaningful consumer control over the collection, use and disclosure of consumer data 

• a lack of informed and genuine choice for consumers engaging in the digital economy 

• a lack of consumer protection and effective deterrence under existing laws governing data collection.

To remedy these issues, the ACCC has made a number of economy-wide recommendations in its Digital Platforms Inquiry Final Report about privacy law that are relevant.  

Draft recommendation 4: Strengthen protections in the Privacy Act and broader reform of Australian privacy law  

The ACCC’s findings in this draft report reinforce the Digital Platforms Inquiry Final Report’s recommendations for privacy law reform. Consistent with the Digital Platforms Inquiry Final Report’s recommendations, the ACCC recommends strengthening the Privacy Act by: 

• updating the definition of personal information in line with current and likely future technological developments to capture any technical data relating to an identifiable individual 

• strengthening notification requirements to ensure that the collection of consumers’ personal information directly or by a third party is accompanied by a notice of the collection that is concise, intelligible and easily accessible, written in clear and plain language, provided free of charge, and accompanied by appropriate measures to reduce the information burden on consumers 

• strengthening consent requirements to require that consents are freely given, specific, unambiguous and informed and that any settings for additional data collection must be preselected to ‘off’ 

• ensuring consents are required whenever personal information is collected, used or disclosed by an entity subject to the Privacy Act, unless the personal information is necessary to perform a contract to which a consumer is a party, required under law, or otherwise necessary in the public interest 

• requiring entities subject to the Privacy Act to erase the personal information of a consumer without undue delay on receiving a request for erasure from the consumer, except in certain circumstances 

• introducing direct rights for individuals to bring actions or class actions before the courts to seek compensation for an interference with their privacy under the Privacy Act.

As well as these recommendations for targeted amendments to the Privacy Act, the ACCC is also recommending broader reform of the Australian privacy regime to maintain effective protection of consumers’ personal information in the longer term. This includes consideration of the current objectives and scope of the Privacy Act, and the introduction of a statutory tort of privacy as recommended by the Australian Law Reform Commission.  

Competition issues  

Loyalty schemes have the potential to raise competition concerns. This can occur depending on the extent to which loyalty schemes ‘lock up’ customers and introduce switching costs that increase barriers to entry and expansion for rival firms. If barriers are enduring and induce exit or deter entry, consumers are likely to be worse off. 

While not all consumers are active members of the loyalty schemes they belong to, for a significant number of consumers, customer loyalty schemes can strongly influence their buying behaviour. This can have implications for the ability of smaller companies or new entrants without a well-established loyalty scheme to compete. 

These risks to competition could be particularly concerning given the prevalence of loyalty schemes in many concentrated markets in Australia. 

Competition issues may arise not only in the primary market in which the loyalty scheme predominantly operates (for example, domestic air travel), but may also be extended to related markets through exclusive partnerships with firms supplying complementary products (for example, domestic airlines and car rental services). 

Frequent flyer schemes have the potential to result in significant customer lock-in effects, as has occurred overseas. It appears that Qantas Frequent Flyer might have a significant impact on barriers to entry and expansion for the domestic business traveller segment. However, Virgin Australia has been successful to date in growing its Velocity loyalty scheme and market position and it is not clear that such customer lock-in effects and switching costs associated with frequent flyer schemes have resulted in major barriers to entry. In the case of supermarket loyalty schemes, while customer loyalty in this sector is currently limited, there is the potential for stronger exclusivity effects to occur in future as the major supermarkets seek to leverage their growing digital and analytical capabilities using extensive customer data. 

Coalition loyalty schemes bring together a variety of partners under their programs, which allow members to earn and redeem points with a number of different merchants across the economy. The major coalition loyalty schemes in Australia are likely to assist in maintaining current market structures, while also producing consumer benefits. 

The ACCC will consider any competitive effects of loyalty schemes on a case-by-case basis, including with respect to analysing any substantial market power a firm holds, and the height of barriers to entry in a market in competition law matters.

AI Corporations

'Self-Driving Corporations?' by John Armour and Horst Eidenmueller comments 

 What are the implications of artificial intelligence (AI) for corporate law? In this essay, we consider the trajectory of AI’s evolution, analyze the effects of its application on business practice, and investigate the impact of these developments for corporate law. Overall, we claim that the increasing use of AI in corporations implies a shift from viewing the enterprise as primarily private and facilitative, towards a more public, and regulatory, conception of the law governing corporate activity. Today’s AI is dominated by machine learning applications which assist and augment human decision-making. These raise multiple challenges for business organization, the management of which we collectively term ‘data governance’. The impact of today’s AI on corporate law is coming to be felt along two margins. First, we expect a reduction across many standard dimensions of internal agency and coordination costs. Second, the oversight challenges — and liability risks — at the top of the firm will rise significantly. Tomorrow’s AI may permit humans to be replaced even at the apex of corporate decision-making. This is likely to happen first in what we call ‘self-driving subsidiaries’ performing very limited corporate functions. Replacing humans on corporate boards by machines implies a fundamental shift in focus: from controlling internal costs to the design of appropriate strategies for controlling ‘algorithmic failure’, i.e. unlawful acts by an algorithm with potentially severe negative effects (physical or financial harm) on external third parties. We discuss corporate goal-setting, which in the medium term is likely to become the center of gravity for debate on AI and corporate law. This will only intensify as technical progress moves toward the possibility of fully self-driving corporations. We outline potential regulatory strategies for their control. The potential for regulatory competition weakens lawmakers’ ability to respond, and so even though the self-driving corporation is not yet a reality, we believe the regulatory issues deserve attention well before tomorrow’s AI becomes today’s.

Decriminalisation

'Sex offenders no more: Historical homosexual offences expungement legislation in Australia' by Allen George in (2019) Alternative Law Journal comments

 The capability to remove homosexual offences from a criminal record has finally been adopted across Australia with the introduction of expungement legislation. This article analyses the reasons for its introduction, considers the number of people affected and suggests that a pardon, similar to the Turing Law in the UK, may address the low number of applications. The passing of this legislation not only restores the offender, it also allows current legislators to address the injustice of their predecessors' actions and to demonstrate continued support for LGBTIQ communities.

