COVID Activewear?

Also protects against witches, aliens, ectoplasm and other nasties?

What were they thinking at national retailer Lorna Jane Pty Ltd, which has been advertising that its 'anti-virus activewear' 'prevents and protects against infectious diseases', implicitly effective against COVID-19, bubonic plague and so forth.

The Therapeutic Goods Administration yesterday issued three infringement notices totalling $39,960 to  Lorna Jane  for alleged unlawful advertising in relation to COVID-19.

 This kind of advertising could have detrimental consequences for the Australian community, creating a false sense of security and leading people to be less vigilant about hygiene and social distancing

Lorna Jane launched its 'LJ Shield exclusive technology' with the claim that it had worked for two years to develop a 'chemical-free treatment that when applied to activewear, protects wearers against viruses and bacteria'. The amazing Shield - leggings and tops rather than a facemark (or even the alfoil beanie embraced by 5G conspiracists) 'keeps you protected from viruses and germs'. Uh huh. 

LJ Shield breaks through the membrane shell of any toxic diseases, bacteria or germs that come into contact with it, not only killing that microbe but preventing it from multiplying into anymore. 

Any bacteria that comes in contact with the fabric is terminated when it comes in touch with the LJ Shield particles.

The TGA alleges that Lorna Jane represented its 'anti-virus activewear' for therapeutic use and therefore believes that it is a therapeutic good within the meaning of the Therapeutic Goods Act 1989 (Cth).

Advertising therapeutic goods is subject to regulations administered by the TGA, which has become much more vigorous as part of the national response to COVID.

The advertisement referred to therapeutic goods that were not included in the Australian Register of Therapeutic Goods (ARTG), a requirement before they can be lawfully supplied or advertised in Australia. Under the Act  any reference to COVID-19 (and related terms) in promotion of the types of goods is a restricted representation (ie a reference to a serious form of a disease, condition, ailment or defect).

Use of restricted representations in advertisements for therapeutic goods is unlawful without a prior formal approval or permission from the TGA. It is also a breach of the Therapeutic Goods Advertising Code (No. 2) 2018 to promote a therapeutic good as being safe, harmless or without side-effects.

NSW RDA inquiry

We are still waiting for the Commonwealth Government's response to the 'Religious Freedoms Bill' inquiry.

The NSW legislature's Joint Select Committee on the Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020 is now inquiring into the Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020 (NSW), introduced by Mark Latham, former ALP leader and now Pauline Hanson party representative in the NSW Upper House. The Bill is co-sponsored by Fred Nile.

The Committee's Terms of Reference are to -

 inquire and report into the Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020, including whether the objectives of the bill are valid and (if so) whether the terms of the bill are appropriate for securing its objectives. ...

[and] have to regard to:

(a) Existing rights and legal protections contained in the Anti-Discrimination Act 1977 (NSW) and other relevant NSW and Commonwealth legislation; 

(b) The recommendations relevant to NSW from the Expert Panel Report: Religious Freedom Review (2018); 

(c) The interaction between Commonwealth and NSW anti-discrimination laws and the desirability of consistency between those laws, including consideration of (i) The draft Religious Discrimination Bill 2019 (Cth) which has been released for public consultation, and (ii) The Australian Law Reform Commission’s reference into the Framework of Religious Exemptions in Anti-discrimination Legislation.

The Bill is stated as having the following Objects -

 The object of this Bill is to amend the Anti-Discrimination Act 1977 (the Act) as follows—

(a) to establish principles of the Act for the purpose of reconciling conflicting human rights and anti-discrimination provisions, using international conventions and other instruments, 

(b) to define religious beliefs and activities in a comprehensive and contemporary way, making religious freedoms and the fair treatment of believers and non-believers possible, 

(c) to prohibit discrimination on the ground of a person’s religious beliefs or religious activities in work and other areas, so that religion has protections equal to other forms of discrimination in NSW, 

(d) to prohibit discrimination against people who do not have any religious conviction, belief, opinion or affiliation, 

(e) to provide that a religious ethos organisation is taken not to discriminate on the ground of religious beliefs or religious activities by engaging in certain conduct because of the doctrines, tenets, beliefs or teachings of the religion of the organisation, so as to recognise that religion is integral to the existence and purpose of these organisations; and that religious and associational freedoms are fundamental to a free and democratic society. 

(f) to make it unlawful for an employer, qualifying body or educational authority to restrict, limit, prohibit or otherwise prevent people from engaging in a protected activity, or to punish or sanction them for doing so, or for their associates doing so, 

(g) to ensure the provisions of the Bill extend to discrimination concerning applicants and employees, commission agents, contract workers, partnerships, industrial organisations, qualifying bodies, employment agencies, education, goods and services, accommodation, registered clubs and State laws and programs, and 

(h) to limit exceptions to this part of the Act to those specified, such as for religious ethos organisations and genuine occupational qualifications, rather than encouraging tribunal activism.

Specific provisions are referred to in the Explanatory Statement

Schedule 1[1] establishes the principles of the Act, including that the Minister, Board, President, Tribunal and Courts have fundamental regard to certain international instruments in carrying out functions under the Act and that the provisions of the Act are used in a way that is consistent with the purpose and meaning of those international instruments (the 1966 International Covenant on Civil and Political Rights, the 1981 UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, and the 1985 Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights). That is, any limitation imposed on a religious believer’s or non-believer’s manifestation of their belief or non-belief under the Act (including through the ‘reasonableness test’ for indirect discrimination in Part 2B) must not encroach on the protections afforded to that person in international law. These include that only ‘necessary’ limitations may be imposed pursuant to certain limited grounds, that any such limitations must ‘pursue a legitimate aim and be proportionate to that aim’ and be applied using ‘no more restrictive means than are required for the achievement of the purpose of the limitation’. 

Schedule 1[2] inserts proposed Part 2B (proposed sections 22K–22Z) into the Act which makes it unlawful to discriminate against a person on the ground of the person’s religious beliefs or religious activities, or against a person of no religious conviction, belief, opinion or affiliation, in the circumstances described in the Part. 

Division 1 of the proposed Part (proposed sections 22K–22L) contains specific provisions relevant to the definitional understanding and interpretation of the proposed Part. 

Proposed sections 22K and 22KA define the terms religious activities (including an activity motivated by a religious belief, but not an activity that would constitute an offence punishable by imprisonment), religious beliefs (having or not having a religious conviction, belief, opinion or affiliation) and religious ethos organisation (private educational authorities, registered charities and other bodies conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion) for the purposes of the proposed Part and specifies what a person’s beliefs include and when a person is taken to hold a religious belief and to genuinely believe a belief. The ‘sincerity test’ (genuinely believes) gives effect to the approach consistently adopted by the highest courts in Australia (specifically in Church of the New Faith v Commissioner for Payroll Tax (Vic)), the United Kingdom, United States and Canada as a means to avoid courts determining matters of religious doctrine or disputation. This test does not interfere with the ability to impose legitimate limitations on religious activities, as allowed elsewhere in the Act and the proposed Part. 

Proposed Section 22KB provides for a religious belief or activity to include past, future and presumed religious belief or activity. 

Proposed section 22L sets out what constitutes discrimination on the ground of religious beliefs or religious activities, defining discrimination in a manner consistent with other parts of the Act. As with the remainder of the Act, it extends the grounds on which discrimination is unlawful under Part 2B to discrimination on the basis of characteristics that appertain generally to persons with particular religious beliefs or activities or characteristics which are generally imputed to persons of that religious belief or activity. This clarifies that the acts flowing from a person’s religious beliefs are not a component of the circumstances of the complaint; they are instead characteristics that attach to persons of religious belief. Thus it assists in avoiding the unintended conclusion that if an employer asserts it would discipline both a religious and non-religious employee for doing and/or saying the same thing, there must have been no discrimination against the person of religious belief. 

