Bad Vibes

In Psychology Board of Australia v Meulblok (Review and Regulation) [2020] VCAT 579 the Victorian Civil and Administrative Tribunal (VCAT) has voiced concern regarding a health practitioner's use of so-called ‘energy medicine’ in therapeutic sessions and disregard of a patient's privacy.

VCAT found

The respondent engaged in professional misconduct within the meaning of the definition in paragraphs (a) and (c) of s 5 of the Health Practitioner Regulation National Law (National Law) in that, from on or around the period 1 August 2017 to 2 February 2018,

• she transgressed the professional boundaries that should and ordinarily do exist between a psychologist and her patient and/or former patient in that she engaged in an inappropriate dual relationship including a personal and intimate relationship with her patient and/or former patient Mr XY. (Allegation 1) 

• The respondent engaged in professional misconduct within the meaning of the definition in paragraph (a) of s 5 of the National Law in that between August 2017 and September 2017, and during the course of her of psychological treatment with Mr XY, the respondent provided treatment that was not evidence based and was not clinically justified when she touched parts of Mr XY’s body. (Allegation 2) 

• The respondent engaged in professional misconduct within the meaning of the definition in paragraph (a) of s 5 of the National Law in that on or around November 2017 and December 2017, she failed to maintain Mr XY’s privacy and confidentiality and/or transgressed professional boundaries that should and ordinarily do exist between a psychologist and her patient and/or former patient, when she discussed Mr XY with her husband, including the prospect of Mr XY returning to therapy with her and by encouraging Mr XY to pursue a relationship with her husband. (Allegation 3)

An outcome - with the agreement of the Psychology Board and the practitioner - is that under the National Law the practitioner is disqualified from applying for registration as a registered health practitioner for a period of two years and is prohibited from providing (whether as employee, contractor, manager or volunteer, and whether directly or indirectly) any health service involving the provision of mental health, psychological or counselling services for a period of two years.

VCAT's overview states

Ms Sheridan Leanda Meulblok was a registered psychologist from August 2000, when she was first registered, until December 2018, when she did not renew her registration and it lapsed.

This case is about Ms Meulblok’s professional conduct between August 2017 and February 2018 in relation to a patient, Mr XY, and the consequences of that conduct.

It concerns an inappropriate relationship Ms Meulblok pursued with Mr XY, including personal and intimate communications and physical contact; persisting with contact after he had asked her to stop; breaches of his privacy; and a failure to safeguard his well-being. It is about the risk of serious harm posed by a psychologist who fails to recognise or acknowledge that professional boundaries are being blurred and then crossed; fails to seek timely supervision; and puts his or her own emotional or other needs above the patient’s care and well-being. The risk is well-known and in this case was realised. The conduct caused serious and significant harm to Mr XY. These are professional disciplinary proceedings under the Health Practitioner Regulation National Law (National Law). The Psychology Board of Australia (Board) has referred three allegations to the Tribunal: 

Allegation 1: between 1 August 2017 to 2 February 2018, Ms Meulblok transgressed the professional boundaries that should and ordinarily do exist between a psychologist and her patient or former patient by engaging in an inappropriate dual relationship including a personal and intimate relationship with a patient/former patient; 

Allegation 2: between 1 August 2017 and September 2017, during the course of her psychological treatment, she provided treatment that was not evidence-based and was not clinically justified when she touched parts of Mr XY’s body (the so-called ‘energy medicine’ therapy); and 

Allegation 3: in November and December 2017 she failed to maintain Mr XY’s privacy and confidentiality and transgressed professional boundaries when she discussed Mr XY with her husband, including the prospect of Mr XY returning to therapy with her, and encouraged Mr XY to pursue a friendship with her husband.

Soon after receiving notice of the complaint, Ms Meulblok took full responsibility for her conduct. She expressed shame and regret for the damage it has caused to Mr XY, her family and her profession. She cooperated with conditions imposed by the Board’s Immediate Action Committee (IAC) in April 2018. In late 2018, she decided to cease practice as a psychologist and not renew her registration. She does not intend to return to practice in the future.

Ms Meulblok admits the three allegations, including that she acted in breach of:

• the Australian Psychological Society’s Code of Ethics (Code) and the associated guidelines including the: 

• Australian Psychological Society’s Guidelines for managing professional boundaries and multiple relationships (version with effect from March 2016); 

• Australian Psychological Society’s Ethical Guidelines on the prohibition of sexual activity with clients (version with effect from February 2017); 

• Australian Psychological Society’s Ethical Guidelines on confidentiality (version with effect from December 2017); and 

• Australian Psychological Society’s Ethical Guidelines relating to procedures/assessments that involve psychologist-client physical contact (version with effect from October 2016).

On the basis of Ms Meulblok’s admissions, the agreed facts supported by the evidence in the Tribunal Book, and the expert report of Dr Christopher Lennings, we found the allegations proved and made those findings at the hearing. We found that the conduct in allegation 1 is appropriately characterised as professional misconduct under paragraphs (a) and (c) of the definition in s 5 of the National Law, and the conduct in Allegations 2 and 3 are professional misconduct under paragraph (a) of the definition. ...

Ms Meulblok had no prior disciplinary history over an 18-year career as a psychologist and had a local reputation as a well-regarded psychologist with notable success in treating eating disorders.

This case illustrates that a failure to step back in time from crossing professional boundaries, reflect and modify one’s conduct, raise the issues and their solution in formal supervision, and appropriately transfer the patient’s care, can end a career.

In dealing with 'energy medicine' VCAT states

[4.8] During the treatment sessions, the notifier referred to chronic pain in his neck, shoulders and jaw. In response, in or around August 2017, Ms Meulblok introduced the concept of ‘energy medicine’ treatment during a session. She suggested that childhood trauma might be the cause of this pain and ‘energy medicine’ may be able to release the trauma and relieve the pain. 

[4.9] The ‘energy medicine’ consisted of Ms Meulblok sitting on the couch next to the notifier and placing her hands on parts of his body that were experiencing pain. Ms Meulblok practiced the ‘energy medicine’ by: (a) on 14 August 2017, by placing her hand on his shoulder for approximately 20 seconds; (b) on 22 September 2017, by placing her hands on his back, shoulder, chest and jaw. 

[4.10] The notifier was under the impression that the ‘energy medicine’ practice was a proper approach and well-founded. 

[4.11] Ms Meulblok knew that there was no evidence base for the ‘energy medicine’ described above and it had no clinical justification. 

[4.12] In the circumstances, there was no appropriate rationale or purpose for the physical contact and any consent obtained was not informed consent. The physical contact was not documented, nor was any rationale, purpose or consent obtained. 

[4.13] At the time of the physical contact, Ms Meulblok had developed affection for, and attraction to, the notifier. Ms Meulblok knew that the physical contact increased the likelihood of sexualisation of the therapeutic relationship.

At [62] VCAT states

Counsel for the Board provided a table of decisions of this Tribunal in the last 10 years involving personal, intimate or sexual boundary breaches by psychologists, to illustrate the range of facts and circumstances that have come before the Tribunal, and the consequential orders made. The cases show that loss of the right to practise, whether by suspension or disqualification, will be almost inevitable, and that the orders made will depend very much on the particular circumstances of the case.

That table is a useful resource for health law students.

Forests

'An Intergenerational Ecological Jurisprudence: The Supreme Court of Colombia and the Rights of the Amazon Rainforest' by Alessandro Pelizzon in (2020) 2(1) Law, Technology and Humans 33 comments

In 2017, 25 young Colombians, then aged 15 to 25 and living in 17 different Colombian municipalities, initiated the first successful climate change and future generations lawsuit in Latin America and, indeed, the world. Assisted by the organisation Dejusticia, the young plaintiffs filed a tutela action—a special action under the Colombian Constitution that allows individuals to demand the protection of their fundamental rights. In this action, the plaintiffs contended that the current deforestation rates and their destructive consequences were violating their future right to a healthy environment. They further submitted that climate change is and (more importantly) will continue to be a direct threat to their fundamental rights to life, health, food and water, which would continue to diminish due to the damage that is likely to occur and the effects of business-as-usual activities in the near future.

