Heirs and Land Acquisition

"Heir Hunting"by David Horton and Reid K Weisbord in (2021) 169 University of Pennsylvania Law Review comments

For more than 150 years, companies called “heir hunters” have operated in the shadows of the court system. Heir hunters monitor probate filings to identify intestate decedents who have missing or unknown relatives. They then perform genealogical research, locate the decedent’s kin, and offer to inform them about their inheritance rights in exchange for a share of the property. States are sharply divided about whether to enforce contracts between heir hunters and heirs. This discord stems from the fact that we know virtually nothing about heir hunting. 

This Article illuminates this mysterious corner of succession law by reporting the results of the first empirical study of heir hunting. Its centerpiece is a hand-collected dataset of 1,349 recent probate matters from San Francisco County, California. Because a unique disclosure norm in California effectively requires heir hunters to file their contracts in the record, the Article is able to analyze a rainbow of issues that would normally be private, such as the scope of the industry, how heir hunters operate, and the context, content, and timing of their agreements.

The Article reaches three main conclusions. First, heir hunting is a booming business. Indeed, the Article unearths 219 agreements between heir hunters and heirs from twenty-seven American states and eleven foreign countries. Second, heir hunting can be socially valuable. Heir hunters sometimes locate long-lost relatives after everyone else has failed. Third, heir hunting is also problematic. For one, the Article’s multivariate regression analysis reveals that cases with heir hunters are especially likely to devolve into litigation. In addition, heir hunters usually pay for the heir’s attorney, thus creating a stark conflict of interest. Finally, heir hunters charge exorbitant fees and routinely contact heirs before the administrator has even tried to locate them. Using these insights, the Article critiques existing approaches to heir hunting and suggests reforms that would enable the legal system to harness the practice’s benefits while limiting its costs.

In Australia the Department of Finance is undertaking a review of the Lands Acquisition Act 1989 (Cth) for recommendations regarding legislative, policy and administrative reforms to the LAA. 

 Changes to the legislation will not be retrospective. Any acquisition processes that commence before legislative changes occur will continue to fall under the existing LAA provisions to ‘provide certainty for claimants, acquiring authorities and other persons involved in an acquisition process’. The Review will be ‘guided by the principles of equity and fairness; timeliness; transparency; and value for money’. 

 The discussion paper for the Review states 

 It is now 30 years since the commencement of the Lands Acquisition Act 1989 (the LAA), the key legislation used by the Commonwealth to acquire and dispose of interests in land. Over time, complex land acquisition processes involving compensation payments to land holders have become more difficult to finalise. The Government has therefore asked for a review of the LAA to look at how it could be improved to best support the Commonwealth and other interest holders into the future. 

Terms of Reference for the Review are

The Government is undertaking a review of the LAA to ensure it: 

a. reflects community expectations around public sector responsiveness and timeliness; 

b. minimises delay and uncertainty in finalising compensation claims with affected parties; and 

c. minimises administrative costs and provides value for money. 

The Review will consider the broad scope of operations and functions under the LAA, including administrative requirements. In doing so, it will consider matters such as, but not limited to: how the LAA can best support acquisition and disposal of land by the Commonwealth for public purposes in a way that is fair and efficient to all parties; whether the LAA legislation and associated guidance can be simplified to make it easier for all parties to understand and apply; and how best to balance the main objectives of the Act with modern public administrative and legal principles. 

The purpose of the LAA is to provide a mechanism for the Commonwealth to acquire land for essential public infrastructure (e.g. roads, Defence facilities and airports), while respecting the rights of interest holders, such as those whose land is being acquired. The LAA sits within the context of Section 51(xxxi) of the Australian Constitution, that states the Commonwealth can make laws with respect to ‘the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has the power to make laws’. 

The LAA provides the Commonwealth with a legislative framework for its property transactions, including to ensure acquisitions occur on just terms. 

The Act also regulates other Commonwealth dealings in land interests including:

a. disposals of land 

b. temporary entry onto land 

c. land situated overseas (e.g. Australian embassies), and 

d. mining on Commonwealth land.

Unlike acquisitions, these are not governed by section 51(xxxi) of the Constitution. 