George argues

 A milestone was reached for gay men across Australia by the end of 2018 as all states and territories had passed legislation allowing for the expungement of historical homosexual offences. No longer will members of LGBTIQ communities with such convictions have to live with the stigma and consequences of a criminal record for sexual activity that is legal today. It is somewhat surprising that despite decriminalisation of consensual homosexual sex within all Australian jurisdictions between 1975 and 1997, those convicted were ignored and left with a cumbersome legacy of being lawfully branded a ‘sex offender’, until recently. Gerber and O’Byrne analysed the legal basis of this imposition and noted that the usual manner of clearing a criminal record via spent conviction legislation was not available to those with a conviction categorised as a sexual offence, which included some homosexual offences. 

Parliaments often engage in creating legislative amendments or new laws to criminalise and regulate behaviour. The passing of expungement legislation (Table 1), by contrast, is an example of decriminalisation leading to the legislative redress of past laws and their negative effects. Furthermore, this legislation allows application for posthumous expungement. This ability to erase the past through application from living relatives raises the issue of granting pardons to all deceased convictees in Australia similar to that enacted by the British Parliament. The passing of expungement legislation is also part of a larger project of legal recognition and equalisation encompassing issues such as the age of consent, de-facto relationships and same-sex marriage. 

These legislative changes and the debate around them indicate an adoption of elements of restorative justice by lawmakers across Australia toward gay men and LGBTIQ communities. Restorative justice is ‘an option for doing justice after the occurrence of an offence that is primarily oriented towards repairing the individual, relational and social harm caused by that offence.’ This form of justice attempts to repair harm to the victim and allow the offender to make amends. Conceptualising these changes as restorative justice, however, raises some interesting questions: who is the victim, who is the offender and how are amends to be made? Although homosexuality was described as a victimless crime in the latter part of the 20th century, parliaments upheld the criminalisation of such acts between men. In debates on expungement, legislatures across Australia have recognised that not only were these laws unjust and out-of-step with social norms, but that former parliamentarians were the cause of such legal and social injustice. 

This article examines the legal basis of the need for expungement legislation before outlining the adoption of such laws throughout Australia. The reasons why such laws were passed are analysed, drawing on parliamentary debate across Australia, and the success of expungement schemes are considered. Finally, reasons for taking an average of 30 years since decriminalisation to introduce expungement and whether expungement and the possibility of a pardon provide justice to those convicted of an historical homosexual offence are analysed.

'Homophobia and Homonationalism: LGBTQ Law Reform in Canada' by Miriam Smith in (2019) Social and Legal Studies comments

This article explores the tensions and contradictions between the recognition of same-sex relationships and the development of legal prohibitions against discrimination on the one hand versus the ongoing symbolic and actual criminal regulation of gay sex on the other hand. I describe these tensions as they have unfolded over the last 40 years through the most recent attempts by the Liberal government of Justin Trudeau, elected in 2015, to reform the criminal law, to expunge the record of past criminal convictions for same-sex behavior, and to apologize and compensate lesbian, gay, bisexual, transgender, queer (LGBTQ) communities for past discrimination. I argue that this bifurcated pattern of public policy change and legal reform demonstrates the persistence of political homophobia alongside of homonationalist celebration of queer normativity. By considering the federal government’s long-standing failure to reform criminal laws that encapsulate formal-legal inequality of LGBTQ people, the article highlights the persistence of homophobic public policy alongside homonationalist policy discourse and genuine progress in the legal recognition of queer rights. I conclude by considering the implications of this mix for theorizing homophobia and homonationalism in law and policy.

 Smith argues

In recent years, lesbian, gay, bisexual, transgender and queer (LGBTQ) people have emerged into the limelight of politics and policy in Canada as elsewhere. Whether debates over same-sex marriage or the current Canadian Prime Minister (Justin Trudeau) marching in Pride parades, ‘gay rights’ has become an international signifier of Canadian diversity and tolerance. Yet, as this article will show, Canadian progress in the legal recognition of LGBTQ rights has been accompanied by homophobic public policy that sanctions the symbolic and actual criminalization of anal sex. This article explores the tensions and contradictions between the recognition of same-sex relationships and the development of legal prohibitions against discrimination on the one hand versus the ongoing symbolic and actual criminal regulation of gay sex on the other hand. I selectively describe these tensions as they have unfolded from the 1969 (partial) decriminalization of homosexuality through the most recent round of LGBTQ law reform by the Liberal government of Justin Trudeau, elected in 2015. I argue that this bifurcated pattern of public policy change and legal reform demonstrates the persistence of legal homophobia alongside homonationalist celebrations of queer inclusion. I then consider the implications of this analysis for contemporary theorizing about queer politics and law. 

Much discussion of contemporary LGBTQ politics in countries such as Canada emphasizes the role of homonormativity and homonationalism. In this view, advances in LGBTQ rights recognition privilege same-sex couples who are just like straights except for their sexual orientation. They are thus ‘normative’ but ‘homo’ and, hence, ‘homonormative’. Some discussions of homonormativity also emphasize the link to neoliberalism, seeing the domesticated same-sex couples as contributing to neoliberal values of responsibilization and privatization (Duggan, 2002). Discussions of homonationalism have emphasized the ways in which mainstream LGBTQ politics has linked the pursuit of rights to the celebration of national tolerance in contrast to the racialized other, especially Muslims in the wake of the war on terror (Puar, 2007). Other work has emphasized the racialized nature of mainstream LGBTQ political and legal activism in cases such as Canada’s, including the overwhelming dominance of Whites in the movement and the ways in which the movement appropriated the rhetoric of US civil rights in the pursuit of marriage equality (Lenon, 2005, 2011). In the North American context, a number of scholars have recently considered the impact of settler colonialism for the politics of queer movements, exploring the ways in which queer movements have perpetuated the legacies and ongoing practices of colonialism (Morgensen, 2010; Smith, 2010). 