The Supreme Court of Colombia delivered a remarkable judgment in an untraditional environmental damage case. The presiding judge, Justice Tolosa, ruled in the plaintiffs’ favour, granting their petition and guaranteeing the right to enjoy a healthy environment and their future rights to life, health, food and water. Moreover, Justice Tolosa ordered that the Colombian Government must formulate an action plan to reach zero-net deforestation in the Amazon by 2020 and create an intergenerational pact for the future of the Amazon. More importantly, in granting the plaintiffs’ petition, Justice Tolosa went beyond the grounds raised in the plaintiffs’ brief by recognising the Amazon rainforest as a subject of rights. Justice Tolosa later stated, ‘our community is much wider and more diverse than what we used to think. Earth does not belong to human beings. On the contrary, human beings are the ones who belong to the Earth’.

The young plaintiffs were driven by an awareness that they were the first generation to reach adulthood in peace—Colombia had reached a peace agreement three years earlier, ending decades of internal strife—and the last generation that, according to overwhelming scientific consensus, would be able to stop the most destructive and devastating consequences of climate change. The plaintiffs considered the primary drivers of greenhouse emissions in Colombia and reports that deforestation alone accounted for 36% of these emissions. In 2016, deforestation in the Colombian Amazon, one of the most biodiverse regions of the planet, increased by 44%; in this time, 170 thousand hectares (an area equivalent to the size of Long Island) were cut down in a single year and many areas that had previously been inaccessible because of conflict were now within easy reach of loggers.

The plaintiffs argued that they would reach adulthood between 2040 and 2070, when, according to virtually all climate change scenarios modelled on the current trends, they would be living in a country at least 1.6% warmer, whose water cycles would have been profoundly altered by deforestation, with significantly increased occurrences of floods, droughts, landslides, as well as decreased access to water and food security. Thus, despite not living in the Amazonian region themselves, the plaintiffs argued that anything that happens in the region has, and will continue to have, a direct impact upon them, and indeed everyone in Columbia and the rest of the world. The plaintiffs based their action on four legal pillars: 1) The Paris agreement to reduce greenhouse emissions, which in its preamble explicitly refers to ‘intergenerational equity’; 2) A multilateral agreement between Colombia, the United Kingdom (UK), Norway and Germany to stop deforestation in the Amazon; 3) The Colombian Constitutional right to a healthy environment; and 4) The National Development Plan that set a deforestation rate of less than 90,000 hectares per year.

To understand the position of future generations, the plaintiffs asked the court to take into account five principles in determining the matter: the precautionary principle; the principle of participation; the principle of the best interests of the children; the principle of intergenerational equity; and the principle of solidarity (i.e., solidarity with other humans, future generations and non-human beings). Finally, aware that they faced enormous difficulties in proving that the future lives of children living hundreds of kilometres away from the rainforest would be impacted in the future by actions presently being conducted there (which they needed to prove to show that they had standing to bring the case), most of the voluminous scientific evidence they presented was directly drawn from studies conducted by the government itself.

In his judgment, Justice Tolosa reasoned that when faced with accurate and overwhelming scientific evidence, judges cannot simply ignore that evidence, but must intervene to stop the inaction of both governmental entities and private businesses. Thus, in such cases, affirmative action represented both a judicial duty and an ethical imperative. Justice Tolosa further determined that a number of environmental rights are available to all Colombian citizens as Constitutional rights and their protection does not need to be explicitly invoked by a plaintiff for them to be applied. In recognising such rights, Justice Tolosa referred to and applied the principles articulated by the Constitutional Court of Colombia in the Atrato case of 2017. In that nuanced and detailed judgment, the Constitutional Court recognised the Atrato river as a legal subject, an entity to be represented by specifically appointed ‘guardians of the river’ with the equal participation of the Indigenous communities that have lived in the region since ancestral times.

Justice Tolosa explicitly referred to three principles: firstly, the principle of an ‘Estado de derecho constitucional y ambiental’ (a state based on a constitutional and environmental rule of law); secondly, the principle of ecological public order; and thirdly, the principle of ecological sovereignty. Justice Tolosa noted the need for a paradigmatic epistemological change, a ‘Copernican revolution’ regarding the category of legal subjectivity, which can no longer be limited to humans alone. To move beyond a token application of the precautionary principle, Justice Tolosa reasoned that a more ecologically aware ethical approach must be grounded in ‘moral de la alteridad’ (a ‘morality of the other’) that would be capable of encompassing not only all other humans, but also all future humans and the non-human world. The idea of the legal personhood of nature and of the rights of nature was thus an important symbolic and ethical responsibility (shared by all) to safeguard children, grandchildren and all of posterity. This responsibility made it necessary to declare the Amazon basin a legal subject, even though the plaintiffs had not explicitly asked the court to do so and even though the plaintiffs did not live in the Amazonian region themselves.

Justice Tolosa’s judgment can be described as a ‘courageous’ judgment, one that, in the words of Justice Francois Kunc of the Supreme Court of New South Wales, displays courage as a fundamental judicial value. Further, as Justice Antonio Herman Benjamin of the High Court of Brazil observed, the emblematic decision demonstrates the profound need for the judiciary to meaningfully engage with legal concepts and the depth of novel legal theory, even in instances where doings so takes members of the judiciary outside their ‘comfort zone’.

More importantly, this judgment highlights a shift in legal thought that has gained momentum over the past decade towards a novel ‘ecological jurisprudence’. This concept will be explored and contextualised further below in Parts II and III. Specifically, Part II will trace the theoretical origin of ‘ecological jurisprudence’ with particular reference to the emergence of the theory known as ‘Earth jurisprudence’ at the beginning of the 21st century. Part III will focus on the contextual articulation of this novel theory in a number of international jurisdictions. After providing the necessary contextual background, the article will then return to the central thesis that was introduced in this section: that is, that a radical shift in legal thinking is occurring (increasingly, it appears) in response to the demands of younger generations, whose political claims tend to be more clearly and explicitly ecologically focused. This article contends that the influence of the younger generations on the discourse of ecological jurisprudence is capable of engendering an atmosphere of hope and providing the necessary framework within which we, as humans, can reconceptualise our collective self in relation to the non-human world for future generations.

Rossi

Last year I noted the egregious vetting failure by Victoria Police regarding officer Rosa Rossi. The ABC, in reporting on a County Court hearing, comments that "A Victorian police officer claimed squatters' rights on at least five properties to expand her investment portfolio and used her position and police uniform to help in the scam".

Rosa Rossi's colourful history before relying an adverse possession scam was not detected why the force, allowing her to identify vacant properties, change the locks and install tenants.

Use of adverse possession - one of those areas of real property law that entertain students and academics alike - featured in McFarland v Gertos [2018] NSWSC 1629, discussed here. Rossi's scam was distinctly less pleasant.

The ABC's report states that the Court was told Rossi

had researched the legalities of "adverse possession" — otherwise known as squatters' rights — where if a person acts as if the property is theirs for 15 years it becomes theirs. 

"It is an oblique area of the law, hardly known, hardly traversed," Mr Pickering told the court. "Ms Rossi was using dishonest means in what she saw was a legitimate end."

Views might differ on her sense of legitimacy.

The charges relate to her activities between April 2016 to June 2017, where she targeted six properties. Three were in the Melbourne suburbs of Chadstone, Brooklyn and Malvern and the others were in the town of Willaura, south of Ararat. 

The court heard her offending started out small and involved inexpensive properties in Willaura worth $50,000 and $108,500. But then she targeted properties that were worth considerably more, including a Malvern house worth almost $1 million. ...   

Rossi lied to tenants and councils The court heard Rossi did property searches to find out who owned the properties. She set up a company called Sweet Georgia Pty Ltd, which was used to advertise for tenants, and engaged a property management company. 

The court heard police were called to one of the properties after neighbours reported suspicious activity. Rossi told the officers not to worry because she was a police sergeant. "It shows a certain ruthlessness that when confronted by police this was the kind of ruthlessness she was prepared to use," Mr Pickering told the court. ... 