The Public Governance, Performance and Accountability Act 2013 (Cth) includes rules governing how Commonwealth officials are to use public resources, including those relevant to the acquisition or management of land as a public resource. 

Unless exemptions apply, all Commonwealth agencies that acquire land are subject to the LAA. These ‘acquiring authorities’ include non-corporate and corporate Commonwealth entities. Some corporate Commonwealth entities are alternatively able to deal with land (by agreement, but not by compulsory acquisition) through their own enabling legislation, which gives the entity the ability to acquire and dispose of property including land, similar to that of a natural person. 

The LAA falls under the responsibilities of the Minister for Finance and the Department of Finance (Finance). The Minister has delegated some powers under the LAA to officials within Finance and other acquiring authorities.

Specific questions are 

Q 1. What are your views on the range of land interests and entities covered by the LAA? 

Q 2. How could acquisitions and their administration be reformed to encourage acquisition by agreement and improve the experience for interest holders? 

Q 3. What changes could be made to reduce the time to resolve compensation claims? You might like to consider which party should start the process, whether timeframes should apply and the use of face to face meetings and mediation. 

Q 4. What changes could be made to the types of compensation to ensure expenditure of public money represents value for money? You might like to consider time limits and caps in your response. 

Q 5. How could the LAA review processes and reconsideration avenues be changed to encourage early resolution? 

Q 6. What changes could be made to the CPDP to support better land use management and/or administrative practices? You might like to consider off-market sales and land swaps in your response. 

Q 7. Is the concept of ‘public purpose’ sufficiently clear? If not, how could it be improved? 

Q 8. Are any changes required to the LAA provisions dealing with acquisitions and disposals of overseas land? 

Q 9. Are any changes to the LAA and/or CPDP needed in the context of negotiating ILUAs? 

Q 10. Are the current arrangements for mining on Commonwealth land sufficient and appropriate? Is there a need for national uniformity? 

Q 11. How can the ‘disposal’ power under the LAA be flexible enough to manage future policy priorities? 

Q 12. Should amendments be made to the LAA to support future joint projects between the Commonwealth and states and territories?

Gigs

'Sceptics or supporters? Consumers’ views of work in the gig economy' by Joshua Healy, Andreas Pekarek and Ariadne Vrome in (2020) 35(1) New Technology, Work and Employment comments

Labour-management practices and workers’ experiences in the gig economy are topics of major interest for researchers, regulators and the general public. Platform companies project a vision of gig workers as autonomous freelancers, but pervasive features of their own labour practices, along with workers’ traits, create new vulnerabilities and risks. Efforts to improve gig workers’ conditions to date have made inroads without achieving a general shift in platforms’ practices or gig workers’ conditions. In this paper, we explore how another, less-recognised stakeholder group—consumers—shapes the conditions of gig work. Drawing on Australian public opinion data, we study consumers’ views of the gig economy and ask whether these will help or hinder pro-worker campaigns. While consumers are sympathetic to gig workers’ financial plight, they also see benefits in the work’s flexibility and opportunities for jobseekers. We explain how our findings can inform advocacy campaigns and further gig economy research.

The authors state

The proliferation of new and increasingly diverse digital labour platforms is one of the major economic developments of recent years. By enabling consumers to find and transact with many producers at lower cost, platforms have given rise to an ‘on-demand’ or ‘gig’ economy that is increasingly important in both physical (e.g. food delivery) and online (e.g. data entry) markets (De Stefano, 2016; Howcroft and Bergvall-Kåreborn, 2019; Kuhn and Galloway, 2019; Wood et al., 2019). The leading platforms—Uber, Deliveroo, and many others—are global brands that are quickly becoming corporate titans (Conger and de la Merced, 2019). As labour market intermediaries, platforms account for 1–3 per cent of all paid work in advanced economies and this share is ‘growing fast’ (Schwellnus et al., 2019: 8). 

Various economic benefits have been ascribed to this burgeoning platform economy, mainly due to improved consumer choice and convenience (Minifie and Wiltshire, 2016; Pasquale, 2016). Assessments of platforms’ impact on working conditions, however, are often more critical. In contrast to a prevailing company rhetoric of choice and entrepreneurship (Roberts and Zietsma, 2018; Ravenelle, 2019), gig work is seen as insecure and exploitative by many labour and organisational scholars (Stanford, 2017; Van Doorn, 2017; Aroles et al., 2019). Flexibility for workers is constrained, in practice, by performance surveillance and intense competition for the best-paid tasks (Scheiber, 2017; Lehdonvirta, 2018; Goods et al., 2019). 