In contrast, this article follows in the footsteps of recent scholarship emphasizing the political persistence of homophobia, even in what Browne and Nash (2014: 332) call ‘the places where we have won’. By considering the federal government’s long-standing failure to reform criminal laws that encapsulate formal-legal inequality of lesbians, gay men, and bisexuals, compared to straights, the article highlights the persistence of homophobic public policy alongside homonationalist policy rhetoric and genuine progress in the legal recognition of LGBTQ rights. I conclude by considering the implications of this mix for theorizing homophobia and homonationalism in law and policy. The concept of homonationalism excludes systematic consideration of legal homophobia and yet cases such as Canada show how both homonationalism and legally encoded homophobia can coexist. This suggests that more theoretical and empirical attention needs to be paid to the enduring role of legal homophobia even in countries such as Canada that are thought to be exemplars of the unalloyed recognition of LGBTQ rights.

Names and Pseudolegal Claims

'You Name it: On the Cross-Border Regulation of Names' American Journal of Comparative Law (forthcoming) by Sharon Shakargy comments 

 Is your name “yours”? Are you free to choose a name for yourself? Does a name withstand border-crossing and even acquisition of new citizenships? In the common law world, the undoubted answer is yes. However, in civil law, this answer is not so clear. While the global tendency over the last few decades has been towards relaxing the norms governing names, old traditions die hard, and in some cases now re-emerge in other parts of the world. In an ever more globalized world, given widespread immigration, refugees, and people with dual- (or even multi-) citizenships, the different national attitudes towards names and the lack of proper cross-border regulation of names is becoming a relevant and pressing question. This paper maps out and conceptualizes the challenge of names by demonstrating the different approaches towards names and suggesting possible cross-border regulation (i.e., choice-of-law rules) that may address this issue for the benefit of the individuals and countries involved.

In Warren Ronald Wichman v Pepper Finance Corporation Limited [2019] NSWCA 195 Meagher JA states ... 

On 5 August 2019 Mr Wichman filed a second notice of motion in response to a further notice from the sheriff’s office advising that it proposed to evict the occupants of the property after 2pm today, 8 August 2019. As is mentioned above, that motion challenged the decision of Registrar Bradford and sought a stay of the writ of possession. (As to the power of a Judge of the Court to set aside or vary a judgment or order of a registrar, see Supreme Court Act 1970 (NSW) s 121(3)). Mr Wichman made a further affidavit in support of that application on 5 August 2019. 

The argument before Rothman J is sufficiently recorded in his Honour’s final reasons: Pepper Finance Corporation Limited v Wichman [2019] NSWSC 1009. At [12] he records:

It is unnecessary to go to the merits of the application that was originally dealt with by the Registrar. Essentially, as I understand it, from the submission of the applicant, the applicant argues that the Court can only exercise jurisdiction en banc, and there has to be a panel of judges that exercises jurisdiction. 

His Honour rejected that argument which was the only argument put to his Honour as to why the Registrar erred in rejecting his earlier motion, and accordingly dismissed the motion of 5 August, 2019. 

In support of his motion in this Court, Mr Wichman has read or relied on the three affidavits filed in the proceedings below, as well as his short affidavit filed in this Court on 7 August 2019 which states: 

1. I am the deponent. Let it be known, that I was not given Due Process and the judge was Bias. 

2. The matter could not be heard. He would not confirm a sworn Oath, or a Bond.

It is convenient at this point to record some matters concerning the content of Mr Wichman’s earlier affidavits. Those affidavits make a number of assertions as to the application of Australian common law and statutory law to the deponent in language which is strikingly similar to that described in the judgment of the Court of Queen’s Bench of Alberta, Meads v Meads, 2012 ABQB 571, as “Organised Pseudolegal Commercial Argument”: see also K Sheridan v Colin Biggers & Paisley [2019] NSWSC 528 at [10] (Black J). 

The assertions made in those affidavits include:

That Mr Wichman is not bound by any law, statutory or otherwise, unless he has personally consented to it. Paragraphs 3 and 4 of his affidavit of 5 August 2019 say:

3. Be it known, as always, One [Mr Wichman] stands in Common Law as a flesh and blood man standing on the land, reserving both One’s Common Law of England rights and Unalienable rights. One reserves the rights of Due Process and Equal Protection of the Law, the right by any claim to heard by jury in a court of record according to the Common Law of England and the Commonwealth of Australia Constitution Act (U.K.) 1901. 

4. Be it known, One is also free from standing under any statutes, codes, ordinances, or rules conflicting with the Common Law of England and the Commonwealth of Australia Constitution Act (U.K.) 1901. and those to which One does not consent to. 

That Mr Wichman does not recognise the authority or jurisdiction or judgment of a registrar or single judge of the Supreme Court, and also, it would seem, of a judgment of any Court applying any law to which he has not consented. Paragraph 5 of his affidavit of 29 May 2019 and para 6 of his affidavit of 5 August 2019 say, respectively:

5. Be it known, One does not understand nor does One recognise the authority, jurisdiction or judgement made by a single judge. One man cannot stand in judgement over another. One does not understand nor does One recognise a ‘default judgement’. One understands that both violate natural Unalienable Rights, and the Commonwealth of Australia Constitution Act (UK) 1900, which is the foundational legal document for British colony Law in Australia. “The trial on indictment of any offence against any law of the Commonwealth shall be by jury…” Ref: Commonwealth of Australia Constitution Act (UK) 1900 Sect. 80. “No man can legally be bound by judgment given behind his back and without opportunity of being heard.” Ref: Commonwealth of Australia Constitution Act (UK) 1901 Quick & Garran P.614 Sect. 206. 

6. Be it known, to all governments, government and public officials, courts and other parties, that One is a natural, free born, free man, self-governing, without subjects. One is neither subject to any entity anywhere, nor is any entity subject to One.