 The court was told Rossi falsely filled out statutory declarations claiming she acted for the real owners in changing addresses with water and power companies and local councils. On one occasion she visited the Hobson's Bay Council dressed in her police uniform, seeking details of a property owner. She also went to Australia Post to seek mail redirections, so the real owners would not twig to the scam. 

Rossi told one of her tenants to lie to Centrelink about her living arrangements with her partner, in order to pay Rossi rent on one of the scammed properties. Tenants in the Chadstone property were told the original owners of the house they rented had been deported from the country and the assets seized.

The owners had not abandoned the properties and were unsurprisingly unhappy to find  tenants in possession.

Tasmanian Privacy

The Tasmania Law Reform Institute (TLRI) has announced support from the Tasmanian Solicitor Guarantee Fund in funding the Privacy Law Reference in 2020-2021 from the Hon Meg Webb MLC to inquire into, review and report on:

1. The current protections of privacy and of the right to privacy in Tasmania and any need to enhance or extend protections for privacy in Tasmania. 

2. The extent to which the Personal Information Protection Act 2004 (Tas) and related laws continue to provide an effective framework for the protection of privacy in Tasmania and the need for any reform to that Act. 

3. Models that enhance and protect privacy in other jurisdictions (in Australia and overseas).

In undertaking this reference the TLRI

will consider and have regard to: 

a. the United Nations International Convention on Civil and Political Rights and other relevant international instruments that protect the right to privacy. 

b. relevant existing and proposed Commonwealth, State and Territory laws and practices 

c. any recent reviews of the privacy laws in other jurisdictions. 

d. current and emerging international law and obligations in this area. 

e. privacy regimes, developments and trends in other jurisdictions. 

f. the need of individuals for privacy protection in an evolving technological environment, and 

g. any other related matter. 

The TLRI states that it is "presently designing an inquiry plan and will call for expressions of interest for a dedicated researcher to assist us with the inquiry soon".

Memorialisation

The Births, Deaths and Marriages Registration (Tissue Donor Acknowledgment) Amendment Bill 2020 (ACT) - a private members bill passed today - was introduced to amend the Births, Deaths and Marriages Registration Act 1997 (ACT) to

allow a next of kin of a deceased person to apply to the Registrar-general of births, deaths and marriages to include a statement in the register of a person’s death that they were a tissue donor, or to request the Chief Minister for a letter acknowledging the tissue donation.

Presumably people have always been able to request a statement or letter, with the request being disregarded.

 The Explanatory Statement for the Bill, as amended by the Government, indicates

The purpose of the Government Amendments is to reduce the complexity of the scheme as embodied in the Bill to avoid unintended impacts, and to allow it to be successfully implemented. 

The Amendments will limit the scope of recognition of tissue donors on the Register and on death certificates to deceased tissue donors, rather than allowing for recognition of all persons who made tissue donations during their lifetime. It removes the aspect of the Bill providing for the Registrar-General to notify the Chief Minister of the wish of the next of kin to receive a letter of acknowledgement. Such letters can be provided through administrative processes. Finally the Amendments provide for a delayed commencement to allow additional time for implementation of the proposals. 

The Government Amendments may promote the right to privacy protected in s 12 of the Human Rights Act 2004, in removing the requirement for a family member to apply to the Registrar-General to receive an acknowledgement letter from the Chief Minister. 

Removing this requirement, and instead allowing a letter to be sought directly from the Chief Minister through administrative processes, will reduce the level of disclosure of personal information required from family members to different Government agencies.The Government Amendments do not otherwise engage human rights. 

Although the amendments will reduce the scope of recognition to deceased tissue donors, rather than including recognition of a tissue donation made by the person during their lifetime, this differential treatment of different circumstances is reasonable and does not substantively limit equality rights of family members

Speech and Digital Platforms

'Search Engines and Global Takedown Orders: Google v Equustek and the Future of Free Speech Online' by Robert Diab in (2020) 56(2) Osgoode Hall Law Journal 231 comments

The Supreme Court’s decision in Google v Equustek (2017) to uphold a global content takedown order remains controversial and consequential to wider debates about governing the internet. This commentary examines the Court’s underlying assumption – a common view in takedown jurisprudence – that where a portal directs a critical mass of users to a harmful site, it facilitates harm and no longer engages in valuable speech. This ran contrary to the Court’s more considered view of links in Crookes v Newton (2011) as a form of mere reference and valuable per se for enabling the internet as a public forum. This commentary argues the Court should have applied its theory from Crookes to search engine links as no different in principle from others, while conceding that, at scale, links that merely refer can facilitate harm. Drawing on the Copyright Act and the Manila Principles on Intermediary Liability, the author proposes a test for takedown orders that strikes a better balance between free speech and private interests.

'The Rise of Content Cartels' by Evelyn Douek comments

The fear that a single actor can decide what can or cannot be said in large parts of the online public sphere has led to growing calls for measures to promote competition between digital platforms. At the same time, others are demanding greater cooperation between the custodians of the public sphere. These pressures are not necessarily at odds, but some work needs to be done to reconcile them. To what extent should platforms have consistent content moderation policies? If standards and guardrails are imposed on the public sphere, should platforms work together to ensure that the online ecosystem as a whole realizes these standards, or would society benefit more if it is every platform for itself? 

The concerns behind these questions has led to the rise of "content cartels:" arrangements between platforms to work together to remove content or actors from their services without adequate oversight. These come in various guises; they can be demanded, encouraged, participated in, or unheeded by regulators. But they share the characteristic that they compound the existing lack of accountability in platform content moderation. 

This paper begins in Part I by tracing the origin and spread of content cartels, showing that content cartels are the proposed response to an increasing number of pathologies in online discourse. Part II examines the impulses behind demands for greater cooperation and the ways in which such cooperation can be beneficial. Part III explores the failures of the current arrangements and the threats they pose to free speech. Part IV sets an agenda for developing the tools to create productive and legitimate cooperation between platforms in those areas where it can be beneficial or has become inevitable. 

This paper has two goals. The first is to raise the alarm about a possible future coming into view, of unaccountable content cartels making decisions about the parameters of online discourse in a way that is just as problematic as an unaccountable monopoly. The second is to explore what can be beneficial about collaborative efforts and what might redeem them. This is a pivotal moment in the management of public discourse, and the structures built now should serve enduring values. We need not settle for institutions that stick band-aids on some problems but do not serve the deeper goal of building trust in online speech governance.

Poly and Statutory Interpretation

In Paul v Mead [2020] NZHC 666 Hinton J offers New Zealand's first judicial consideration of whether a Court has jurisdiction to determine the property rights of three persons in a polyamorous relationship under the Property (Relationships) Act 1976 (NZ), holding that it does not.

It is of interest to scholars of statutory interpretation, equity, family law and identity.

The Court indicates that the NZ legislature clearly chose to base the Act on the concept of "coupledom" that does not apply to relationships of more than two persons. The statutory scheme as enacted does not anticipate such relationships being divided into dyadic relationships to 'fit' the Act. The Court considers that although there is a forcible policy argument the Act should be extended, it is for Parliament, not the Court, to revisit the scope of the Act. However, until that happens, equity may offer some relief.

The judgment states

[1] This case raises an interesting and contentious issue over whether the Property (Relationships) Act 1976 applies to a “polyamorous relationship”. 

[2] The point arises as a question of law referred to this Court by way of case stated by Judge Pidwell sitting in the Family Court at Waitakere as follows: Does the Family Court have jurisdiction to determine the property rights of three persons in a contemporaneous polyamorous relationship under the Property (Relationships) Act 1976?   

[3] The two effective claimants appear to accept that the Property Relationships Act 1976 (the Act) does not provide for polyamorous relationships as such. They do not claim jurisdiction on that basis. Rather, they seek to break their three-way relationship down into contemporaneous qualifying relationships. I have therefore restated the question slightly as follows: Does the Family Court have jurisdiction under the Property (Relationships) Act 1976 to determine the property rights of three persons in a polyamorous relationship, either on the basis of that relationship or by dividing that relationship into dyadic parts? 

Background 

[4] The parties accept the following excellent summary of the facts by Judge Pidwell, to which I have added only in small part and where uncontentious. 

[5] Lilach and Brett Paul were legally married in New Zealand on 28 February 1993. They have no children. [ 

6] In 1999, Lilach met Fiona Mead. 