Proposed section 22M provides that a religious ethos organisation is taken not to discriminate if it engages in conduct that is required because of the religious susceptibilities of the adherents of the religion, or that is consistent with, or furthers or aids the organisation in acting in accordance with, the doctrines, tenets, beliefs or teachings of the religion (for example, giving preference to persons of the same religion as the religion of the organisation). Importantly, this is an exception, not an exemption. The provision says that when a religious institution acts in accordance with its beliefs, this is not discrimination, as technically described at law. This brings NSW into line with international practice. In part, General Comment 18 of the United Nations Human Rights Committee recognises that “not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate” under the International Convention on Civil and Political Rights. 

Division 2 of proposed Part 2B (proposed sections 22N–22U) prohibits discrimination on the ground of religious beliefs or religious activities in work. 

Proposed section 22N provides that certain conduct, in relation to the religious beliefs or religious activities of an employee, is unlawful. In particular, it will be unlawful for an employer to restrict, limit, prohibit or otherwise prevent an employee from engaging in a protected activity, or punish or sanction them for doing so, or because their associate has done so. It is also unlawful to discriminate against a person by refusing the employee permission to wear a religious symbol or religious clothing during work hours (with exemptions relying on the reasonable circumstances and industry standards of that employment). This provision is modeled on existing protections in Western Australia, the ACT and the Northern Territory. 

Proposed sections 22O and 22P provide that certain conduct, in relation to the religious beliefs or religious activities of applicants, commission agents and contract workers, is unlawful.

Latham's second reading speech states

The purpose of the Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill can be stated in a single sentence: To extend protections against discrimination beyond existing categories of citizenship and identity in New South Wales to people of religious faith and non‑faith. The word "equality" is included in the title to reflect the equal standing to be given to matters of faith and spirituality in the coverage of the State's anti‑discrimination laws. Religious discrimination is an issue no government can ignore. In the past whenever discrimination has emerged in society, governments have legislated to outlaw such practices. This is how Federal and State anti-discrimination Acts emerged and evolved over time to quite rightly protect the rights of the elderly, disabled, carers, women and the transgender and gay communities. All forms of discrimination in society are bad. All forms of discrimination should be outlawed. Yet now the fastest growing form of discrimination in our society is against people of religious faith, especially Christians. We have all seen the high-profile cases of Israel Folau and Margaret Court, outstanding Australians treated like second-class citizens because they take a literal interpretation of theBible—the most important, influential and popular book in history; the book that has given civil society much of its moral code, our understanding of right and wrong; the book that stands today as one of the essential pillars of Western civilisation. Those who quote from theBible should not be hounded from the public square as Folau and Mrs Court have been. All religious faith that respects the sanctity of life and the goodness of the human soul and reaches out to others with the hope of salvation and compassion should be honoured in our society. 

This is true of the clear majority of people who practise Christianity, Judaism, Islam, Hinduism, Buddhism and other organised religions and also atheists and agnostics of good secular faith. We are a stronger society and a stronger community for respecting those beliefs and also acknowledging the incredible voluntary contribution of churches and temples in New South Wales in caring for the poor, the sick, the disabled and the needy over a long period. The origins of the Australian welfare State lie in the mutual help and care by religious associations. Religious rights are not a fringe issue. They are at the heart of our society's origins and values. They are a basic matter of human rights. As clearly stated in Article 18 of the Universal Declaration of Human Rights:

Everyone has the right to freedom of thought, conscience and religion … and freedom, either alone or in community with others and in public or private, to manifest [their] religion or belief in teaching, practice, worship and observance. 

When I refer to the rise of religious discrimination, it is not just in the cases of Mrs Court and Israel Folau. I know of Christians working for the New South Wales Government who say they are scared to admit to their Christianity in the workplace, who feel there is an official policy of inclusion for every letter of the alphabet except C and H. Under this Government, selective diversity policies have been introduced in the public service to ensure certain groups are included. Every letter of the alphabet seemingly has a flag, a network, a special ceremony to affirm and celebrate its identity, except the letters C and H: Christians and heterosexuals. It is a perverse policy of so‑called inclusion to exclude other groups but this is the new State-sponsored practice in New South Wales. It is a sad, ill‑conceived soulmate to other forms of religious discrimination. 

We know the case of the wedding magazine run by Christians that was forced to close down because of third party advertising boycotts. We know of the Coopers Brewery boycott, punishing Christians for sponsoring a debate between Federal MPs on same-sex marriage. We know the case of the senior executive at a New South Wales accounting firm who was forced to resign from the board of the Australian Christian Lobby due to activist campaigning. We know of the Christian medical practitioners stripped of their accreditation for failing to surrender to the gender fluidity movement. We know of the academic sacked at Macquarie University because he was a director of the Lachlan Macquarie Institute Limited, a Christian training organisation. We know of university admittance rules that discriminate against people of faith, especially Muslims and Christians, who refuse to accept the new left‑wing political meaning of "diversity and inclusion". 

We know of the workers fired for standing by their Christian beliefs and refusing to support anything other than traditional male-female marriage. We know of employers trying to control all aspects of their workers' lives, including their religious beliefs away from work. We know of the big corporate sponsors, like Qantas, trying to control sporting codes through the back door and relegate the importance of religious rights. We know of the multinational companies that have refused to allow staff to wear Christian crosses at work as part of their jewellery. And, it must be said, we know of other, longer standing discrimination against other religions, against Jews, against Muslims and against some of the relatively new religious communities in Australia. Each of them is an example of discrimination that warrants passage of the bill.

Digisprudence

'Digisprudence: the design of legitimate code' by Laurence Diver in (2021) 13(2) Law, Innovation & Technology (forthcoming) comments

 This article introduces digisprudence, a theory about the legitimacy of software that both conceptualises regulative code’s potential illegitimacies and suggests concrete ways to ameliorate them. First it develops the notion of computational legalism – code’s ruleishness, opacity, immediacy, immutability, pervasiveness, and private production – before sketching how it is that code regulates, according to design theory and the philosophy of technology. These ideas are synthesised into a framework of digisprudential affordances, which are translations of legitimacy requirements, derived from legal philosophy, into the conceptual language of design. The ex ante focus on code’s production is pivotal, in turn suggesting a guiding ‘constitutional’ role for design processes. The article includes a case study on blockchain applications and concludes by setting out some avenues for future work.

Legal Aid Data Crunching

Apples, oranges and lemons: The use and utility of administrative data in the Victorian legal assistance sector by Hugh M. McDonald, Cosima McRae, Nigel J. Balmer, Tenielle Hagland and Clare Kennedy for the Victoria Law Foundation (2020) comments

‘Evidence based decision making,’ the idea that policy should be informed by rigorously established objective evidence, has become a mantra around the world for both policy makers and service delivery agencies, and no less in Victoria. In the interviews for this project, we encountered an enormous appetite for data and evidence – both from funders and frontline services. Everyone recognises the value it can deliver in efforts to improve access to justice for Victorians.  

In this regard, administrative data is low hanging fruit. Agencies collect it already so it is inexpensive; it is as close to a universal impression of service use as we’re likely to get; and there is often years of data which can be mined for trends and change. Used effectively, service providers get a reliable picture of where the dollars go: who they helped, in what ways, and their responsiveness to change over time. It can be forged into a valuable tool for government and other funders to develop a more sophisticated understanding of legal need and effective responses. So maximising the utility of administrative data makes patent sense.

 This is not what we found. Despite willingness, there were significant issues with accuracy and consistency of data, and barriers in collection and use – inadequate and/or numerous data systems; diverse data requirements for different stakeholders; inconsistent recognition of the value of data collection; mixed staff capability; and for many, a wicked tension between spending tight resources on frontline services and investing in data systems and practice. 