Schroedingers Robot

'Schrödinger’s Robot: Privacy in Uncertain States' by the late great  Ian Kerr in (2019) 20(1) Theoretical inquiries 123 comments

 Can robots or AIs operating independently of human intervention or oversight diminish our privacy? There are two equal and opposite reactions to this issue. On the robot side, machines are starting to outperform human experts in an increasing array of narrow tasks, including driving, surgery, and medical diagnostics. This is fueling a growing optimism that robots and AIs will exceed humans more generally and spectacularly; some think, to the point where we will have to consider their moral and legal status. On the privacy side, one sees the very opposite: robots and AIs are, in a legal sense, nothing. The received view is that since robots and AIs are neither sentient nor capable of human-level cognition, they are of no consequence to privacy law. This article argues that robots and AIs operating independently of human intervention can and, in some cases, already do diminish our privacy. Epistemic privacy offers a useful analytic framework for understanding the kind of cognizance that gives rise to diminished privacy. Because machines can actuate on the basis of the beliefs they form in ways that affect people’s life chances and opportunities, I argue that they demonstrate the kind of cognizance that definitively implicates privacy. Consequently, I conclude that legal theory and doctrine will have to expand their understanding of privacy relationships to include robots and AIs that meet these epistemic conditions. An increasing number of machines possess epistemic qualities that force us to rethink our understanding of privacy relationships with robots and AIs. 

 Kerr argues

This Article responds to two equal and opposite reactions tugging at the intersection of robots and privacy. 

On the robot side, too many technologists, government decision-makers, and captains of industry have become preoccupied with what they see as an inevitable shift from today’s artificial narrow intelligence (ANI) to tomorrow’s artificial general intelligence (AGI). The fact that machines are starting to outperform human experts in an increasing array of narrow tasks fuels a growing optimism that AIs will exceed humans more generally and spectacularly. Seduced by the rapture of singularity and superintelligence, many credible (and incredible) experts and governmental bodies are pressing us to look beyond the social implications of today’s AIs and robots. Instead of the focus being squarely on how human rights like equality and privacy are affected by rapid technological advance, undue attention is being paid to fantastical ideas. These include an all-out robot apocalypse and — less traumatic but still highly problematic — granting legal status to robots. Many policymakers seem fascinated by the idea of robot rights, or other protections and entitlements to incentivize and facilitate an increasing population of robots and AIs. 

On the privacy side, one sees the opposite: on their own, robots and AIs are nothing. According to the received view, there can be no loss of privacy without human sentience or cognition. Since robots and AIs are neither sentient nor capable of human-level cognition, they are seen to be of no consequence to privacy law. Robots and AIs can collect, use, disclose, make decisions about and act upon exabytes of personal information but, from a doctrinal perspective, none of that matters, not one single bit, as long as no human has laid eyes on the data. Without invoking the Copenhagen Interpretation, this Article offers a refutation of dead-or-alive, all-or-nothing accounts of robots and privacy. It is my contention that current robots and AIs can diminish our privacy without sentience, consciousness or cognition, and without human intervention, oversight, knowledge, or awareness. Building on an epistemic theory of privacy, I demonstrate that today’s robots and AIs are capable of truth-promoting belief formation processes, thereby allowing them to form reliable beliefs and observational knowledge about people without human intervention, oversight, knowledge, or awareness. Because machines can actuate on the basis of the beliefs they form, they can affect people’s life chances and opportunities in ways that definitively implicate privacy. 

To be clear, the rather modest claim I am advancing in this short Article is that non-sentient robots and AIs can diminish our privacy. The Article is meant to say very little about how people perceive privacy violations by robots. It says even less about the normative elements of human-robot privacy relationships and the violations, infringements, wrongs, or harms that could be occasioned or avoided by robots. Although my argument is a necessary precondition for such discussions, my focus here is limited to the epistemological conditions giving rise to privacy, and my narrow claim is that some robots and AIs are already capable of epistemological states that can reduce our privacy. A proper account of the deeper normative elements would require a full-blown relational theory of robots, which this Article seeks to encourage, but does not strive to accomplish. 

The Article proceeds as follows. In Part I, I argue that privacy is relational and briefly examine several key theories in order to establish privacy’s relational core, namely: a person loses privacy just in case some “other” gains some form of epistemic access to her. Part II offers a closer examination of the “other”11 in a privacy relationship — historically conceived as the person who comes to know personal facts about a data subject. I demonstrate how robots and AIs are replacing the human “other” and that the delegation of informational transactions to robots and AIs therefore puts the traditional privacy relationship in an uncertain state. The uncertainty rests on whether an AI has the epistemic qualities necessary to diminish privacy in cases where there is no human intervention, oversight, knowledge, or awareness. Part III responds to the doctrinal view that individuals whose information is exposed only to automated systems incur no cognizable loss of privacy. To do so, I borrow from epistemic privacy — a theory that understands a subject’s state of privacy as a function of another’s state of cognizance regarding the subject’s personal facts. The theory of epistemic privacy offers a useful analytic framework for understanding the kind of cognizance that implicates privacy. In Part IV, I apply the theory of epistemic privacy in order to determine whether artificial cognizers are truly ignorant in the way that legal doctrine suggests. To the contrary, I conclude that artificial cognizers can be said to form truth-promoting beliefs that are justified. In Part V, I examine how today’s navigational robots form beliefs and argue that the observational knowledge they acquire through reliable belief formation processes easily meets the epistemic conditions necessary for diminished privacy. I suggest that, because the beliefs generated by artificial cognizers can also be programmed to actuate automatically, not only can they diminish a person’s state of privacy, they also have the potential to violate it. Having shown that today’s robots are by no means ignorant, I propose in Part VI the need to develop a theory of relational privacy that counts robots and AIs as integral to the configuration of what Julie Cohen has called the “networked self,” not to mention what I am calling the “networked other.” In Part VII, I conclude with the observation that when we view epistemic privacy’s notion of “a duty of ignorance” through a relational lens, we are led toward a useful heuristic for our increasingly complex web of human-robot relationships: a presumption of ignorance. 