[7] In 2002, the three parties formed a polyamorous relationship. 

[8] In November 20023 the parties moved into a four-hectare property in Kumeu which had just been purchased in Fiona’s name for $533,000. She paid the deposit of Pursuant to s 13 of the Family Court Act 1980 and pt 21 of the High Court Rules 2016. The phrase “polyamorous relationship” is not defined in the case stated. It has a potentially wider meaning, but given the facts of the case, I treat it as a relationship between three persons or more. The Judge noted a date of March 2003 but the parties agree it was November 2002. Nothing turns on the date for present purposes.   The parties describe the property as a farm. It had a QV of $2,175,000 in 2017. This is the property in dispute. 

[9] For the next 15 years, the parties lived together at the Kumeu property. Their polyamorous relationship continued. For the most part they shared the same bed. 

[10] Fiona practised as a veterinarian throughout the relationship. Brett established a paintball business on the property. Brett and Lilach had a lawn mowing business. Lilach also practised as an artist. 

[11] Each party contributed to the household and to activities which occurred on the property (being general maintenance of the property and helping each other with their respective businesses). The parties differ as to what extent the contributions occurred. 

[12] While the relationship between Lilach, Brett and Fiona was the primary relationship, there were other secondary relationships between each party and other individuals. Some of these secondary relationships were between one party and the secondary party, while others involved more than one party (again, either individually at different points of time or forming a secondary polyamorous relationship). At-least one of these secondary relationships appears to have lasted for three years. 

[13] I think it helpful to add the following from Lilach’s affidavit, which seems undisputed: 

For [...] 15 years we were in a relationship and lived together at the property. We had an understanding that although we were free to love others, the relationship between the three of us was the main relationship. For the large majority of the relationship all three of us have been sharing the same room and same bed until about a year before our separation when I moved into the guest room. When we moved into the property Fiona, Brett and I committed to a shared life with each other. In particular, soon after we moved into the Property, we had a private ceremony during which Brett and I gave a third ring to Fiona. The ring was identical to the ring that Brett and I had with the exception of the stone in the middle and it was made by the same jeweller 

[...] We all wore our rings throughout our 15 year relationship, but I did lose my ring about two years ago. The pictures [attached to the affidavit] show the ceremony and our rings. 

[14] Lilach separated from Fiona and Brett in November 2017. 

[15] Brett and Fiona subsequently separated in early 2018. Fiona remains living in the Kumeu property. 

Procedural History 

[16] On 15 February 2019 Lilach applied to the Family Court at Waitakere naming Fiona and Brett as respondents and seeking orders determining the parties’ respective shares in relationship property. In her narrative affidavit of the same date, Lilach records that she had been in a de facto relationship with Fiona, Brett had been in a de facto relationship with Fiona, and the three of them were “in a committed relationship for more than 15 years”. She records that they lived together in the Kumeu property, which was their family home, and indicates that she seeks a one-third share. 

[17] On 11 March 2019 Fiona appeared under protest to object to the Family Court’s jurisdiction on the basis that Lilach’s application was founded on a relationship of three people and thus does not relate to a de facto relationship as defined by the Act. 

[18] On 22 March 2019 Brett filed a notice of defence and also a cross-application for orders determining the parties’ shares in the relationship property “arising as a consequence of the contemporaneous relationships” and for a declaration that the parties were in three contemporaneous qualifying relationships under the Act as follows: (a) Brett and Lilach as husband and wife; (b) Brett and Fiona as de facto partners; and (c) Fiona and Lilach as de facto partners. 

[19] On 29 March 2019 Lilach applied for orders setting aside Fiona’s protest to jurisdiction on the grounds that the three parties were “in a relationship of 15 years duration” and the application relates to three ‘triangular’ contemporaneous relationships, being those described by Brett. Relying on ss 52A and 52B of the PRA,   DM v MP [2012] NZHC 503, and Chapman v P Chapman v P (2009) 20 PRNZ 330 (HC), the application records that the Family Court has jurisdiction to determine the division of relationship property “where there is more than one contemporaneous de facto relationship and/or marriage.” 

[20] By Minute dated 7 June 2019, Judge Pidwell referred the case to this Court by way of case stated, recording that she was not aware of any case law that assists on the issue. The Judge framed the question herself after the parties failed to agree on the specific terms of reference. She records that Lilach and Brett claim equal shares in the relationship property. However, it is now clear they each claim a one-third share and the subject of the claims is the Kumeu property. 

Discussion No claim can be made under the Act based on a polyamorous relationship per se 

[21] It is clear on the face of the Act that parties cannot bring a proceeding based on a polyamorous relationship per se. That is not possible as a result of the definitions in the Act. Such a relationship does not ‘qualify’ under the Act. 

[22] As noted, that position appears to be accepted by Lilach and Brett, who do not advance their claims on that basis. They instead rely, by way of analogy, on the application of the ‘contemporaneous relationship’ provisions of the Act, ss 52A and 52B. I consider the applicability or otherwise of these below. 

[23] For completeness however, I first record that the relationships that do qualify under the Act are marriages, de facto relationships and civil unions, as defined. Each of these is plainly limited, for the purposes of the Act, to relationships between two people only. 

[24] The definition of “marriage” in s 2 provides that “marriage” has the meaning given to it in s 2A. That is an inclusive definition provision only. The provision does not purport to define the concept of “marriage” in and of itself. But it supposes that marriage is a dyadic relationship; referring to a “married couple” and “both spouses”.   This is consistent with the definition of “marriage” in s 2 of the Marriage Act 1955 (as amended) as “the union of 2 people, regardless of their sex, sexual orientation, or gender identity” (emphasis added). 

[26] The definition of de facto partner and de facto relationship is similarly dyadic in effect. A person is a person’s de facto partner “if they have a de facto relationship
  and a de facto relationship is “a relationship between two persons” both aged eighteen years or older, “who live together as a couple”  (emphasis added), with each other”, and are not married to, or in a civil union with, one another. 

[25] “Civil union” is similarly defined and limited to two people. 

[27] Plainly, more than two people cannot be married to each other, and, at least for the purposes of the Act, more than two people cannot form a qualifying de facto relationship. That would be even more so here, where two members of the polyamorous relationship are married. The definition of a de facto relationship excludes persons who are married to each other. So, such people could not form part of a single qualifying de facto relationship also comprised of one or more others. 

Separate concurrent claims 

[28] As noted above, Lilach and Brett’s respective cases rest on the Court being able to divide the polyamorous relationship into three parts and consider concurrent claims in respect of each. 

[29] In this instance, while Lilach and Brett each plead there were three separate relationships, which conceptually would involve three separate claims, there are only two. Lilach and Brett, although a married couple who would have a qualifying relationship, make no claim against each other. 

[30] Lilach and Brett say the Court can find that each of them was in a de facto relationship with Fiona. 

[31] That however is still not ostensibly the case because of the definition of “de facto relationship”. As set out earlier, a de facto relationship under the Act requires two persons to be living together as a couple. While s 2D of the Act sets out factors that may be relevant to that inquiry, the fundamental question the Court must answer is not whether a given relationship exhibits any or all of those indicia, but whether the parties lived together as a couple. On their own clear evidence and on the basis of the case stated, neither Lilach nor Brett was living with Fiona “as a couple”. Each was living with her as part of a threesome (or sometimes more). While the requirement to be living together “as a couple” does not preclude another person living with the couple, nor one of the couple living with a third person, it does in my view exclude a scenario where all three are participating in the very relationship at issue. That is not living together as a couple. 

[32] I note that if the “couple” requirement could be circumvented in this case in the proposed manner that would have to similarly apply to a “foursome” or more. There would be no logical limit to the numbers who could be involved in the overlying polyamorous relationship. 

[33] Lilach and Brett rely heavily by analogy on ss 52A and 52B of the Act. They say these provisions recognise that there may be “more than one contemporaneous de facto relationship” for purposes of the Act, which supports the approach they have adopted here. There is no doubt as to the basic proposition, though interestingly such contemporaneous relationships seem to have been found to qualify on very few  occasions. 