One size never fits all, and different organisations have different data needs, but higher levels of accuracy and consistency would benefit everyone, most particularly Victorians in need of legal assistance.

The report states

What is administrative data? 

Administrative data is information collected and stored as part of the everyday functions of organisations, commonly providing a record of activities, such as the number and types of services. However, it can provide far more than a simple record of transactions, making an important contribution to research and policy. In the legal assistance sector, it has the potential to answer critical access to justice questions. Governments use administrative data to monitor performance against policy objectives, to understand what works in service delivery, and to capture client and service outcomes. Policy makers and researchers globally increasingly appreciate how administrative data can be used as a tool to understand complex social policy settings. Service providers also demand more from their administrative data, as they seek information to help design more effective and efficient services. 

Using administrative data comes with challenges, but also distinct advantages. Administrative data can reveal valuable real time insights into clients or service users and the outcomes services achieve. It can monitor change over time, gather insights on sensitive issues, and capture diverse, often hard to reach subgroups of the population. Since it already exists in organisational and institutional records, using administrative data reduces the burden and cost of additional data collection complements other research methods. 

This report 

To date, the data collected by the Victorian civil justice sector has not been systematically explored. To unlock the potential of administrative data, we must first understand what data exists, in what form and quality, and how it is currently used. The Victoria Law Foundation Data Mapping Project looks at three branches of the Victorian civil justice system: the legal assistance sector; courts and tribunals; and alternate dispute resolution and complaint mechanisms. The aim is to explore civil justice system data and its context. This is a foundational step in understanding its availability, suitability and utility in answering access to justice questions. 

This report details findings from Stage 1, examining the administrative data collected by Victoria’s public legal assistance sector. Specifically:

• what administrative service data is collected 

• the quality of that data – its accuracy and consistency 

• how the legal assistance sector uses administrative service data, and what they want to be able to use it for. 

This was done by interviewing representatives from 29 legal assistance organisations across Victoria, including community legal centres, Victoria Legal Aid and Aboriginal legal services. Other materials, such as client intake forms, were also collected and analysed; and interview responses and collected materials were analysed using qualitative techniques. 

Data inconsistency and inaccuracy 

Data collection and practices across Victoria’s public legal assistance sector varied considerably. Variable data practice was not always a bad thing. There were several examples of strategic, innovative and agile data practices within participating organisations. However, between organisations, what and how data was collected and what systems and practices were used was inconsistent. There was also evidence of broad quality issues, with a minority of participant organisations confident that their data was highly accurate. This inconsistency and inaccuracy preclude credible sector-wide use of administrative data. 

Basic data elements were treated inconsistently. For example, data collection differed on how key demographic and service features were measured and recorded. Inconsistent data practices extended to who entered data and when; how comprehensive entry was; whether and how data entry was checked; as well as the interpretation and application of data standards. Variations meant core components of the legal assistance sector’s administrative data, such as client demographics and services delivered were not consistently recorded. 

Data utility is undermined by poor quality data. Sector-wide legal assistance data will include inaccurate, inconsistent and missing data, which is masked in large aggregated datasets. Inconsistent data and data practice means comparing apples to oranges, with confidence in sector-wide administrative data analysis and comparison misplaced. Inaccurate data introduces lemons, further undermining data utility. Inconsistent and inaccurate data is like trying to compare apples, oranges and lemons. 

Despite efforts to improve legal assistance sector data accuracy and consistency in response to successive reviews and inquiries, the findings show that data quality deficiencies remain. Moreover, investment in improved data and data capability in one part of the sector may be undermined by poor data and practices in another. 

Data use and database limitations 

Individual organisations were using administrative data for a range of functions: to report to funders; make submissions to government and inquiries; plan services; conduct research; and to evaluate services. Many participant organisations had a sound understanding of data strengths and weaknesses, and knowledge of how practices varied amongst organisations. 

There was widespread evidence of administrative data being used in pragmatic and useful ways, including to learn more about clients, services and communities, and to better respond to legal and other need. 

This included collecting data that went beyond reporting requirements, often to monitor and evaluate specific projects or programs, or more fully capture clients’ legal and related needs. However, this data was often collected in discrete spreadsheets rather than using the organisation’s main data system. This was a rational response to database limitations, but typically meant such data was not readily available for broader analysis, resulting in missed opportunities for shared learning from such efforts. 

Some data systems were difficult to modify and interrogate, and legal assistance organisations expressed frustration with their rigidity. Several Victorian legal service providers had recently invested in new data systems and human resources to provide more functionality and meet organisational need. 

Data demands and capability 

Reporting to funders and governments placed a substantial burden on organisations. On average, participating organisations had nine funding streams with separate reporting requirements. Reporting requirements also changed frequently, creating further challenges. The data capability of legal assistance organisations varied significantly, often as a function of size of organisation, with evidence of polarisation in capability. There were several participating organisations which had embarked on innovative service provision and associated data work, including improved monitoring, evaluation and data-led service planning and design. Others had limited time for data beyond compulsory reporting. 

More generally, organisations reported demands for data without commensurate resourcing. Organisations explained that funding for frontline services was more readily available than funding for back-end operations, such as data practices. For some, allocating resources to back-end data and other operations came at the expense of frontline service delivery. For many of these services, this made such allocation impossible. The single biggest barrier to responding to data demands and improving data capability was a lack of dedicated funding and infrastructure to support data practices. 

Capturing complexity and the value of legal assistance 

Participating organisations reported that the administrative data currently collected did not fully gauge the value of work, failing to adequately capture the complexity of clients and matters. Simple service counts did not capture the relative effort required to meet some clients’ legal needs. There was a broad consensus that measuring the impact of legal assistance services was complex and difficult to achieve with available administrative data. 

There was widespread interest in measuring outcomes, broadly defined as a means to demonstrate individual and collective impact. Participants could point to outcome measurement frameworks, which examine the range of contributions legal assistance services might make, but also to the challenges associated with measuring these contributions. Not all outcomes are equally easy to capture, and several barriers were cited, including difficulty defining outcomes, data quality, implementing measures in diverse settings, limitations of data management systems, and the resources required for data collection and analysis. 

There were also broader questions regarding the methodological limits administrative data in measuring outcomes, and the need for complementary research methods to successfully quantify impact. 

A way forward 

A worldwide shift in access to justice policy, from ‘top-down’ institutional perspectives focused on legal problems involving formal processes, to ‘bottom-up,’ focused on the ability of individuals to resolve problems, requires review of the utility of different models of legal assistance services. Where policy shifts, reshaping service priorities and models, data systems and practices must keep pace and shift accordingly. This means that the data foundations need to be sound. At present administrative data fails to meet its potential, though findings indicate a number of ways forward: • Quality data requires standards, protocols and infrastructure in order to get the basics right. Data quality frameworks can assist in this. The movement to measure outcomes places a further premium on data consistency and accuracy. This includes the need for modern, fit for purpose data management systems that reflect the work of services, and meet data collection, reporting, outcome measurement and policy needs. • Quality data requires leadership, collaboration and coordination to marshal and foster cross-sector development. Building a quality evidence base needs strategic thinking and commitment to drive improved data culture and practice. Governments, funders and service providers need an agreed direction of travel and the realistic means to get there. • Quality data requires investment in people and time, in resources and capability. Without funding, building data capability and practices comes at the cost of frontline legal assistance service capacity, presenting an unacceptable dilemma. There is work to be done, but unlocking the potential of administrative data can have wide ranging benefits for governments, funders, policy makers, legal assistance service providers, and ultimately Victorians with civil justice needs.