Debates about how to protect and advance working conditions in the gig economy are fractious. Worker-led campaigns seek improvements via an array of new and old organising techniques, but platforms vigorously resist attempts to redefine their responsibilities as employers. Some platforms have modified their labour practices at the edges in the face of pressure from workers and/or regulators—such as by recommending (but not requiring) minimum wage compliance, or facilitating workers’ access to private insurance—but these concessions are overshadowed by a larger ‘reclassification risk’ to platforms’ business model (AlphaBeta, 2019). That is, the possibility that gig workers currently treated as contractors will be deemed by regulators to be de facto employees, with correspondingly greater entitlements (Cherry and Aloisi, 2017). 

Legal determinations about this vexing classification issue, to date, are mixed; no universal or consistent precedent has emerged. The future of the gig economy thus remains unpredictable, with labour advocates and platforms often at odds over its benefits and drawbacks. Meanwhile, many governments are moving cautiously in deciding how, or if, to impose new regulations on platforms. There are marked cross-national differences, for instance, in how governments have responded to Uber’s market entry (Thelen, 2018). 

Along with workers and governments, consumers are another critical stakeholder group in the gig economy, although their influence has until recently attracted less academic interest. Thelen and colleagues have argued that platform companies seek to acquire a new form of power, by cultivating the loyalty and, occasionally, more active support, of consumers for whom platform services constitute ‘part of the infrastructure of their lives’ (Culpepper and Thelen, 2019: 8). If successfully nurtured, these bonds of consumer dependency give platforms significant leverage in political and regulatory processes, allowing them to portray critics as hostile to ‘consumer choice’ (Rahman and Thelen, 2019). However, because people have multiple identities that are cued by different issues—not only as consumers but also as citizens, taxpayers, co-workers and so on—public support for platforms is neither inevitable nor unconditional (Thelen, 2018). 

To understand whether consumers will become, and remain, platforms’ sceptics or supporters, we need more finely grained evidence about their views. We contribute to this endeavour, by exploring consumers’ views about one of the most contested issues in platform capitalism: gig work. We argue that consumers’ support for change or, conversely, their tolerance for the status quo is an important and understudied factor influencing how gig work develops. Prior research in different contexts suggests that, while consumers may support labour-rights campaigns for ethical reasons, they can also be mobilised against such actions, if these are seen to unfairly limit choice and convenience. The gig economy is arguably the most important arena in which these tensions over consumer choice, working conditions and business ethics are playing out. 

In this paper, we present detailed empirical evidence about consumers’ engagement with and views about work in a key section of the gig economy, drawing on a unique Australian public opinion data set. We focus on locally delivered gig work, as distinct from its remote and online varieties (Wood et al., 2019). Our approach is exploratory, rather than hypothesis-driven, given the novelty of our study aims. We seek to answer one central research question: Are consumers’ views likely to help or hinder efforts to advance working conditions in the gig economy? 

As a foundation for our analysis, we draw from and link two disparate strands of research, which are canvassed in the next two sections: one on platforms’ labour practices and gig work; the other on consumers and ‘ethical consumption’.

Biometrics

There has been an outbreak of common sense in Scotland, alas not in Australia where governments and solutions providers are still snorting facial biometric pixie dust. The Scottish legislature's Justice Sub-Committee on Policing  comments

The introduction of live facial recognition to policing in the UK is a relatively new phenomenon.

Police Scotland has an ambition, outlined in its 10-year strategy, to introduce its use by 2026. Its assessment of the likely equalities and human rights impact as “likely to be positive in nature” is in stark contrast to the evidence received by the Justice Sub-Committee on Policing.

The live facial recognition software which is currently available to the police service is known to discriminate against females, and those from black, Asian and ethnic minority communities.

For this reason, the Sub-Committee believes that there would be no justifiable basis for Police Scotland to invest in this technology.

We therefore welcome confirmation from Police Scotland that they have no intention to introduce it at this time.