[34] Sections 52A and 52B address the priority of competing claims where there are contemporaneous relationships: either a marriage and a de facto relationship or two de facto relationships, respectively. The sections are in substantively identical terms. Section 52B is the relevant provision here and I set it out in full:

52B Priority of claims where 2 de facto relationships 

(1) This section applies in respect of relationship property if— (a) competing claims are made for property orders in respect of that property but in relation to different de facto relationships; and (b) there is insufficient property to satisfy the property orders made under this Act. 

(2) If this section applies, the relationship property is to be divided as follows: (a) if the de facto relationships are successive, then in accordance with the chronological order of the de facto relationships: (b) if the de facto relationships were at some time contemporaneous, then,— (i) to the extent possible, the property orders must be satisfied from the property that is attributable to each de facto relationship; and (ii) to the extent that it is not possible to attribute all or any of the property to either de facto relationship, the property is to be divided in accordance with the contribution of each de facto relationship to the acquisition of the property. 

[35] The plain language of s 52B (and s 52A) does not suggest that it would apply to three contemporaneous relationships, which is the position alleged here (albeit there happens to be no claim arising out of one of them). 

[36] A more significant difficulty in the applicants’ placing reliance on ss 52A and 52B is that these sections do not expand the scope of the Act. Rather they recognise the potential for conflicting claims arising out of the 2002 extension of the Act to de facto relationships and attempt to resolve that conflict. Beforehand the Act applied only to married couples. It is of course unlawful to be married to two people at once, so the possibility of competing claims under the Act did not arise. Extension of the law to de facto relationships opened up that potential. But the key point is that ss 52A and 52B still purport only to establish priority between competing claims where there are two discrete qualifying relationships. 

[37] Leaving to one side the fact there are three relationships here, the question remains whether the relationships at issue are “qualifying” under the Act. For the reasons identified previously, on the face of it, those pleaded here are not. 

[38] I also consider it relevant that while ss 52A and 52B are recognised as troublesome, they would, as discussed below, almost invariably produce a result discordant with the Act if applied to a deconstructed polyamorous relationship. 

[39] There have been a number of cases which have considered these provisions. None, or at-least no reported decisions, seem to have resulted in the provisions being applied. I suspect this is largely because of the difficulty in establishing a qualifying second relationship. As Sargisson AJ, reviewing these cases in Ngavaevae v Harrison, noted:

It would be fair to say that to establish a contemporaneous de facto relationship is likely to be difficult in practice. On my reading of recent authorities, assumptions of exclusivity still linger on in judicial interpretations of a ‘qualifying relationship.

[40] Because such claims have generally foundered at the second relationship point, the question of how ss 52A and 52B actually operate has not been addressed by the Courts. Both academics, and the Law Commission, also having identified no examples of application of these provisions, have expressed concerns as to how they would work:  

[...] the draft provisions on which sections 52A and 52B are based were developed in the context of succession law. They were not designed to be inserted into the PRA or to apply to situations involving three (surviving) people. As a result, several problems arise when applying sections 52A and 52B within the PRA framework [...] . 

[41] The acknowledged difficulties with application of these provisions do not encourage a broad interpretation of the Act in reliance on them, even if it were available. 

[42] Ms Taefi says that, in this particular case, while the Court can draw on 52B for jurisdiction, it would not be necessary to actually apply the section because Lilach and Brett are only claiming one-third each. They have adjusted their case to fit as it were. There would be no need to prioritise the claims because there would be sufficient property to meet the orders as sought, in terms of s 52B(1). 

[43] However, that approach is not accepted by Fiona and in any event the Court would have to apply the provisions of the Act, not some broad notion of what might be fair. 

[44] On my view of the application of s 52B, it would lead to a result materially different to that claimed. As might be expected where the relationship is in reality polyamorous, there would be only one family home, in this case the Kumeu property. Each of Lilach and Brett would have to bring or be treated as bringing a separate proceeding. Applying the presumption of equal division, the Court would likely order in each proceeding that each partner was entitled to 50 per cent each. That would mean that Fiona was entitled in total to 100 per cent (50 per cent in each case) and Brett and Lilach 50 per cent each. There would be insufficient property to satisfy the orders in terms of s 52B(1)(b), and the home could not be said to be “attributable” to either de facto relationship in particular in terms of s 52B(2)(b)(i), whatever meaning is given to that word. Therefore, under s 52B(2)(b)(ii) the property would have to be divided in accordance with the contribution of each de facto relationship to the acquisition of the property. If each de facto relationship is assumed to have contributed equally, and it is difficult to see how it would not be given Fiona is a member of both relationships, that would result in Fiona’s receiving 50 per cent and Lilach and Brett 25 per cent each. 

[45] This is materially different to Lilach and Brett’s claimed 33 per cent shares, and is materially at odds with the general policy of the Act that couples share the family home equally. Yet, that outcome would likely be standard in respect of a polyamorous relationship. Because the property pool in respect of each dyadic relationship will likely be the same, the same unequal outcome will likely result in respect of all types of relationship property. [46] Ms Taefi submits these difficulties could be circumvented by consolidation of proceedings, but that is procedural only. The Court would still have to consider each case separately. The outcome would be unchanged. 

[47] These problems do not arise to the same extent with couples in contemporaneous qualifying relationships, who, living together as a couple, would generally be living in separate homes, which would therefore be “attributable” to each relationship, such that division would fit better with the scheme of the Act. There could still be cases, as Ms Taefi argues, which have a result similar to the present. She gave the example of one partner spending lengthy periods overseas and in their absence a third person moving in with the partner at home and living with them as a couple. She gave another example of a live-in caretaker having a long-term relationship with one or other of the partners living in a house. These cases would however be extremely rare. 

[48] In my view the likely outcome of the division process in a case such as the present speaks strongly against expanding the application of the Act by analogy to s 52B, rather than in favour of it. 

Academic and other commentary on polyamory and the Act 

[49] Ms Taefi referred me to academic commentary which suggests that a polyamorous relationship can be approached in the way the claimants argue. However, I have not found any of the commentary to be of particular assistance. Counsel for Brett referred me in particular to Professor Henaghan’s discussion of the treatment of multiple relationships on death, in relation to which the Professor suggests: A gap in the definition of a de facto relationship is the situation where three people live together in a “ménage à trois”. This is not literally living together as a “couple”. It is living together as a “threesome”. Such relationships are not common, but they do create a problem in terms of the Act. The most likely practical classification for such relationships is to treat them as two contemporaneous relationships. 

[50] It is clear from the brevity of this passage that these are thoughts in passing. While an intuitive response to the “problem in the Act” is to divide relationships into dyadic couples, this does not bear close scrutiny for the reasons given above. Furthermore, I do not consider it clear the Professor had in mind a case such as the present. He refers to a “threesome”, but also to treating that relationship as “two contemporaneous relationships”, when dividing a threesome into its dyadic elements produces three couples, as noted above. It is possible that by “threesome” and “ménage à trois” the Professor was referring to a case like the example of the live-in caretaker described above, where reference to two contemporaneous relationships is apt. 

[51] I note that the Law Commission, in their recent review of the Act, stated that it does not apply to relationships between three or more people. Lilach and Brett’s argument is of course more nuanced, but the Commission refers to the same fundamental considerations I noted at the outset of this judgment, and which also apply to the constituent relationships under s 52B:  The PRA is premised on the notion of "coupledom". It applies only to marriages, civil unions and de facto relationships that are intimate relationships between two people. The PRA does not apply to intimate relationships between three or more people (multi-partner relationships). 

The argument for liberal interpretation and reform 

[52] Whether the Act should be “premised on the notion of ‘coupledom’” is of course another matter. In this regard, the Law Commission observed that:  

Multi-partner relationships may share many of the hallmarks of a qualifying relationship, such as common residence, raising children together, financial dependence or interdependence, ownership, use and acquisition of property, mutual commitment to a shared life and the performance of household duties. Excluding multi-partner relationships that are functionally similar to qualifying relationships from the PRA may therefore be difficult to justify. 