This Article is meant to demonstrate how robots and AIs disturb the presumption of ignorance in epistemologically significant ways, undermining the presumption’s core aim of providing fair and equal treatment to all by setting boundaries around the kinds of assumptions and beliefs that can and cannot be made about people. Consequently, it is my contention that legal theory and doctrine will have to expand their understandings of privacy relationships to include robots and AIs that meet these epistemic conditions. An increasing number of machines possess epistemic qualities that force us to rethink our understanding of privacy relationships.

Entitlement and Cheating

'My grade, my right: linking academic entitlement to academic performance' by Bianca Bert, Denise Andrzejewski, Lynda Hyland, Anita Shrivastava, Douglas Russell and Jakob Pietschnig in (2019) Social Psychology of Education 1-19 argues

The identification of determinants and correlates of academic entitlement is of particular interest for researchers and (academic) tutors alike. Whilst personality traits have been linked to academic entitlement in the past, the relative importance of familial influence remains unclear. Hence, to address this deficit, this study utilizes a sample of business and psychology undergraduates (N = 170) in the United Arab Emirates. Additionally, the impact of academic entitlement on students’ misestimation of coursework grades was assessed in a subsample of psychology undergraduates (N = 92). Multiple regression analyses revealed honesty–humility as the strongest predictor of academic entitlement, indicating lower entitlement of more honest students. In contrast, familial influences were unrelated to academic entitlement. Interestingly, higher entitled expectations were associated with larger overestimation of grades. Our findings indicate honesty–humility as an important driver of academic entitlement, whilst entitled expectations appear to be associated with misperceptions of students own academic performance. 

The authors comment

Higher education (HE) has experienced a notable landscape transformation over recent decades including changes in funding that force universities to compensate the waning capital through higher tuition fees. This, in turn, affects various characteristics of students entering tertiary education. The steady decline in HE funding, particularly in the UK (e.g., Greenaway and Haynes 2003), the US (e.g., Mitchell et al. 2016), or Australia (e.g., Kniest 2018), has resulted in staff redundancies in numerous universities and the opening of overseas branch campuses (Varghese 2013). Furthermore, the compensatory inflation of tuition fees increases exposure to commercial demands such as customer satisfaction, efficiency, and competitiveness (Bunze 2007; Lesnik-Oberstein 2015). This new direction in education inevitably pressures academic staff to develop ‘easier’ courses in the interest of better student feedback and higher satisfaction rates, which jeopardizes academic standards at large (Bunce et al. 2017; Emery et al. 2001). This encompasses a shift of powers between HE institutions and students—with the first increasingly resembling service-providers and the latter displaying diverse motivations and skills (Altbach et al. 2009; Biggs and Tang 2011) as well as consumeristic thinking and behaviours (Cain et al. 2012; Gokcen 2014; Tomlinson 2014). Intellectual engagement (Williams 2013) and active educational involvement (Finney and Finney 2010; Tomlinson 2014) are at risk in the presence of such consumer attitudes. 

The student-as-consumer (SAC) approach has been found to create feelings of entitlement among university students (Delucchi and Korgen 2002; Finney and Finney 2010). With increasing participation in a changing higher education landscape, it seems important to gain a better understanding of the influencing factors and effects of academic entitlement in tertiary students. It has been suggested that academic entitlement (AE) influences students’ attitudes towards academic achievements. Students who report high levels of academic entitlement consider academic success their right, without taking responsibility for it (Boswell 2012; Chowning and Campbell 2009). This often results in various maladaptive behaviors that considerably impact academic outcomes. For example, students might voice dissatisfaction with their grades, using the argument that they pay to perform well (Bellah 1999), or they may consider their lecturers responsible for their poor results (Twenge and Campbell 2009). It has also been suggested that uncivil and disruptive behaviors (Kopp and Finney 2013; Taylor et al. 2015), dissent towards instructors (Frisby et al. 2015), and impaired learning and poorer student performance (Barton and Hirsch 2016) are other corollaries of entitled and consumerist attitudes in education. However, much remains to be understood in terms of the correlates and consequences associated with academic entitlement. Understanding these factors related to AE will consequently allow for the development of strategies to support students in taking more ownership over their academic progress which, in turn, can potentially correct the decline in intellectual engagement, and foster active learning.

In discussion they comment

The aim of this study was to examine associations between personality traits, family influence, and academic entitlement. Furthermore, we investigated the link between students’ academic entitlement and the misestimation of their grades. It should be noted, that due to our correlational design, causality cannot be inferred from our results. Only personality traits showed a significant influence on both entitled expectation and externalized responsibility. Our study revealed significant associations of family influence variables with academic entitlement which is consistent with past studies that emphasised the importance of parenting and career expectations when it comes to academic entitlement (e.g., Greenberger et al. 2008). However, these associations are not present when controlling for personality traits. Therefore, personality traits seem to be more important drivers of academic entitlement than family influence. These findings are not necessarily inconsistent with developmental perspectives, because parents are bound to influence the development of certain personality traits (Anaya and Pérez-Edgar 2019). There has been little research conducted in regard to direct associations between parenting and the Big 5, however, past research has identified direct links between parenting styles and children’s temperament (Kitamura et al. 2009) and older adolescents’ personality, specifically agreeableness, openness to experiences and neuroticism (Weiss and Schwarz 1996). However, more research comparatively has been done on the effect of parenting style on academic traits, including self-regulation (Abar et al. 2009), grit (Howard et al. 2019) and academic engagement (Waterman and Lefkowitz 2017). To the best of our knowledge, there is no previous research using the HEXACO framework. Hence, further research is warranted to look at if, and how, the personality traits assessed by the HEXACO can influence the relation between parenting and academic entitlement. 