Prior to any decision to introduce live facial recognition technology to policing in Scotland, it is essential that a robust and transparent assessment of its necessity and accuracy is undertaken, and that the potential impacts on people and communities are understood.

The use of live facial recognition technology would be a radical departure from Police Scotland’s fundamental principle of policing by consent.

Police Scotland need to demonstrate that its use of this technology is provided for in legislation and meets human rights and data protection requirements.

This short inquiry has highlighted the pressing need for a much wider debate on the use of live facial recognition technology by the police service, as well as more widely across the public sector, and by private companies. Politicians could play a key role in determining whether there is public consent for the use of this technology.

The Sub-Committee hopes that this inquiry has gone some way to begin that debate, and that the Scottish Government will take up the challenge.

Police Scotland currently use retrospective facial recognition technology. Its procedures and practices would benefit from a review by the Scottish Police Authority and any incoming Scottish Biometrics Commissioner.

In particular, consideration of the risks and legal implications of Police Scotland accessing and using any images held illegally on the UK Police National Database of people who have not been convicted of any crime.

The same concerns arise from Police Scotland’s ability to access and use images of people who have not been convicted of any crime, but which are retained on the legacy IT systems they inherited from the former Scottish police forces.

The Sub-Committee believes that the police must have all necessary tools at their disposal to combat crime and keep communities safe.

New technologies have the potential to assist Police Scotland in detecting and solving crimes. However, each new technology must be assessed on its merits, with an honest and transparent discussion of both the benefits and the risks.

The Sub-Committee warmly welcomes Police Scotland’s intention to introduce the use of ethics panels to consult with relevant stakeholders to identify and mitigate risks, and to inform its decisions on whether to introduce new technologies.

The Subcommittee's report concludes -

Live facial recognition technology 

Police Scotland does not currently use live facial recognition technology. However, at present plans to introduce facial recognition technology are included in Police Scotland’s 10-year strategy, Policing 2026.

The evidence received by the Sub-Committee during its inquiry indicates that a number of safeguards need to be met, prior to Police Scotland introducing the use of this technology. A key issue to be resolved is the technology’s lack of accuracy.

It is clear that live facial recognition technology is currently not fit for use by Police Scotland. The Sub-Committee believes that there would be no justifiable basis for Police Scotland to invest in technology which is known to have in-built racial and gender bias, and unacceptably high levels of inaccuracy.

The Sub-Committee therefore welcomes Police Scotland’s confirmation that they will not introduce live facial recognition technology at this time. We also welcome their commitment to participate in a wider debate on policy, which will include civil liberties groups and academics, and to ensure that necessary safeguards are in place, prior to making any decision to introduce live facial recognition technology. Wide stakeholder engagement has clearly added value to current plans to deploy cyber kiosks.

However, if Police Scotland does not now intend to introduce live facial recognition technology by 2026, the Scottish Police Authority should update the 10-year strategy to reflect that position, as part of the planned review in 2020.

If Police Scotland does intend to introduce live facial recognition technology at some point in the future, the impact of its use must be fully understood prior to any decision being taken to introduce it to policing in Scotland.

The recent challenges in court to the legality of the use of live facial recognition technology by the police services in England and Wales suggests that there is a lack of public consent for its use, as well as a lack of confidence in the current legal framework being relied upon.

The Sub-Committee recommends that the following actions be taken prior to any decision to introduce live facial recognition technology to policing in Scotland:

• The Policing 2026 strategy should be updated to include details of the type of technology to be introduced, and the necessity and parameters of its use. The strategy’s equality and human rights impact assessment (EqHRIA) should also be reviewed by the Scottish Police Authority to ensure that it is suitably robust.

• The Scottish Police Authority must ensure that comprehensive human rights, equalities, community impact, data protection and security assessments are carried out.

• Similar assessments are also required prior to introducing any other technologies within Policing 2026, especially where there is a risk of collateral intrusion into areas of personal privacy and human rights. Any such assessments should be made publicly available.

• The Cabinet Secretary for Justice must ensure that there is a robust legal and regulatory basis for the use of live facial recognition technology in Scotland. This would provide legitimacy for the police service and assurance for the public.