[...] Two members of the public [who made submissions to the Commission] described diverse relationship and family structures that differ from the traditional couple structure and nuclear family. They felt that, as diverse structures become more common, legal recognition and rights need to be available. They noted that the current law strongly favours the 'primary' couple who may be married or in a civil union and largely excludes any secondary partners who may still contribute significantly to the family. One person noted that the current law provides for multiple relationships but that these tend to be interpreted as illicit 'cheating' relationships when the reality can be more consensual and nuanced than that. 

[...] A broader theme from Community Law’s submission was that the polyamorous community wanted a clear way to have their relationships recognised by the law when they desired those relationships to be recognised. 

[53] Appealing to similar sentiments, counsel for both Lilach and Brett submit that the Act ought to be interpreted liberally, referring inter alia to Sargisson AJ’s observation that:

The Act is social legislation: it reflects, or at least should reflect, contemporary social mores. The Act, and its judicial interpretation, must therefore be responsive to developments in social mores. In that regard, these are interesting times. The Law Commission observes that “relationships are now much more diverse and this diversification is expected to continue”. In fact, ‘unorthodox’ relationships are more often than not the ones that end up under the judicial microscope. [...] [...] at least in principle, the Act makes room for situations such as we find in this case, which the court must be careful not to down play in favour of personal bias. 

[54] Sargisson AJ’s comments were made in respect of the limited application to date, as noted above, of the contemporaneous relationship provisions because of apparent judicial reluctance to find the second relationship to be qualifying. I agree that the Act is a liberal piece of legislation and should be interpreted in a way that achieves its liberal purpose. In this respect, I acknowledge that the Act was amended in 2002 to broaden significantly the range of qualifying relationships and that a number of different relationships are now encompassed by the Act in addition to the married couples to whom it used to exclusively relate. 

[55] Those who have decided to live in polyamorous relationships have an understandable desire, as indicated by the submissions received by the Law Commission, and by this case, for the clarity that recognition of their relationships within the statutory scheme might offer. As also emerges, at least some submitters believed that would offer their relationships a degree of legitimacy in the eyes of society at large which they currently do not possess. As the Commission identified, excluding multi-partner relationships that are functionally similar to qualifying relationships (and in this case of longer duration than many) may be difficult to justify. 

[56] Nonetheless, Parliament has premised the Act on the notion of coupledom, as the scheme of the Act makes clear. Whether this is difficult to justify as a matter of policy is a matter for Parliament. Statutory interpretation must always have regard to the text and scheme of the Act in question. 

[57] Reform of the sort required by this case cannot be accomplished through the Courts. While many relationships are complex, polyamorous relationships are likely to be even more so. As the Commission has noted:  

There are [...] a number of practical considerations that would need to be addressed if a property regime were to be extended to multi-partner relationships. Policy would need to be developed on which relationships should be captured, whether the regime should be opt in or opt out and what the property entitlements should be. Careful consideration would also need to be given to the implications of recognising multi-partner relationships for other areas of the law. The PRA is premised on an intimate relationship between two people, and we consider that this should also be the premise of the new Act. 

Hinton J comments in parenthesis

I record, for completeness, that the claimants also advanced an argument, as I understand it, that this distinction discriminates between polyamorous and monogamous couples on the prohibited grounds of family status, as described in s 21(1)(l)(iii) of the Human Rights Act 1993, and that an interpretation consistent with that Act’s prohibition on discrimination on that ground should be preferred. As I identify, there is a forcible policy argument that distinction should not be drawn. However, inconsistency with the policy of the Human Rights Act 1993 is not, without more, a basis for departing from the clear effect of the statutory scheme and language of the Property (Relationships) Act 1976. regime to multi-partner relationships would be a fundamental shift in policy and should be considered within a broader context involving more extensive consultation about how family law should recognise and provide for adult relationships that do not fit the mould of an intimate relationship between two people.

Equity

Hinton J concludes

[58] For all of the above reasons, not only does the Act on its face not apply to a polyamorous relationship such as the parties’, but it would be unworkable to stretch the legislation to ‘fit’ this case. 

[59] This issue having arisen by way of a question of law referred to this Court, I am required to remit the matter to the officer who stated the case together with the opinion of the Court. I answer the restated question of law as follows: The Family Court does not have jurisdiction to determine the property rights of three persons in a polyamorous relationship under the Property (Relationships) Act 1976, nor does it have jurisdiction to do so by dividing the polyamorous relationship into dyadic parts. 

[60] The position will be different if as a matter of fact more than two people are cohabiting but can properly be described as living together as couples. That is not the case in a polyamorous relationship in the sense used here. 

[61] I conclude by saying that the claimants here are not without remedy. The issues between them can be addressed at equity. it is incomplete, would be relevant in that context. It will be a matter for the Judge hearing the case, but in my view it would be appropriate to pay regard to the principles expressed in the Act, such that judge-made law properly develops in response to the guidance offered by statute law. After all, as noted above, the relationship here has many of the hallmarks of a qualifying relationship, albeit, fatally in terms of the guidance offered by statute law. Most of the evidence filed, acknowledging application of the Act, one between three persons. Development of the law informed by the principles of the Act may help those in polyamorous relationships and afford them some clarity as to their property arrangements pending any future legislative review.

Enrichment

'Unjust Enrichment in Australia: Whats Is(n’t) it? Implications for Legal Reasoning and Practice' by Kit Barker in (2020) 43(3) Melbourne University Law Review comments

This paper provides an up-to date account of the nature and status of the idea of unjust enrichment in Australia, noting recent changes in the composition and attitudes of the High Court and the widespread confusion that exists amongst legal practitioners about the the way in which such claims should be pleaded in practice. 

The paper articulates and distinguishes between five different roles that unjust enrichment might play in modern legal reasoning, namely as : (i) a purely moral principle; (ii) a legal principle extrapolating from existing legal rules that can be used to interpret and develop those rules; (iii) a distinct category of private law; (iv) an analytical framework that can be used to understand and structure a variety of restitutionary claims and (v) a dispositive ’cause of action’ that can be pleaded in its own terms without reference to more detailed legal rules. 

The piece aims to provide a clearer picture of both what unjust enrichment is and and – equally importantly – what it is not in Australia, the key finding being that the the first and last of the identified roles are clearly ruled out, but that that there is much greater openness to the other possibilities. 

A clearer view of the scope and function of the concept in legal reasoning will lead, the piece suggests, to a more confident acceptance, and coherent use, of the idea of unjust enrichment by courts. It also has key implications for the pleading of restitutionary claims, some of which are articulated and explored.

Digital Platforms Regulation

Rescuing the dominant Australian media groups? The ACCC has released a concept paper on a Mandatory News Media Bargaining Code, following up the major Digital Platforms report noted elsewhere in this blog.

The ACCC states

On 20 April 2020, the Australian Government announced that it had directed the ACCC to develop a mandatory code of conduct to address bargaining power imbalances between Australian news media businesses and digital platforms. The government has asked that a draft mandatory code be released for public consultation before the end of July 2020, with a final code to be settled soon thereafter. The ACCC recognises that bargaining power imbalances exist in other contexts, including in other commercial relationships involving digital platforms. However, the production and dissemination of news provides broad benefits to society beyond those individuals who consume it. The proposed bargaining code is intended to address bargaining power imbalances between Australian news media businesses and digital platforms in order to ensure that commercial arrangements between these parties do not undermine the ability and incentives for news media businesses to produce news for Australians. 

The draft mandatory code of conduct to address bargaining power imbalances (the bargaining code) is being developed by the Australian Competition and Consumer Commission (ACCC) in close consultation with the Department of the Treasury (Treasury), and the Department of Infrastructure, Transport, Regional Development and Communications (DITRDC). 

The ACCC is seeking the views of relevant stakeholders to inform the development of the bargaining code through a consultation period on this concepts paper scheduled for 19 May to 5 June 2020. This concepts paper is intended to guide the consultation process by clarifying the issues to be included in the draft bargaining code, identifying and exploring options for addressing these issues, and seeking stakeholder feedback by asking a number of specific questions about how these options may be implemented in the code. 