Rules and the rule of law

'The Rule of Lore in the Rule of Law: Putting the Problem of the Rule of Law in Context' by Paul Burgess in (2020) 12 Hague Journal of the Rule of Law 333 comments

 In this article, I identify a number of commonly accepted assumptions from the literature associated with the Rule of Law and suggest that—whilst the assumptions are accepted as part of the conceptual narrative of the concept—the cogency of the assumptions falters when they are considered collectively. This article represents, in many respects, both a critique of current practices and a rallying cry in relation to future practices. Through illustrating that the form of conceptual change across canonical conceptions of the Rule of Law can impact the relative level of consistency in the assumptions that are used and relied on in the opening of so many Rule-of-Law-focused works, I demonstrate that there must—if we are to provide the strongest possible arguments relating to the contemporary idea of the Rule of Law—be consideration of the actual way in which change has occurred across conceptions. I argue that consideration of collective cogency is necessary for conceptual clarity and illustrate the essentiality of doing so by considering the assumptions in relation to two hypothetical mechanisms of change. This approach illustrates not only the general inconsistency, but also that inconsistency varies between the mechanisms. This variance leads to a fundamental problem: without the identification of the change mechanism that has operated across Rule of Law related ideas, there is no way to assess whether the Rule of Law’s common assumptions are, or can be considered to be, consistent with one another. I also suggest one way to solve this problem.

Burgess argues

In this article, I identify, and question the collective cogency of, a number of familiar and commonly accepted assumptions that form a recurring contemporary narrative in the Rule of Law literature: the Rule of Law is over 2000 years old; there have been a number of canonical Rule of Law ideas; contemporary ideas of the Rule of Law differ to earlier Rule of Law ideas; and, the Rule of Law is a highly, or essentially, contested concept. By illustrating that these assumptions could be seen as inconsistent if change across conceptions of the Rule of Law has occurred in particular way, and as there is little research into the exact nature of change across conceptions, I identify an important problem in the Rule of Law literature: without the clear identification of the actual change mechanism that has operated across Rule of Law related ideas—something that we do not yet have—there is no way to assess whether various common assumptions in the Rule of Law literature are, or can be, consistent with one another. In this respect, my argument sounds both a cautionary tale of using assumptions that may be inconsistent and acts as a call to investigate the nature of change across conceptions in order that the assumptions can, more clearly and accurately, achieve the aims for which they are commonly deployed. 

I describe the assumptions as assumptions because they are generally cited as forming part of the conceptual backstory of the Rule of Law; they represent foundational, generally unexamined, beliefs about the Rule of Law on which more substantive arguments are based. The assumptions derive from both primary works that could be seen to form a canon of work associated with the concept—for example, accounts by Aristotle, Hobbes, Locke, Dicey, Hayek, and Fuller—and secondary literature that analyses that canon. Within this body of work the assumptions’ collective cogency has not previously been considered. As further ideas are based on the assumptions—and where the assumptions are often provided with a view to establishing a shared understanding about the concept—I argue that consideration of this collective cogency is necessary for conceptual clarity. I expose the potential for inconsistency when the assumptions are considered together by considering their cogency in terms of two hypothetical (and extreme) mechanisms of change. The result is not only the identification of inconsistency generally, but also the finding that the inconsistency varies between the mechanisms. It is this variance that leads to the problem identified in this article’s first paragraph. I suggest a contextual assessment of Rule of Law accounts as being one way that the problem can be solved. In circumstances where the concept is so often cited, referred to, and deployed in academic argument, yet where potentially inconsistent assumptions play a foundational role, enhanced clarity is undoubtedly both necessary and long overdue. 

This paper is couched and expressed in necessarily abstract terms. My argument relates to the concept of the Rule of Law. Whilst this concept undoubtedly has practical applications and an operational function, my discussion does not directly relate to these aspects (although, as noted later in the paper, there may be some indirect effects). Not only do I consider only the abstract aspect of the concept, but I also primarily explore the academic debates and discussions that relate to the meaning and nature of the abstract aspect of the concept as well as its relative change over time. It is because I am exploring the way in which the concept is discussed and the way in which is it viewed that my argument in this paper is necessarily abstract. In this respect, the paper only occasionally includes practical examples; however, even these frequently point to specific conceptions of the Rule of Law and not to its practical application in the world.

I cite a number of sources that identify, and rely on, various common assumptions in relation to the analysis of the Rule of Law. These citations are generally found in the opening paragraphs (or opening sentences) of the works cited. This is, as will become apparent, a clear and recurrent theme. The authors offer their statements to describe what the Rule of Law is and, relatedly, as an account of where the concept’s origins lie. The foundational importance of this analytic approach is apparent from Martin Krygier’s observation: ‘It is common to start discussions of the rule of law by saying what it is before going on to ask what, if anything, it might be good for and worth…’ (Krygier 2011, p. 65). In establishing an agreed, and agreeable, foundation for what the Rule of Law is, the assumptions—whilst relating to different characterisations of the concept—provide a shared understanding about the concept on which further arguments about its meaning or operation can be based. In this respect, the assumptions do a lot of—largely hidden—work. The assumptions each offer a relatively weak notion of what the Rule of Law is but, through their collective cogency, they purport to provide a strong base on which to structure a Rule of Law argument. The way in which these ideas come—or are brought—together reflects a consilience of inductions: where ‘an Induction, obtained from one class of facts, coincides with an Induction, obtained from another different class. This consilience is a test of the truth of the Theory in which it occurs.’

In other words, if two (or more) independent notions lead to the same conclusion, this provides support for the wider theory; ideas, by their consilience, reinforce one another. The assumptions I identify reflect different—historical, analytical, or ontological—characteristics of the concept. To provide consistent support for the wider theory of the Rule of Law, the assumptions—when viewed as independent notions—would be expected to support the same conclusion. However, as I will illustrate, the assumptions do not and cannot come together as various inconsistencies result in their—ultimate—failure to provide a base on which to structure more substantive ideas. 

Notwithstanding their foundational importance, the assumptions do not, in this respect, represent positions of considered argument. The statements reflect the most commonly endorsed positions relating to the concept of the Rule of Law in the Rule of Law literature; their existence or correctness is simply assumed. The common assumptions are assumptions not only because they play a crucial foundational role on which further arguments are constructed, but also because they are treated in those arguments as—often—unspoken aspects of the argument; there is frequently no argument—other than mere citation of canonical works—offered in support of the various statements. Of course, we must, to some degree, rely on works that have come before us; it would be impractical to suggest—and I do not intend to do so—that in every mention of, for example, Aristotle, a complete exegesis of his works should be undertaken. I highlight this issue only to illustrate that the common assumptions are used as background information and as a way of setting the scene for the discussion to come. By highlighting the assumptions’ incompatibility—where our reliance on robust and consistent assumptions is advantageous—I expose the nature and scope of a problem inherent in the literature: that without identifying the way in which Rule of Law ideas have changed, there is no way to assess whether the common assumptions in the Rule of Law literature are, or can be, consistent with one another. 

By stipulating two crude ways of conceiving a macro-process of change, I expose the potential for substantial inconsistencies across the assumptions and suggest that, if clarity is important, it is, therefore, necessary to identify the change mechanism that has operated. The problem arises when the assumptions are considered in terms of potential mechanisms of change. If it is accepted that there has been some form of change in relation to the idea of the Rule of Law—a position that must be accepted if the various works that form the Rule of Law literature relate to the same overarching family of ideas—the operative mechanism of change can impact the extent of any inconsistency across the common assumptions. To demonstrate this, I stipulate two hypothetical and extreme forms of conceptual change: evolutionary and, revolutionary. When the assumptions are considered in terms of these forms of change, the nature of inconsistency varies considerably. In short, I demonstrate that the operation of either of the change mechanisms impacts the nature, extent, and frequency of the inconsistencies across the assumptions: if revolutionary change has occurred, the assumptions that form the foundation for a number of Rule of Law papers are largely inconsistent with one another. To facilitate the avoidance of the use of inconsistent assumptions in the future, the nature of change across conceptions must be identified. 