The Sub-Committee requests clarification of the Government's plans, and whether this would include a consultation on public consent for the use of this technology. 

The Scottish Police Authority must review the legal challenges to the use of live facial recognition technology by police forces in England and Wales, and consider how to mitigate the risk of similar legal challenges in Scotland.

The Sub-Committee has not received sufficient evidence of the necessity to introduce live facial recognition technology, or that it is possible to use it in a proportionate way. Its use on people who attend legitimate and legal pursuits, such as peaceful protests, concerts or sporting events, is not necessary or proportionate. 

The Scottish Police Authority should assess the necessity, proportionality and parameters of its use. Police Scotland needs to demonstrate that there is public consent for the use of live facial recognition technology before introducing it, as a lack of public consent risks undermining the legitimacy of the technology and potentially, public confidence in policing. It could also represent a failure to meet the principles set out in the Police and Fire Reform (Scotland) Act 2012.

Any consultation on the introduction of the use of live facial recognition technology must take into consideration its potential impact on human behaviour and the relationship between the public and the police.

Police Scotland and the Scottish Police Authority must clarify how they will ensure that data protection requirements will be met for the use of live facial recognition technology. This should include confirmation of whether a data protection impact assessment detailing the risks and how these are to be mitigated would be a necessary requirement.

The Scottish Police Authority should take account of the UK Biometrics and Forensics Ethics Group's framework of ethical principles when considering Police Scotland’s proposal to introduce the use of live facial recognition technology.

To provide public confidence, any incoming Scottish Biometrics Commissioner should consider any future plans by Police Scotland to introduce the use of live facial recognition technology prior to a decision being taken by the Scottish Police Authority to approve its introduction.

Retrospective facial recognition technology

Police Scotland currently use retrospective facial recognition technology, which includes facial search and match processes.

The Sub-Committee heard concerns about the legal basis for Police Scotland’s use of retrospective facial technology, and whether their processes meet human rights and data protection requirements.

The lack of legislation enabling Police Scotland to retain and use photographic images held on its IT systems is an issue which must be addressed.

Police Scotland’s retention and use of images of innocent people held on its legacy IT systems and on the UK Police National Database, is another issue which must be addressed.

This practice infringes the human rights of those whose images are retained and represents an ongoing risk of both legal challenge and reputational damage to Police Scotland.

The Sub-Committee is concerned about the lack of regulation and transparency over the use of facial recognition technology by private companies and in the wider public sector, and their practice of sharing the data they collect with the police service. If the Scottish Biometrics Commissioner is not to have any formal oversight of the private sector or wider public sector, they will not be held to the same standard as the police service.

The Sub-Committee recommends that the following actions be taken to address concerns about Police Scotland’s use of retrospective facial recognition technology: The Scottish Government should confirm whether it will legislate to enable Police Scotland to take, retain, use and share photographic images. 

The Scottish Government should address the lack of regulation over the use of facial recognition technology by private companies, and by the wider public sector, and the data they share with the police service. Police Scotland should to provide details of its plans, including the timescale, for deleting images of innocent people retained on legacy databases. 

The Scottish Police Authority should carry out a review of Police Scotland’s use of retrospective facial recognition technology. This should include their use of the UK Police National Database and the legal basis for uploading photographs to that database. It should also include consideration of the consequences of their access to and use of any images of innocent people held illegally on that Database. 

The review should take a human rights-based approach to this assessment. 

During its inquiry, the Sub-Committee considered Glasgow City Council’s plans to introduce ‘Suspect Search’ software into its public space CCTV system, and to provide Police Scotland with access to the data it collects and creates. Glasgow City Council confirmed in their written evidence that the software is not based on facial recognition, but on characteristics, such as full body image. They also confirmed that it has a tracking functionality, which is described as “quasi-real time”, to reflect the time delay in tracking an individual. The software has not yet been introduced, as the UK Information Commissioner’s Office is currently considering the data protection impact assessment. 

The Sub-Committee is to write to the ICO to request an update on its consideration, and to Glasgow City Council to request further details of its plans.

The Sub-Committee asks the Scottish Police Authority to review Police Scotland’s plans to access and use Glasgow City Council’s Suspect Search technology. This should include consideration of whether all the necessary impact assessments have been undertaken and safeguards met.