The identification and explanation of issues in this concepts paper is based on:

• the research and findings of the ACCC’s Digital Platforms Inquiry (DPI), including submissions made by stakeholders during the course of that Inquiry 

• submissions made by stakeholders during the course of Treasury’s 2019 consultation on the DPI’s recommendations, and 

• information provided by stakeholders to the ACCC during the course of negotiations to develop a voluntary news media bargaining code in early 2020 (a process that has now been superseded by the development of the bargaining code).

We expect that news media businesses’ and digital platforms’ responses to the concepts paper will also reflect the discussions held between them during negotiations as part of the previous voluntary code development process. 

The ACCC notes that while some of the discussion in this paper has been informed by confidential submissions made during these previous processes, no confidential material has been disclosed or attributed unless agreed to by the relevant parties. 

Where this paper refers to ‘digital platforms’, this should be read to mean only the services provided by Google and Facebook for the purpose of the draft bargaining code. This is because the Final Report of the DPI (DPI Final Report) found that Facebook and Google were the digital platforms currently benefitting from a significant imbalance in bargaining power in their commercial negotiations with Australian news media businesses. As the digital platform and news media industries continue to evolve, a significant bargaining power imbalance may also extend to news media businesses’ commercial negotiations with other digital platforms. If this occurs, it may be appropriate to extend future iterations of the bargaining code to these other platforms. 

 The ACCC goes on to note

the fast pace of change to the technology and business models used by news media businesses, Google and Facebook. This creates challenges in identifying solutions that are able to address current and future issues arising from the commercial relationships between news media businesses and digital platforms. On this basis, the consultation questions in this concepts paper provide stakeholders with the opportunity to update the ACCC on any developments since the publication of the DPI Final Report. 

The ACCC is not proposing to re-examine the core findings of the DPI Final Report, and this consultation process is not intended to encourage stakeholders to re-submit specific claims already considered by the ACCC. However, we note that some areas of the concepts paper revisit particular proposals that were considered, but not endorsed, in the DPI Final Report. We have done this to canvass the full range of options available in addressing particular issues, including issues that stakeholders have previously identified as important, or issues that have continued to be considered in other jurisdictions overseas. 

This concepts paper does not represent the views of the Australian Government.

 The paper asks the following questions

  Scope of the bargaining code 

1. How should ‘news’ be defined for the purpose of determining the type of content that will be subject to the bargaining code? 

2. How can a bargaining code ensure that both news media businesses and digital platforms can easily and objectively identify the content subject to the code? 

3. Would it be appropriate for the bargaining code’s definition of ‘news content’ to capture material:  with the primary purpose of investigating, recording or providing commentary on issues of interest to Australians, and  that is subject to the professional standards set by a relevant journalism industry body, journalistic standards set in a relevant media industry code, or equivalent journalistic standards set by an individual news media business? 

Digital platform services to be covered by the code 

Regarding the list of current services, the ACCC seeks stakeholder feedback on whether the bargaining code should apply to the use of news content by the following products and services in addition to Google Search and Facebook News Feed: 

• Google News 

• YouTube (owned by Google) 

• AMP (closely associated with Google, including through hosting on Google cache)  

• Google Assistant voice activation services and related services provided through ‘Google Home’ hardware and home automation devices 

• Android TV 

• Google’s ad tech intermediary services (noting that potential competition issues associated with such services are currently subject to the ACCC’s separate Digital Advertising Services Inquiry, which is scheduled to conclude by August 20213) 

• Facebook Instant Articles 

• Facebook Watch (Facebook’s in-platform video service, which already carries some Australian news content) 

• Instagram (owned by Facebook) 

• WhatsApp (owned by Facebook) 

• Facebook News Tab (yet to be launched in Australia, but which commissions and publishes news content in a separate ‘tab’ to the main Facebook News Feed, and which is accessible through Facebook’s main website and mobile app). 

4. Would a principles-based, or list-based approach be preferable in determining which digital platform services are captured by the bargaining code? 

5. If a list is referenced in the bargaining code, what amendments should be made to the list below?

• Google Search 

• Google News 

• YouTube 

• AMP (cached on Google’s servers) 

• Google Assistant voice activation services and related services provided through ‘Google Home’ hardware and home automation devices 

• Android TV 

• Facebook News Feed 

• Facebook Instant Articles 

• Facebook Watch 

• Instagram 

• WhatsApp 

• Facebook News Tab 

6. How might a bargaining code include mechanisms to incorporate newly emerging and newly relevant products and services in the future? 

7. What are the necessary elements for a bargaining framework to effectively address the bargaining power imbalance between news media businesses and each of Google and Facebook? 

8. How effective would the following bargaining frameworks be in achieving appropriate remuneration for news media businesses for the use of news content by each of Google and Facebook: 

• bilateral negotiation, mediation and arbitration 

• collective bargaining 

• collective boycott or ‘all in/none in’? 

9. Are there major practical issues involved in the implementation of any of the bargaining frameworks listed in Question 8 above? If so, how might such practical issues be overcome? 

10. Are other bargaining frameworks more likely to effectively address the bargaining imbalance between news media businesses in Australia and each of Google and Facebook? 

11. Would it be useful for the bargaining code to include a requirement for parties to negotiate ‘in good faith’? 

12. Should the bargaining code include requirements (such as time limits) and/or guidance on how negotiations should be conducted? What requirements or guidance are likely to be productive? What requirements or guidance are likely to be counterproductive? 

13. How relevant are the following factors to determining appropriate remuneration for news media business:

• the value of news to each digital platform 

• the value a news media business derives from the presence of its news on each digital platform 

• the value of the availability of news on each relevant digital platform to digital platform users? 

14. Would it be appropriate for commercial negotiations conducted under the bargaining code to have regard to the cost of producing news content? 

15. How might any of the factors listed in Questions 13 and 14 above be quantified and/or treated in the course of negotiations between parties? 

16. What other factors may be relevant to determining appropriate remuneration for news media businesses? 

17. Are there any relevant ‘market’ benchmarks that may assist in the determination of appropriate remuneration? 

18. How might the bargaining code define ‘use’ for the purpose of any mechanisms facilitating negotiation on payment for the use of news content? 

19. How might any bargaining framework implemented by the bargaining code deal with the full range of businesses present in the Australian news media industry, including smaller, local and regional news media businesses and not-for-profit news media organisations? 

Sharing of user data 

20. What factors do Google or Facebook consider when determining the type or amount of user data that they share with third parties under their existing data-sharing policies? 

21. What specific user data do news media businesses already receive from each of Facebook or Google in relation to users’ engagement with news media business content and what further user data would news media businesses like to receive from each of Facebook and Google? 

22. Should the bargaining code include minimum data-sharing obligations for each of Google and Facebook? If so, what should these minimum data-sharing obligations require? 

23. How should data-sharing and revenue-sharing arrangements facilitated by the bargaining code interact, given both would be intended to recognise that digital platforms obtain a benefit from content produced by news media businesses? 

24. How should costs incurred by digital platforms in collecting and sharing data with news media businesses be recognised in data-sharing arrangements facilitated by the bargaining code? 

25. Would it be appropriate for the bargaining code to address data sharing by putting in place commitments requiring ‘good faith’ negotiations on this subject between news media businesses and each of Google and Facebook? 

26. Would it be appropriate for any data-sharing requirements in a bargaining code to be limited to data collected during the course of users’ direct interaction with each news media business’s content? Should this include data relating to aggregate audience numbers, audience demographics and audience interactions, such as how many and which users clicked on, ‘liked’, ‘shared’ or otherwise interacted with the content of that particular news media business? What other specific metrics might be relevant? 

27. Would it be appropriate for each of Google and Facebook to provide news media businesses with access to additional data associated with individual users (based on anonymised user IDs), such as whether a visit to a news media business’s website follows previous interaction with this business’s content on a digital platform? If so, what steps should be taken to ensure an individual’s privacy is protected? 

28. Would it be appropriate for each of Google and Facebook to provide each news media business with a list of all types of user data they collect through users’ engagement with their news content on their services, such as data collected on users accessing content published in the AMP and Instant Articles formats? 