It is useful to explain exactly what I mean by a ‘mechanism of change’. In using this term, I mean the process by which change occurs or is brought about. In considering the way that I explore this idea in this paper, the mechanism in its simplest sense relates to the nature of the conceptual change that occurs between two (or more) conceptions of the Rule of Law. The operation of the mechanism is intended to reflect a number of questions regarding the change. These include: when two Rule of Law conceptions are different, in what way, if at all, do they relate to one another? Does one conception rely on another to take effect/operate? I intentionally do not specify whether the mechanism relates to human action or not. This is because—at some level—change in conceptions of the Rule of Law necessarily involves human agency as humans must posit a conception; however, it is not necessarily the case that a change in the way the Rule of Law is viewed is necessarily intended. If one author had no knowledge of a previous idea of the Rule of Law, this does not proscribe a contribution to the debate around the concept that forms the contemporary discussion of the Rule of Law. As will be touched upon below, many of the authors that are frequently relied upon in discussions about the concept of the Rule of Law do not appear to be responding to other earlier authors in that debate. Yet, the conceptions that are put forward may still cause the idea of the Rule of Law to change in either an evolutionary or a revolutionary fashion. 

Identification of the nature of the change will, then, provide a solution to the problem. A question remains, however, on how this should be achieved. By suggesting one possible solution I seek to avoid merely identifying the problem without even hinting at a solution. Whilst I explore this, albeit briefly, toward the end of my argument, it is relevant to note here that one way to achieve this is to identify precisely what (a particular conception of) the Rule of Law is (or, more properly, was) at the point at which the idea was stated. A closer examination of canonical Rule of Law ideas, in the context of their creation, will more clearly illustrate exactly what the Rule of Law was (for each canonical author) at that time and, thus, when compared to any subsequent canonical conception, the mechanism of change can be identified. Change can only be considered—and, hence, the problem identified in this article be answered—once this has happened. Before we can begin to explore the problem, however, some conceptual ground-clearing is required. 

The Rule of Law spans a number of disciplines and is viewed in a discreet conceptual form within each. Further, it seems likely each individual in Rule of Law relevant fields may have his or her particular idea of what the Rule of Law is. So, to narrow the scope of this article, I only explore the body of work that looks to identify—or at least comment on—the precise nature of what the Rule of Law is . I do not explore the wide body of—practically or empirically focussed—work that seeks to identify or test the extent to which the Rule of Law can be measured in legal or political systems of the world. In this sense, defining the scope of this article is relatively straightforward. What is more complicated is the provision of a working definition or attachment of a meaning to the term the Rule of Law. As I criticise the wide body of literature that itself has seen much ink spilt in trying to define the Rule of Law, any superficial attempt to provide a specific definition seems to be both imprudent and arrogant. Focussing the conceptual scope is, however, necessary to provide some clarity. I do not offer a definition. Instead, I simply identify one feature that the Rule of Law necessarily possesses: whatever else the Rule of Law may be, I take it to be an idea that relates to the normative constraint of the exercise of power. This broadly stated feature encompasses commonly stated Rule of Law-ideas whilst further narrowing the relative conceptual scope of the discussion and provides clarity for my argument. To narrow the scope further, I consider the Rule of Law only in terms of its Anglo-American conception. My reasons for doing so are three-fold: first, I do not consider the Rule of Law and the often associated continental ideas of, for example, the >Rechtsstaat or theEtat de droit, as being directly comparable; second, sufficient space is not available for me to consider all of the various Rule of Law-relevant concepts here; and, third, the literature I critique is largely focussed on this same form.

Why, and for whom, is the problem I raise a problem? Why, and to whom, does my challenge matter? And, how is this paper likely—or intended—to change future work? These are valid and sensible questions to ask.

As my answers to the first and second questions overlap, I can deal with them together. The problem I raise is a problem for different people at various levels. As noted above, the problem means that there is no way to assess whether various common assumptions in the Rule of Law literature are, or can be, consistent with one another. In this sense, the problem directly impacts individuals that discuss the meaning of the Rule of Law with reference to the common assumptions. This would encompass the paradigmatic figures of this literature—like Brian Tamanaha, Martin Krygier, and Jeremy Waldron—as well as those of us that refer to their work and cite or use the common assumptions of the Rule of Law more generally. In addition, the relative unclarity that results from the problem also impacts the more practically based discussions of the Rule of Law. As the general abstract conceptual discussion blurs into, and can influence, the practical application, there is an indirect impact on those individuals that seek to apply an idea of the Rule of Law.

My answer to the third question—regarding how this paper is likely to change future work—also operates on two levels. At the first level, I hope that my argument will cause critical reflection on the use and application of the common assumptions in future work relating to the concept or conceptions of the Rule of Law. This follows from the fact that I intend only to raise the assumptions’ potential inconsistency. In echoing my comment from this paper’s first paragraph, my raising the problem (and the paper generally) is a call to investigate the nature of change across conceptions in order that the assumptions can more clearly and accurately achieve the aims for which they are commonly deployed. (Whilst I raise one possible solution to the problem I point-out, I do not suggest it is the only solution.) In this sense, the benefit that I hope flows from my argument is both that individuals working in this field do two things: critically evaluate practices that have defined discussions about the concept of the Rule of Law for at least the last couple of decades; and, facilitate the empowerment of those same individuals to establish new ways of considering the meaning and content of the Rule of Law. This abstract/theoretical reflection about the way in which the concept is described feeds into the second level of operation (regarding the answer to the third question). At this level, after considering any changes in theoretical approaches there may be some indirect impact on the way that practitioners use and apply cognate approaches in considering the Rule of Law.

Before diving into my argument proper, a final comment is apposite. This article represents, in many respects, both a critique of current practices and a rallying cry in relation to future practices. Through illustrating that the form of conceptual change across canonical conceptions of the Rule of Law can impact the relative level of consistency in the assumptions that are used and relied on in the opening of so many Rule-of-Law-focused works, I demonstrate that there must—if we are to provide the strongest possible arguments relating to the contemporary idea of the Rule of Law—be consideration of the way in which change has occurred across conceptions. In other words, the fact that there is little consideration of the form or nature of change in ideas of the Rule of Law results in our reliance on potentially inconsistent assumptions. Where these assumptions play such a vital role in articles exploring the nature and content of the concept of the Rule of Law it is imperative that the assumptions relied upon set the strongest possible foundation. The avoidance of inconsistency—even potential inconsistency—is, therefore, not only highly desirable but also, I would suggest, is essential. It is on this basis, and for this reason, that I seek to explore and expose the potential for inconsistency across the assumptions that are used and, in closing, suggest—albeit briefly—one possible solution to the problem.

In what follows, In Sect. 2, I identify the common assumptions in the Rule of Law literature before, in Sect. 3, explaining why they are inconsistent. After providing a brief re-statement of the problem in Sect. 4, I very briefly suggest one potential way out of (or around) the problem in Sect. 5. Section 6 concludes.

Harms

The Data Delusion: Protecting Individual Data Isn't Enough When The Harm is Collective' (Stanford Cyber Policy Center) by Martin Tisné (Managing Director, Luminate) comments

On March 17, 2018, questions about data privacy exploded with the scandal of the previously unknown consulting company Cambridge Analytica. Lawmakers are still grappling with updating laws to counter the harms of big data and AI. 