Out of the HEXACO personality domains, only honesty–humility negatively predicted both entitled expectations and externalized responsibility in our study. This may mean that more honest individuals feel greater responsibility for their own education. Students possibly create an internal representation of their efforts which could reduce their entitled expectations. In contrast to previous findings (Bonaccio et al. 2016; Chowning and Campbell 2009), we did not observe meaningful relationships between agreeableness and academic entitlement. Importantly, both agreeableness and honesty–humility are considered to reflect altruistic traits, though they seem to represent distinct constructs. For example, individuals that are high in honesty–humility were less likely to exploit others, whereas agreeableness does not preclude willingness to work with exploitative individuals (Ashton et al. 2014). Consequently, it seems likely that honesty–humility is more important in relation to less entitled attitudes in academic settings. In a similar vein, honesty–humility has been shown to be more strongly associated with narcissistic entitlement than agreeableness (e.g., Gaughan et al. 2012; Lee and Ashton 2005). These findings are in line with our observations in relation to academic entitlement. 

Beyond honesty–humility and agreeableness, other personality traits significantly contributed to the explained variance in academic entitlement, although effect sizes for these were smaller and the patterns were less consistent. Extraversion negatively predicted externalized responsibility but was not associated with entitled expectations. These results are consistent with findings of Chowning and Campbell (2009) who observed significant associations between extraversion and entitlement, but contrast with others who did not identify such a link (Ackerman et al. 2010; Pryor et al. 2008). As per the HEXACO definition of extraversion, people scoring high on this trait possess more social self-esteem, are more sociable and are livelier (Ashton and Lee 2009), leading to increased social skills and social responsibility. It has been established that enhanced social responsibility leads to more positive learning experiences in school settings and to more responsibility towards one’s own academic achievements (Wentzel 1991). Hence, increased extraversion in a Higher Education setting, with a tendency to heightened social skills, could result in less externalized responsibility that would be otherwise placed on instructors. Furthermore, extraversion has been linked to prosocial behavior and value motives which could also explain these findings (Carlo et al. 2005). The positive significant association of emotionality with entitled expectations is in line with previous research on personality and narcissistic entitlement (Ackerman et al. 2010). Therefore, the current study’s findings suggest that emotionally less stable students may be characterized by higher academic entitlement, which could be a result of greater anxiety and dependence on faculty. Students might shift the responsibility onto faculty as a means to decrease anxiety related to their own failures (i.e., in the sense of external attribution). 

When considering the implications of high academic entitlement for estimated grade outcomes, only entitled expectations seemed to have an influence on overestimations of exam/essay (but not lab report) grades, whereas externalized responsibility did not. Even when controlling for personality traits, this influence remained robust, indicating a substantial influence of expectations on self-perceived academic performance. Because essays and exams have fewer guidelines than lab reports, this might cause more uncertainty in terms of the prospective outcome for the students. Therefore, to reduce uncertainty, students might blame lower than expected grade outcomes on the faculty member, or other external causes. Particularly in a private university setting, where students pay for their education, it might be more intuitive for students to hold university staff responsible for their failures. This could be interpreted as a coping mechanism to protect students’ self-esteem, which may be a function of external attribution mechanisms (Patel et al. 2015). Considering the above findings, it appears that academic entitlement is, to some extent, driven by certain personality traits. Since personality traits are comparatively stable across the lifespan, some entitled attitudes might persist, even if interventions that are tailored to reduce academic entitlement are introduced. However, based on the observation that honesty–humility is the strongest predictor of academic entitlement, activities supporting kind, modest, and generous behaviors, such as volunteer work, could possibly reduce entitlement. This may be a worthwhile avenue of investigation in future research. Some implications for faculty should be considered in this vein. Our results indicate that academic entitlement might not manifest itself in an identical manner across different assignments. Assignments which increase feelings of uncertainty due to a relative lack of structure might warrant students to rely on entitled attitudes to decrease anxiety. Hence, academic entitlement seems to also possess situational components. Communicating realistic expectations towards the work that needs to be involved in different types of assignments might decrease feelings of uncertainty in students.

Fake Qualifications

In Di Paolo v The Queen [2019] VSC 194 the Victorian Supreme Court has rejected the appeal by the high profile fake doctor, who has previously been noted here and here.

The Court  states

 The applicant, Raffaele Di Paolo, has applied to this Court for leave to appeal against his convictions and sentences, which are set out in the table below. The convictions and sentences arise from charges spread over three separate indictments, identified as Indictments A, B1 and C. 

In the broadest of terms, these charges arise from the activities of the applicant over a 10-year period. Before, during and after that period, the applicant falsely represented that he was a qualified medical practitioner and offered ‘fertility treatments’ to people who came to him as ‘patients’. The allegations were that the applicant obtained money by deceiving clients as to his medical qualifications and carried out numerous intimate examinations, which the clients would not have permitted if they had known he was not medically qualified. 

On 21 February 2018 in the County Court, following pre-trial argument and rulings, the applicant pleaded guilty to five charges of obtaining property by deception in Indictment A but not guilty to the other 17 charges, which included charges of procuring sexual penetration by fraud, common assault and indecent assault. A jury later found the applicant guilty of 15 of those 17 remaining charges, and not guilty on Charges 13 and 14. Those verdicts were delivered on 28 March 2018. 

On 5 April 2018, the applicant pleaded guilty to all charges on Indictments B1 (15 charges) and C (16 charges). 

The applicant was therefore to be sentenced on a total of 51 charges. The applicant was sentenced following a plea hearing on 5 and 6 July 2018 in accordance with the following table:  ... 

In this Court, the applicant has sought leave to appeal against the convictions on which the jury delivered verdicts on the following two grounds: 

Ground 1 The trial judge erred in admitting ‘business practice’ evidence, after pleas of guilty were entered to the charges of obtaining property by deception, as admissible on the remaining charges. 

Ground 2 The verdicts of procuring sexual penetration by fraud are unsafe and unsatisfactory. 

In relation to the application for leave to appeal against sentence, the applicant relies on the following four grounds:

Ground 1 The sentencing judge erred in rejecting Verdins principles. 