29. If the bargaining code were to include any commitments related to data sharing, which of the following services provided by Google and Facebook should those commitments apply to: 

• Google Search 

• Google News 

• YouTube 

• AMP 

• Google Assistant voice activation services and related services provided through ‘Google Home’ hardware and home automation devices 

• Android TV 

• Facebook News Feed 

• Facebook Instant Articles 

• Facebook Watch 

• Instagram 

• WhatsApp 

• Facebook News Tab? 

Advance notification of algorithm changes 

30. What would be an appropriate threshold for identifying a significant algorithm change which requires advance notice to be given by each of Google and Facebook, and what criteria should be used to determine this threshold? 

31. How much notice should be provided by each of Google and Facebook for significant algorithm changes? How can this notice period be set in order to not unreasonably limit digital platforms’ flexibility to implement algorithm updates that may benefit consumers?  

32. What information do each of Google and Facebook currently provide to news media businesses about the ranking and display of news, particularly with respect to ranking algorithms for content and changes to these algorithms? 

33. What type of information would help news media businesses better understand and adapt to significant changes to ranking and display algorithms? 

34. Under what circumstances might it be acceptable (or socially desirable) for each of Google and Facebook to not provide advance notice of significant algorithm changes? 

35. Would it be appropriate for a bargaining code to include:

• mechanisms requiring digital platforms to provide news media businesses with advance notice of algorithm changes that may significantly affect the ranking and display of news at least X days in advance of implementing these changes, and/or 

• mechanisms requiring digital platforms to notify news media businesses of algorithm changes that may significantly affect the ranking and display of news within X days of making a decision to implement such changes, and/or 

• relevant exemptions or flexibility in complying with any advance notification requirements where the digital platform considers urgent algorithm changes must be made in the interests of its users? 

Prioritising original news content 

36. What benefits, if any, did Australian news media businesses experience following Google’s adjustment to its ranking algorithm to prioritise original news in September 2019? 

37. In order to prioritise original news content on each of Google and Facebook, would it be appropriate for the bargaining code to include:

• mechanisms requiring news media companies to identify and advise platforms of material that is original news content, so that this could be taken into account by platforms in prioritising or communicating original content to users, and/or 

• a set of broad principles governing how digital platforms prioritise original news content through their ranking and display algorithms, and/or 

• mechanisms setting prescriptive requirements governing how digital platforms prioritise original news content? 

38. How could ‘original news content’ be defined and identified under the bargaining code, and who should be responsible for defining or identifying this content? 

39. Should any bargaining code requirement to prioritise original content distinguish between original investigative journalism and other types of news content? If so, how could this distinction be drawn? 

Treatment of paywalled news content and alternative news media business models 

40. Should the bargaining code contain any mechanisms requiring each of Google’s and Facebook’s ranking and display algorithms not to penalise the use news media business models that incorporate paywalls and subscription fees? 

41. How might any relevant mechanisms in the bargaining code ensure treatment of paywalled news content is fair, without interfering with the general operation of ranking algorithms or unreasonably limiting consumers’ access to free news? 

Display and presentation of news on digital platforms 

42. What level of control do news media businesses have over how news is displayed on the services provided by each of Google and Facebook? 

43. What restrictions on the display and presentation of news content on digital platforms do you consider necessary, and why? 

44. Which specific digital platform policies and practices affecting the display of news have a negative impact on the business models of news media businesses and/or their ability to monetise content? 

45. How might a bargaining code strike the appropriate balance between:

• providing news media businesses sufficient control over presentation and display of news content 

• providing consumers with easy access to news content, and 

• protecting the user experience on digital platforms, including providing digital platforms with the flexibility to improve this user experience? 

46. Should a bargaining code include:

• mechanisms requiring digital platforms to enter into good faith negotiations with individual news media businesses on the display and presentation of their news content, and/or 

• mechanisms requiring digital platforms to provide news media businesses with advance notice of and/or consultation on changes to policies and practices affecting the display and presentation of news, and/or 

• mechanisms setting out either principles-based or prescriptive requirements for digital platforms to grant news media businesses a greater degree of control over display and presentation of content than is granted to other content creators? 

Control over advertising directly associated with news 

47. What specific controls do news organisations currently have over the use of advertising directly associated with news on the services provided by each of Google and Facebook? 

48. Which restrictions on advertising directly associated with news content are necessary for each of Google and Facebook to impose, and why are these restrictions necessary? 

49. Which restrictions on the use of advertising directly associated with news do news media businesses believe constrain their ability to monetise their content? 

50. How might a bargaining code strike the appropriate balance between: 

• supporting the ability of news media businesses to monetise news through advertising directly associated with news 

• consumers being adequately informed about the nature of sponsored content, and 

• preserving the user experience of consumers accessing news through digital platforms? 

51. Should a bargaining code include:

• mechanisms requiring digital platforms to enter into good faith negotiations with individual news media businesses on the use of in-content advertising, and/or 

• mechanisms requiring digital platforms to provide news media businesses with advance notice of and/or consultation on changes to policies and practices affecting in-content advertising technical standards for formats such as AMP or Instant Articles, and/or 

• mechanisms setting out either principles-based or prescriptive requirements for digital platforms to grant news media businesses a greater degree of control over in-content advertising than is granted to other content creators? 

Flagging ‘quality’ journalism 

52. How could the bargaining code best ensure a contact point at a digital platform provides timely responses to issues and concerns communicated by news media businesses? 

53. Would a point of contact outside of Australia be able to sufficiently address concerns of news media businesses in a timely manner? 

54. Aside from availability and responsiveness of points of contact, what other obligations or guidance should the bargaining code include about ensuring open communication between both Google and Facebook and news media businesses? 

55. What potential practical issues may arise from requiring contact points? 

56. Are there any other means of communication that might usefully be included in the provisions of a bargaining code? 

Dispute resolution and enforcement 

57. What would be the most appropriate and effective mechanisms for resolving disputes about, and enforcing, compliance with the bargaining code? 

58. What enforcement mechanisms should be included in the code? Should the code include pecuniary penalties? 

59. Should the bargaining code include a compulsory review mechanism? If so, when and how often should this compulsory review occur?

Linguistics

'Corpus Linguistics and Vico’s Lament: Against Vivisectional Jurisprudence' by Francis J Mootz III in (2020) 20(3) Nevada Law Journal 845 comments

In this essay I argue against the deep impulse that motivates the contemporary turn to corpus linguistics precisely because this enticing ‘new’ method reinscribes the profoundly misguided theoretical premise of modern law that there are ontological and epistemological distinctions between the law and its application to a specific case. In his oration at the commencement of the 1708 term at the University of Naples, Giambattista Vico lamented the abandonment of rhetorical understanding and the misguided embrace of Cartesian analysis as the model of genuine knowledge. The past three centuries have borne witness to this slavish adherence to a focus on objective and empirical inquiry, neglecting the unavoidable role of rhetorical persuasion in legal meaning. My essay proceeds in the spirit of Vico’s great oration. I urge that, at long last, we should return to a conception of legal meaning as rhetorical knowledge.

'Corpus Linguistics as a Method of Legal Interpretation: Some Progress, Some Questions' by Lawrence M Solan in (2020) International Journal for the Semiotics of Law – Revue internationale de Sémiotique juridique comments

Corpus linguistics is becoming a respected method of statutory and constitutional interpretation in the United States over the past decade, yet it has also generated a backlash from a group of scholars that engage in empirical work. This essay attempts to demonstrate both the contributions and the risks of using linguistic corpora as a primary tool in legal interpretation. Its legitimacy stems from the fact that courts routinely state that statutory terms, when not defined as a matter of law, are to be given their ordinary meaning. Judges have responded to this challenge, with the assistance of the linguistics community, by using corpora to determine which meanings are ordinary. However, legal analysts have not determined exactly what makes one meaning ordinary and another not ordinary. This gap has led to a level of disagreement in the field. Moreover, while linguists who engage in corpus linguistic analysis typically emphasize the importance of context, the legal application is peculiarly context-free, in keeping with legal philosophies that eschew reliance on reference to a law’s purpose and the intent of the legislature that enacted it. This move adds a political dimension to corpus analysis as a means of legal interpretation. Yet, the article concludes that by relying on a blend of general and specialized corpora, the legal system can substantially reduce the problem of contextualization, as some linguists and practitioners have already recognized.