In the Spring of 2020, the Covid-19 pandemic brought questions about sufficient legal protections back to the public debate, with urgent warnings about the privacy implications of contact tracing apps. But the surveillance consequences of the pandemic’s aftermath are much bigger than any app: transport, education, health systems and offices are being turned into vast surveillance networks. If we only consider individual trade-offs between privacy sacrifices and alleged health benefits, we will miss the point. The collective nature of big data means people are more impacted by other people’s data than by data about them. Like climate change, the threat is societal and personal. 

In the era of big data and AI, people can suffer because of how the sum of individual data is analysed and sorted into groups by algorithms. Novel forms of collective data-driven harms are appearing as a result: online housing, job and credit ads discriminating on the basis of race and gender, women disqualified from jobs on the basis of gender and foreign actors targeting light-right groups, pulling them to the far-right. Our public debate, governments, and laws are ill-equipped to deal with these collective, as opposed to individual, harms.

Tag-Gag

"The Meaning of Meat' by Jareb A Gleckel and Sherry F Colb in (2020) Animal Law Review (Forthcoming) comments

 Plant-based and cell-based meat companies are vying to take over the trillion-dollar meat industry—and, in recent years, they have gained momentum. Responding to consumer demand and widespread fear about global climate change, investors like Bill Gates, Richard Branson, and even Tyson Foods began investing in alternative meat. Beyond Meat became a publicly-traded company and partnered with Dunkin’ Donuts, while Impossible Foods partnered with Burger King, bringing plant-based meat products into the mainstream. But many states with strong ties to animal agriculture have sought to impede the growth of the alternative-meat market. In August 2018, Missouri became the first state to restrict how alternative companies use the word ‘meat’ and related terms on their labels. Eleven more states have passed similar ‘Tag-Gag’ statutes. 

This Article reviews three primary constitutional challenges plant-based companies have leveled against such provisions—challenges based on the First Amendment, Due Process, and the Dormant Commerce Clause. After Part II evaluates the merits of these claims, Part III explores how they could advance or inadvertently undermine other animal and civil-rights lawyering strategies. To supplement the standard arguments, Part IV proposes ways for cause-driven plaintiffs like Tofurky—the first company to challenge Tag-Gag laws—to amplify their free speech claims. First, this Part suggests that although the statutes at issue appear to target mere commercial speech, courts have reason to view them as regulations of political speech calling for strict, rather than intermediate, scrutiny. Second, this Part suggests that plaintiffs could challenge Tag-Gag statutes not only under the First Amendment but also under the free speech provisions of state constitutions.

Thawing and Access to Digital Records

As a precursor of postmodernism, Nietzsche quipped ‘Let us beware of saying that death is the opposite of life. The living is only a species of the dead, and a very rare species’. My 'Thawing-out Personhood: Australian Law and Cryonics' in (2020) 17(1) Canberra Law Review comments

The adoption of cryonics poses fruitful questions about personhood, consumer protection, trusts, taxation, crime, human rights and other law. Cryonics involves the long term storage of human cadavers at subzero temperatures with an expectation that in the indefinite future the legally dead will be ‘reanimated’. The article discusses the culture and law of cryonics in relation to Australia. It draws on Martha Fineman’s vulnerability theory to critique claims by proponents of cryonics, asking whether unsubstantiated claims regarding reanimation are unconscionable and necessitate a specific statutory prohibition. The article further considers the implications for health, welfare and other law if cryonics was practical. 

The piece begins

Lynn Stout’s elegant 'The Corporation as Time Machine: Intergenerational Equity, Intergenerational Efficiency, and the Corporate Form' offered a novel and persuasive analysis of one category of artificial person as a mechanism for transcending the finitude experienced by all natural persons. There is increasing interest in some Australian and overseas communities regarding cryonics – cold storage of humans for ‘reanimation’ at an undetermined future time – as a mechanism for transcendence on the part of natural persons. The adoption of cryonics poses fruitful questions about personhood, consumer protection, trusts, taxation, crime, human rights and other law rather than what the Stoics considered to be our mistaken fear of death. 

This article engages with questions about cryonics in relation to Australian law, arguing that existing consumer, succession and criminal law offers an effective framework for the regulation of a new technology and consequent shaping of social practice. As such it represents a substantive addition to Australian literature. 

Part I offers an introduction to cryonics, whose adherents expect that future advances in technology will enable the ‘revival’ of cadavers, in essence the unprecedented reinstitution of personhood. Part II draws on vulnerability theory in examining consumer protection issues, which range from outright fraud or negligence on the part of for-profit cryonics service providers through to questions about unconscionability in the marketing to vulnerable people of services that as of 2020 are empirically nonsensical. It touches on responsibility under Commonwealth, state and territory consumer protection and criminal law. Part III considers some implications for succession, health and welfare law if cryonics was practical. Part IV offers concluding remarks, including recommendations for coherent national regulation.

The NSW Law Reform Commission's report on Access to digital records upon death or incapacity recommends a new statutory scheme for NSW, which would allow access to a deceased or incapacitated person’s digital records in limited circumstances. 

 The Commission's Recommendations are - 

NSW needs a digital access scheme

 

2.1: A statutory scheme for NSW NSW should enact a statutory scheme that enables an authorised person to access a deceased or incapacitated person’s digital records in limited circumstances.

 

Scope and key terms of the statutory scheme

 

3.1: The scheme should apply where users are domiciled in NSW

 

The scheme should apply to a custodian, regardless of where the custodian is located, if the user is domiciled in NSW or was domiciled in NSW at the time of their death.

 

3.2: Key terms of the statutory scheme

 

The scheme should include the following definitions:

 

(1) “Authorised person” means the person with the right, under this scheme, to access particular digital records of the user.

 

(2) “Custodian” means a person or service that has, or had at the time of the user’s death, a service agreement with the user to store or maintain particular digital records of the user.

 

(3) “Custodian policy” means a statement of policy by the custodian, not otherwise incorporated in a service agreement, which relates to the digital records of the user stored or maintained by that custodian, and applies whether or not the user is alive or has capacity.

 

(4) “Digital record” means a record that: (a) exists in digital or other electronic machine-readable form, and (i) was created by or on behalf of the user, in whole or in part, or (ii) relates to the user, and the user had access to it while the user was alive, or (iii) relates to the user, and their representative had access to it during any period of incapacity, but (b) does not include an underlying asset (such as money in a bank account or the copyright in a literary work) or liability, unless the asset or liability is itself a digital record.

 

(5) “Incapacitated user” means an adult user who requires or chooses to have assistance with decision-making in relation to particular digital records of the user.

 

(6) “Online tool” means a tool provided by a custodian online that allows the user to give directions or permissions to a third party for managing the digital records of the user stored or maintained by that custodian.

 

(7) “Service agreement” means an agreement between a user and a custodian that relates to the digital records of the user stored or maintained by that custodian.

 

(8) “User” means a natural person who has entered into a service agreement with a custodian to store or maintain particular digital records of the user.

 

The authorised person and the extent of their access

 

4.1: Authorised person entitled to access a user’s digital records

 

The scheme should provide that:

 

(1) The authorised person entitled to access particular digital records of a deceased user is: (a) the person specifically appointed by the user’s will to manage those digital records: (i) in the case of a formal will, whether or not there has been a grant of representation of the will, or (ii) in the case of an informal will, only if there has been a grant of representation (b) if there is no person specifically appointed by the user’s will to manage those digital records, the person nominated through an online tool to manage those records (c) if there is no person specifically appointed by the user’s will or nominated through an online tool to manage those digital records, the executor of the user’s will: (i) in the case of a formal will, whether or not there has been a grant of representation of the will, or (ii) in the case of an informal will, only if there has been a grant of representation (d) if there is no will or no executor willing or able to act, and no person nominated through an online tool to manage those digital records, the administrator of the user’s estate (e) if no provision or order has been made, a person to whom the deceased user has communicated the access information for those digital records, but not where that person holds the access information as part of an employment or other contractual relationship involving remuneration for the activity, unless the user has indicated that the arrangement is to have effect after their death.