Ground 2 The individual sentences, degree of cumulation, total effective sentence and non-parole period are manifestly excessive. 

Ground 3 The sentencing judge erred by doubly punishing the applicant. 

Ground 4 Registration as a sex offender pursuant to the Sex Offender Registration Act 2004 was not warranted and should not have been ordered. 

For the reasons that follow, we have concluded that the application for leave to appeal against both conviction and sentence should be refused.

The Court states

The applicant was born in Italy on 10 August 1956 and emigrated to Australia with his parents when he was nine months old. He completed his secondary education in Melbourne and then commenced a science degree at Monash University. In 1977, he deferred that study to travel to Italy. Police enquiries revealed that the applicant did not complete any undergraduate degree at Monash University. 

In Italy, the applicant initially studied at the University of Chieti and then transferred to the University of Rome at the end of 1978. None of that study led to the conferral of a degree that qualified him as a medical practitioner in Italy or Australia — a fact that he accepted for the trial in the County Court. 

Upon returning to Australia in 2006, the applicant falsely purported to be a legally-qualified medical practitioner and fertility specialist. He conducted a practice in that field initially from his home in Bay Street, Brighton and later at a suite of offices in St Kilda Road, Melbourne. 

Generally, people were referred to the applicant by word of mouth or by other practitioners in allied fields, such as chiropractors, natural therapists and specialists. In each of the cases that became the subject of charges, his clients were couples who experienced difficulties with conception and had already been through ‘traditional’ medical processes, such as in vitro fertilisation (‘IVF’) treatment. It was alleged by the prosecution — and ultimately accepted by the applicant through his pleas — that these clients paid substantial sums of money to him on the basis that he was practicing a ‘more natural and successful’ form of IVF treatment. 

As the prosecution put its case and as we have already briefly described, the applicant purported to offer various fertility ‘treatments’ to his clients, which ranged from internal and external ultrasounds, administering homeopathic medications, endometrial biopsies, and the extraction of sperm from the testes. 

The offences committed by the applicant occurred between January 2005 and May 2015. There were 30 complainants in total. The division of the charges into three indictments was as follows. 

Indictment A 

The charges on this indictment were alleged to have occurred between January 2005 and August 2010. Broadly summarised, the charges of obtaining property by deception (Charges 1, 12, 15, 18 and 21) related to the applicant taking payment in exchange for fertility services where the complainants believed that the services were provided by a properly-qualified and/or registered medical practitioner. The amount appropriated over this period was alleged to have been $70,750. 

The charges of procuring sexual penetration by fraud involved the applicant inserting a pipette (Charge 2), an ultrasound transducer (Charges 13, 16, 17, 19 and 22) and a gloved hand (Charge 14) into the vagina of the complainants, in circumstances where they believed he was a properly qualified and/or registered medical practitioner. 

The charges of common assault relate to one male complainant. On his first, second and fourth cycles of intracytoplasmic sperm injections (‘ICSI’), the applicant inserted a needle into the complainant’s testicle to extract sperm (Charges 3, 4, and 11). On the third ICSI cycle, the applicant performed the procedure six times (Charges 5 to 10). 

The charge of indecent assault occurred when the applicant conducted a breast examination with un-gloved hands upon a complainant (Charge 20). 

The application for leave to appeal against conviction is only concerned with this indictment. The following two indictments arise for consideration only in the application for leave to appeal against sentence. 

Indictment B1 

The offending covered by this indictment occurred between 2006 and 2014. The charges of obtaining property by deception (Charges, 1, 3, 5, 7, 10, 12 and 14) relate to seven complainants who paid the applicant for services in similar circumstances to those outlined above — that is, payment in return for fertility services. 

The charges of indecent assault (Charges 2 and 9) occurred when the applicant performed a physical examination of two complainants’ testicles and/or penis. Charge 11, indecent assault, occurred when the applicant performed a physical examination of a complainant’s breasts. 

The charge of common assault (Charge 8) occurred when the applicant conducted an endometrial biopsy and inserted a needle into the complainant’s uterus. 

Charge 15, common assault, occurred when the applicant administered a homeopathic treatment by intravenous drip. 

Charges 4, 6 and 13, common assault, occurred when the applicant injected unknown substances, which he claimed were homeopathic medications, into the abdomens of three complainants. 

Indictment C 

The offending covered by this indictment occurred between 2004 and 2015. All of the charges are obtaining property by deception, save for Charges 5 and 15 which are charges of attempting to obtain property by deception. The charges relate to 15 complainants who paid the applicant for services in similar circumstances to those outlined above. 

Conviction - Grounds of appeal 

Ground 1 – Admissibility of ‘business practice’ evidence 

This ground appears to assert that, should it succeed, all convictions resulting from the jury’s verdicts on Indictment A ought to be set aside. 

Procedural history 

On 29 November 2017, the prosecution caused tendency notices to be served on the applicant, which indicated the prosecution sought to prove that the applicant had a tendency to ‘act in a particular way, namely to falsely represent that he was, or had been, a properly qualified and/or registered medical practitioner and/or gynaecologist and/or IVF specialist either in Melbourne or in Italy to … patients, medical practitioners and allied health professionals’. They also sought to prove he had a tendency to ‘falsely represent his professional qualifications and experience in order to have patients consent to procedures they believed were medically necessary and to pay for his services’. 

On that same date, the respondent also served on the applicant’s solicitors a coincidence notice that they intended to prove that the applicant had a particular state of mind or did particular acts, including making false representations, orally and in writing, that he was a doctor with IVF experience, that he took blood samples and that he administered injections into clients’ abdomens. 

It was made clear on behalf of the applicant that the admissibility of the tendency and coincidence evidence would be in contention for the trial. 

Shortly after the trial’s commencement, the trial judge advised the parties by email of three particular authorities in relation to the topic of ‘business practice’ evidence and whether such evidence could be admitted in proof of a fact in issue, instead of tendency evidence. Those cases, which became the subject of argument, were: ACCC v Four Wheel Drive Systems Pty Ltd [2003] FCA 880; Jacara Pty Ltd v Perpetual Trustees (WA) Ltd (2000) 106 FCR 51; and Higgins (a Pseudonym) v The Queen [2016] VSCA 47. 

It is sufficient for the purposes of this application to note that those cases demonstrate that separate, similar representations or acts can establish a business model or ‘business practice’. A ‘business practice’ bears directly on a fact in issue, such as the state of mind, motive or intent, rather than establishing a mere tendency to act a certain way. 

After further discussion, the prosecution abandoned its reliance on the proposed tendency and coincidence evidence, and sought to have the same subject matter admitted as ‘business practice’ evidence. The applicant objected to this course, and the matter was debated before the judge. 

On 15 February 2018, his Honour ruled that the evidence from individuals who dealt with the accused separately could be used cumulatively to establish that he had a ‘business system’ in place and the nature of that system. He concluded that the evidence was admissible in proof of the fraud element for the charges of obtaining property by deception (‘deception charges’) and procuring sexual penetration by fraud (‘penetrative charges’). The evidence was also circumstantial evidence going to his state of mind and motive as well as providing context for the complainants’ evidence. 

On 21 February 2018, the applicant indicated that he proposed to plead guilty to the deception charges in Indictment A and, consequently, the applicant requested that the relevance of the ‘business practice’ evidence be revisited in relation to the remaining charges. 

It was submitted on behalf of the applicant that the allegation that he represented himself as a medical practitioner would no longer be contested. It was put that the guilty pleas would acknowledge the fraud in relation to the penetrative charges as well as the common assault and indecent assault (‘assault charges’). Consequently, the only issue that remained for the jury’s consideration was whether the acts in those charges were, in fact, committed as the applicant denied that any such examinations or procedures actually occurred at all.

StickyTape and Cybersecurity

A traditional 'chewing gum and baling twine' (or in Australia the 'stickytape, strong and a dash of prayer') approach will get us through? The provokingly contrarian 'Cybersecurity Is Not Very Important' by railway bubble historian Andrew Odlyzko in (2019) Ubiquity comments

It is time to acknowledge the wisdom of the “bean counters.” For ages, multitudes of observers, including this author, have been complaining about those disdained accountants and business managers. They have been blamed for placing excessive emphasis on short-term budget constraints, treating cybersecurity as unimportant, and downplaying the risks of disaster. With the benefit of what are now several decades of experience, we have to admit those bean counters have been right. The problems have simply not been all that serious. Further, if we step back and take a sober look, it becomes clear those problems are still not all that serious. All along, the constant refrain has been that we need to take security seriously, and engineer our systems from the ground up to be truly secure. The recent program of recommended moves [1] opens with a quote from the famous 1970 “Ware Report” that called for such steps. This demand has been growing in stridency, and has been increasingly echoed by higher levels of management and of political leadership. Yet in practice over the last few decades we have seen just a gradual increase in resources devoted to cybersecurity. Action has been dominated by minor patches. No fundamental reengineering has taken place. 

This essay argues this “muddle through” approach was not as foolish as is usually claimed, and will continue to be the way we operate. Cyberinfrastructure is becoming more important. Hence intensifying efforts to keep it sufficiently secure to let the world function is justified. But this process can continue to be gradual. There is no need to panic or make drastic changes, as the threats are manageable, and not much different from those that we cope with in the physical realm. 

This essay reviews, from a very high level, the main factors that have allowed the world to thrive in spite of the clear lack of solid cybersecurity. The main conclusion is that, through incremental steps, we have in effect learned to adopt techniques from the physical world to compensate for the deficiencies of cyberspace. This conclusion is diametrically opposed to the heated rhetoric we observe in popular media and to the unanimous opinions of the technical and professional literature. No claim is made that this process was optimal, just that it was “good enough.” Further, if we consider the threats we face, we are likely to be able to continue operating in this way. But if we look at the situation realistically, and plan accordingly, we might:

• enjoy greater peace of mind

• produce better resource allocations

The analysis of this essay does lead to numerous contrarian ideas. In particular, many features of modern technologies such as “spaghetti code” or “security through obscurity,” are almost universally denigrated, as they are substantial contributors to cyber insecurity. But while this is true, they are also important contributors to the imperfect but adequate levels of cybersecurity that we depend on. Although a widely cited mantra is that “complexity is the enemy of security,” just the opposite is true in the world we live in, where perfect security is impossible. Complexity is an essential element of the (imperfect) security we enjoy, as will be explained in more detail later. Hence one way to improve our security is to emphasize “spaghetti code” and “security through obscurity” explicitly, and implement them in systematic and purposeful ways. In general, we should adopt the Dr. Strangelove approach, which is to stop worrying and learn to love the bomb. 

In other words, not just accept that our systems will be insecure. Recognize that insecurity often arises in systematic ways, and some of those ways can be turned into defensive mechanisms. We do have many incremental ways to compensate, and we have to learn how to systematically deploy them, so as to live and prosper anyway. The key point is that, in cyberspace as well as in physical space, security is not the paramount goal by itself. Some degree of security is needed, but it is just a tool for achieving other social and economic goals. This essay is a substantial revision and expansion of the author’s earlier piece, which was an extended abstract of the WiSec’10 keynote, and also builds on the author’s other papers, such as [3]. However, no originality is claimed. While this piece is likely to strike many readers as very contrarian, many of the arguments made here can also be found elsewhere, for example in [4], and are not inconsistent with many of the recommendations of mainstream reports [1].

Historically, for many observers a serious reassessment of the traditional search for absolute security was provoked by Dan Geer’s 1998 post [5]. However, awareness of general risk issues, and growing perception that they were key, can be traced much further back, to various research efforts in the 1980s, and the founding of Peter Neumann’s RISKS Digest in 1985. No attempt is made here to trace this evolution of attitudes toward security. That is a nice large subject that is left for future historians to deal with. This essay considers only the current situation and likely evolution in the near future.