 

(2) The authorised person entitled to access particular digital records of an incapacitated user is: (a) any person appointed under: (i) an enduring guardianship arrangement that has effect, or (ii) an enduring power of attorney that has effect, but only in relation to those records that are: (iii) specified in the enduring guardianship arrangement or enduring power of attorney, or (iv) otherwise relevant to the person’s role either as enduring guardian or attorney (b) if there is no person appointed under an enduring guardianship or enduring power of attorney, any person appointed under: (i) a guardianship order, or (ii) a financial management order, but only in relation to those records that are: (iii) specified in the guardianship order or financial management order, or (iv) otherwise relevant to the person’s role as guardian or financial manager (c) if there is no person appointed under an enduring guardianship, enduring power of attorney, guardianship order or financial management order, the person nominated through an online tool to manage those digital records (d) if no provision or order has been made, the person with access information for those digital records, either because: (i) the incapacitated user has communicated the access information for those digital records to the person, or (ii) the person created those digital records on the incapacitated user’s behalf but not where the person holds the access information as part of an employment or other contractual relationship involving remuneration for the activity, unless that relationship is a paid carer relationship.

 

4.2: A person can apply to the Supreme Court of NSW for an order that they are the authorised person The scheme should provide that a person can apply to the Supreme Court of NSW for an order that they are the authorised person entitled to access particular digital records of the deceased or incapacitated user under Recommendation 4.1.

 

4.3: Extent of the authorised person’s access right

 

The scheme should provide that:

 

(1) For the purposes of determining the extent of the authorised person’s right: (a) “administering the deceased user’s estate” includes informal administration of the deceased user’s estate (b) “managing the incapacitated user’s affairs” includes informal management of the incapacitated user’s affairs, and (c) “deal” or “dealing” includes transferring digital records to the person entitled to them, but does not include editing the content of digital records.

 

(2) The authorised person entitled to access particular digital records of a deceased user may access and deal with those digital records: (a) subject to applicable fiduciary duties, and (b) subject to other applicable laws, and (c) subject to any terms of the following, as applicable: (i) the will (even where the authorised person is not the person named in the will), or (ii) the online tool, or (d) if there are no such terms, only for the purpose of administering the deceased user’s estate.

 

(3) If the authorised person entitled to access particular digital records of a deceased user also has authority over the user’s tangible personal property that is capable of holding, maintaining, receiving, storing, processing or transmitting a digital record, they are authorised to access and deal with the property and digital records of the user stored on it: (a) subject to applicable fiduciary duties, and (b) subject to applicable laws, and (c) subject to the terms of the following, as applicable: (i) the will (even where the authorised person is not the person named in the will), or (ii) the online tool, or (d) if there are no such terms, only for the purpose of administering the deceased user’s estate.

 

(4) The authorised person entitled to access particular digital records of an incapacitated user may access and deal with those digital records: (a) subject to applicable fiduciary duties, and (b) subject to applicable laws, and (c) subject to the terms of the following, as applicable: (i) the online tool, or (ii) an enduring guardianship or enduring power of attorney, which has effect, or (iii) the guardianship or financial management order, or (d) if there are no such terms, only for the purpose of managing the incapacitated user’s affairs.

 

(5) If the authorised person entitled to access particular digital records of an incapacitated user also has authority over the user’s tangible personal property that is capable of holding, maintaining, receiving, storing, processing or transmitting a digital record, they are authorised to access and deal with the property and digital records of the user stored on it: (a) subject to applicable fiduciary duties, and (b) subject to applicable laws, and (c) subject to the terms of the following, as applicable: (i) the online tool, or (iii) the enduring guardianship or enduring power of attorney, which has effect, or (iv) the guardianship or financial management order, or (d) if there are no such terms, only for the purpose of managing the incapacitated user’s affairs.

 

(6) In all such cases, the authorised person is deemed to have the consent of the deceased or incapacitated user for the custodian to disclose the content of the digital records to the authorised person.

 

4.4: Other obligations of the authorised person

 

The scheme should provide that:

 

(1) Where the authorised person entitled to access particular digital records of a deceased user is not the executor or the administrator of the user’s estate, they must do all things reasonably necessary to provide relevant information to the executor or administrator for the purposes of administering the user’s estate.

 

(2) Where the authorised person entitled to access particular digital records of an incapacitated user is not appointed under: (a) an enduring guardianship, or (b) an enduring power of attorney, or (c) a guardianship order, or (d) under a financial management order, they must do all things reasonably necessary to provide relevant information to a person so appointed for the purpose of managing the user’s affairs.

 

4.5: Improper disclosure of information

 

The scheme should provide that:

 

(1) It is an offence for an authorised person entitled to access particular digital records of the deceased user to disclose information about the deceased user, or another person, obtained in accessing those records, unless the disclosure is: (a) in accordance with the relevant instrument or order appointing the authorised person (b) for the purpose of administering the deceased user’s estate (c) necessary for legal proceedings (d) authorised by law (e) authorised by a court or tribunal in the interests of justice, or (f) disclosed to authorities as necessary to prevent serious risk to life, health or safety or to report a suspected serious indictable offence.

 

(2) It is an offence for an authorised person entitled to access particular digital records of the incapacitated user to disclose information about the deceased user, or another person, obtained in accessing those records, unless the disclosure is: (a) in accordance with the relevant instrument or order appointing the authorised person (b) for the purpose of managing the incapacitated user’s affairs (c) necessary for legal proceedings (d) authorised by law (e) authorised by a court or tribunal in the interests of justice, or (f) disclosed to authorities as necessary to prevent serious risk to life, health or safety or to report a suspected serious indictable offence.

 

Access procedures, liability limits and conflicting terms in custodian agreements and policies

 

5.1: Procedural requirements for access requests

 

The scheme should provide that:

 

(1) The authorised person entitled to access particular digital records of a deceased or incapacitated user may request access to those records stored or maintained by a custodian by contacting the custodian and providing proof of their authority.

 

(2) In relation to a deceased user’s digital records, the authorised person will prove their authority by providing the custodian with a copy of the following, as applicable: (a) proof of the user’s death (b) the formal will (c) in the case of a formal will that has not been proved, a statutory declaration establishing that the will is the user’s last valid will (d) the grant of representation (e) proof of the authorised person’s identity

 

(3) In relation to an incapacitated user’s digital records, the authorised person will prove their authority by providing the custodian with a copy of the following, as applicable: (a) the enduring guardianship or enduring power of attorney (b) the guardianship or financial management order (c) proof of the authorised person’s identity.

 

(4) For the purposes of Recommendation 5.1(2) and 5.1(3), a “copy” includes a copy in digital or other electronic machine-readable form.

 

(5) If, and only if, the authorised person is unable to provide proof of authority in accordance with Recommendation 5.1(2) or 5.1(3), authority will be proved by an order from the Supreme Court of NSW that states that they are the authorised person.

 

(6) A custodian may choose not to require the particular proof of authority set out in Recommendation 5.1(2) or 5.1(3). If the custodian chooses to require proof of authority, the custodian can only require a Supreme Court order where the authorised person does not provide proof in accordance with Recommendation 5.1(2) or 5.1(3).

 

(7) A custodian who receives a request from an authorised person, in accordance with Recommendation5.1, must provide access to the authorised person within 30 days of receipt of the request, unless the custodian can show that access is not technically feasible.

 

5.2: Protecting custodians from liability

 

The scheme should protect custodians from liability for acts or omissions done in good faith to comply with the scheme.

 

5.3: Protecting the authorised person from liability

 

The scheme should provide that:

 

(1) A person who: (a) purports to act as an authorised person under the scheme, and (b) does so in good faith, and without knowing that another person is entitled to be the authorised person in accordance with the scheme, is not liable for so acting.

 

(2) For the purposes of s 308H of the Crimes Act 1900 (NSW), access to or modification of restricted data held in a computer is authorised if it is done in accordance with the scheme.

 

5.4: Conflicting provisions in service agreements and policies

 

The scheme should provide that:

 

(1) Despite any other applicable law or a choice of law provision in a relevant service agreement or custodian policy, a provision in that service agreement or custodian policy that limits the authorised person’s access to particular digital records of the deceased or incapacitated user, contrary to the scheme, is unenforceable.

 

(2) Despite any provision, including a choice of law provision, in a relevant service agreement or custodian policy, the authorised person’s access to particular digital records of a deceased or incapacitated user, in accordance with the scheme, does not require the consent of the custodian and is not a violation or breach of any provision of the service agreement or relevant custodian policy.

 

5.5: NSW as the proper forum for disputes

 

The scheme should provide that, despite any forum selection term in the relevant service agreement, the courts of NSW with the relevant jurisdiction are the proper forum for disputes concerning the access to particular digital records of a deceased or incapacitated user, where the user is domiciled in NSW or was domiciled in NSW at the time of their death.

 

Changes to existing laws and other issues related to the scheme

 

6.1: Clarify that NSW succession and estate laws, and assisted decision- making laws, extend to property in digital form

 

(1) The definition of “property” in s 3 of the Succession Act 2006 (NSW) should be amended to include “property in digital or other electronic machine- readable form”.

 

(2) The definition of “personal estate” in s 3 of the Probate and Administration Act 1898 (NSW) should be amended to include “property in digital or other electronic machine-readable form”.

 

(3) The definition of “property” in s 3(1) of the Powers of Attorney Act 2003 (NSW) should be amended to include “property in digital or other electronic machine-readable form”.

 

(4) The definition of “estate” in s 3(1) of the Guardianship Act 1987 (NSW) should be amended to include “property in digital or other electronic machine-readable form”.

 

6.2: Amendments to NSW privacy laws to allow for the operation of the scheme

 

Amendments should be made to NSW privacy laws about accessing and managing personal information, to allow for the operation of the scheme.

 

6.3: Education about digital records and their management

 

Institutions and organisations already educating the community and legal practitioners about succession law, administration of estates, and assisted decision-making laws, should incorporate into their education programs information about digital records, and how they can be managed following a person’s death or incapacity.

 

6.4: Custodian procedures for access requests

 

Custodians should have transparent processes for handling access requests.

Playing Nicely

'Beyond the Call of Duty: why shouldn’t video game players face the same dilemmas as real soldiers?' by Ben Clarke, Christian Rouffaer and Francois Senechaud in (2012) 94(886) International Review of the Red Cross 711 comments

Video games are influencing users’ perceptions about what soldiers are permitted to do during war. They may also be influencing the way combatants actually behave during today’s armed conflicts. While highly entertaining escapism for millions of players, some video games create the impression that prohibited acts, such as torture and extrajudicial killing are standard behaviour. The authors argue that further integration of international humanitarian law (IHL) can improve knowledge of the rules of war among millions of players, including aspiring recruits and deployed soldiers. This, in turn, offers the promise of greater respect for IHL on tomorrow’s battlefields. 

 The authors state

As I scan the horizon for targets, a river of flames cuts through the night sky; dancing streams of red and white light up the city. I see white phosphorous all around us. This stuff is death to all it touches. Our 155 mm artillery shells, alternating between white phosphorous and high explosive, soften up enemy positions in advance of the assault. In a split second, we will leave the safety of our armoured vehicle and start the bloody work of grunts: searching houses and killing villains. We must push forward. We can’t let the terrorists fall back and regroup. We’ve grabbed a foothold in the city and must exploit it by driving as deep as possible into enemy territory. Our instructions are to take out the likely enemy headquarters, a big house down the street. The success of the whole campaign rests upon our shoulders. 

Our squad leader turns to us, gives a few quick orders, and moves to the back gate. I throw a grenade toward the municipal building. When it explodes, smoke and dirt swirl around the street. We fire a few 40 mm M203 rounds for good measure. The explosion leaves a makeshift smoke screen. As we progress, one team member is taken down by sniper fire from a building on our left. It looks like a hotel. I call in a drone strike. Almost immediately its lethal load hits the multistorey building, reducing it to rubble. No need to bother about potential occupants or collateral damage; the entire city, manned only by treacherous terrorists, can be destroyed. Any human our team encounters is a target. Anti-personnel land mines are a good way to secure streets and buildings we have cleared. For four hours in a row, we repeatedly enter houses, killing anyone in our line of sight and grabbing their dog tags as trophies. Enemy wounded, as a rule, try to fight back. Those who don’t get a double tap anyway, just like all the rest. After all, there is no surrender option. Only enemy leaders are taken alive: you can’t beat intelligence out of dead people. Afterwards, headshots from my M4 Bushmaster – with the silencer I got for reaching 100 kills – are good for my game ranking.

Video games offer players the possibility to ‘use’ the latest weapons against enemy combatants on contemporary battlefields. Yet as realistic as they may look and sound, these games often portray lawless armed conflicts in which actions are without consequences. This sends negative messages to players about the existence of, and need to respect, humanitarian norms during real armed conflicts. Why can’t players enjoy video games that truly reflect the dilemmas of modern combatants? Can video games be a positive medium of influence to reinforce understanding and respect for the law? Why can’t players be rewarded for compliance with the rules governing the use of force as well as the treatment of persons in the hands of the enemy and sanctioned for violating the same? 

With hundreds of millions of active players (or ‘gamers’) around the world, the video games industry has become a global phenomenon that transcends social, cultural, geographical, age, and income brackets. While the vast majority of video games do not depict combat situations or indeed any form of violence, those that do represent a highly lucrative, if narrow, segment of the video game market. From Rio de Janeiro to Ramallah, children and adults – including enlisted soldiers and budding recruits – are enthralled by this form of ‘militainment’ (see figures throughout article). 

‘Video games and international humanitarian law (IHL)’ is a relatively new and fragmented field of enquiry, spanning a range of discourses. There is little in the way of IHL-focused literature on the subject. This article is very much an exploratory piece. Its purpose is to highlight the potential impact of these games on players’ perceptions of the normative framework governing the use of force. Our focus is upon first person shooter games depicting combat situations, that is, those games where players fire at enemy targets on contemporary battlefields, such as Iraq, Afghanistan, Lebanon, Somalia, and other contexts in the Levant. As depiction of violence per se is not the issue being addressed in this contribution, video games that portray more fictional scenarios including medieval fantasy or futuristic wars in outer space are beyond the scope of this article. In the first section, we begin by highlighting the potential influence of video games on players’ perception about applicable rules in real battlefields. The second section examines the applicability of IHL and international human rights law (IHRL) to contemporary situations portrayed in video games. In the third section, attention turns to challenges posed to humanitarian norms by games that are marketed as providing a ‘real-life’ experience of combat, but actually portray battlefields that are essentially lawless. In the final section, the authors explain the International Committee of the Red Cross’s (ICRC) joint initiative with various Red Cross National Societies to work together with the video game industry to encourage innovation for better integration of IHL and IHRL in these games. We note that through this initiative, video games – with their vast reach and capacity for the transfer of knowledge and skills–can become important vectors for the promotion of humanitarian norms.