Algorithmic Governance

'Administering Artificial Intelligence' by Alicia Solow-Niederman in (2020) 93(4) Southern California Law Review 633 comments 

 As AI increasingly features in everyday life, it is not surprising to hear calls to step up regulation of the technology. In particular, a turn to administrative law to grapple with the consequences of AI is understandable because the technology’s regulatory challenges appear facially similar to those in other technocratic domains, such as the pharmaceutical industry or environmental law. But AI is unique, even if it is not different in kind. AI’s distinctiveness comes from technical attributes—namely, speed, complexity, and unpredictability—that strain administrative law tactics, in conjunction with the institutional settings and incentives, or strategic context, that affect its development path. And this distinctiveness means both that traditional, sectoral approaches hit their limits, and that turns to a new agency like an “FDA for algorithms” or a “federal robotics commission” are of limited utility in constructing enduring governance solutions This Article assesses algorithmic governance strategies in light of the attributes and institutional factors that make AI unique. In addition to technical attributes and the contemporary imbalance of public and private resources and expertise, AI governance must contend with a fundamental conceptual challenge: algorithmic applications permit seemingly technical decisions to de facto regulate human behavior, with a greater potential for physical and social impact than ever before. 

This Article warns that the current trajectory of AI development, which is dominated by large private firms, augurs an era of private governance. To maintain the public voice, it suggests an approach rooted in governance of data—a fundamental AI input—rather than only contending with the consequences of algorithmic outputs. Without rethinking regulatory strategies to ensure that public values inform AI research, development, and deployment, we risk losing the democratic accountability that is at the heart of public law.

New ALRC Inquiries

The national Attorney-General issued terms of reference for two Australian Law Reform Commission (ALRC) inquiries: one on judicial impartiality and one on the legislative framework for corporations and financial services regulation. 

The Judicial Impartiality review deals with the laws relating to impartiality and bias as they apply to the federal judiciary. The ALRC is to consider: 

• actual or apprehended bias relating to judicial decision-making; 
• clarity to decision-makers, the legal profession and the community about how to manage potential conflicts and perceptions of partiality; and 
• mechanisms for raising allegations of actual or apprehended bias. 

The review of the Legislative Framework for Corporations and Financial Services Regulation concerns 'the potential simplification of laws that regulate financial services in Australia', following up the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry (aka Hayne Royal Commission, noted elsewhere on this blog). 

Three sub-topics are to be the subject of an interim report by the ALRC, prior to release of the consolidated Final Report: 

• the appropriate use of definitions in corporations and financial services legislation; 
• the regulatory design and the hierarchy of primary law provisions, regulations, class orders, and standards; and 
• potential reframing or restructuring of Chapter 7 of the Corporations Act.

The ALRC is to explore

whether, and if so what, changes to the Corporations Act 2001 (Cth) and the Corporations Regulations 2001 (Cth) could be made to simplify and rationalise the law, in particular in relation to the matters listed below. 

 

A. The use of definitions in corporations and financial services legislation, including:

• the circumstances in which it is appropriate for concepts to be defined, consistent with promoting robust regulatory boundaries, understanding and general compliance with the law; 

• the appropriate design of legislative definitions; and the consistent use of terminology to reflect the same or similar concepts.  

B. The coherence of the regulatory design and hierarchy of laws, covering primary law provisions, regulations, class orders, and standards, to examine: 

• how legislative complexity can be appropriately managed over time; 

• how best to maintain regulatory flexibility to clarify technical detail and address atypical or unforeseen circumstances and unintended consequences of regulatory arrangements; and 

• how delegated powers should be expressed in legislation, consistent with maintaining an appropriate delegation of legislative authority. 

C. How the provisions contained in Chapter 7 of the Corporations Act 2001 (Cth) and the Corporations Regulations 2001 (Cth) could be reframed or restructured so that the legislative framework for financial services licensing and regulation:

• is clearer, coherent and effective; 

• ensures that the intent of the law is met; 

• gives effect to the fundamental norms of behaviour being pursued; and 

• provides an effective framework for conveying how the law applies to consumers and regulated entities and sectors.

 In undertaking that review the ALRC is to identify and have regard to existing reports and inquiries, and any associated Government responses, including: 

•  the 2019 Final Report of the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry; 

• the 2017 Report of the Treasury’s ASIC Enforcement Review Taskforce; 

• the 2015 Final Report of the Australian Government Competition Policy Review; 

• the 2014 Final Report of the Financial System Inquiry; 

• the 2014 Final Report of the Productivity Commission, Access to Justice Arrangements; and 

• any other inquiries or reviews that it considers

Safety, Silicosis and Sharing

The NSW Legislative Council Standing Committee on Law and Justice report on the Work Health and Safety Amendment (Information Exchange) Bill 2020 (NSW), released today, notes my submission regarding what I characterised as 'an example of deficient statutory drafting that should not be endorsed by the Committee and should not be passed by the Legislative Council'. 

 I argued that the proposed regime is overly broad, is contrary to the Government’s recognition of the importance of privacy and – most importantly – will foster distrust in the community about the handling of sensitive personal health information. Trust is the foundation of an effective public health regime and not something that should be disregarded on the basis of bureaucratic convenience. 

 My submission included the feedback that 

 The Government’s commitment to addressing concerns regarding dust related diseases and in particular protecting workers from harms attributable to silicosis associated with manufactured stone is commendable. The Bill however is an inappropriately broad response that is contrary to the Government’s stated commitment to privacy, has not been the subject of appropriate consultation and will erode public trust that is a foundation of the health system. The Bill is an example of deficient drafting and should be rejected. 

 

The Bill is overly broad 

 

The Bill seeks to authorise any sharing of data, including but not restricted to sensitive personal health data, by NSW Health with the state Workplace Health and Safety regulator (SafeWork NSW). It expressly takes that sharing outside the coverage of the NSW privacy regime. It does not feature a review mechanism. It is silent on discretion but the 2nd Reading Speech indicates that decision-making about sharing is left to the Secretary of NSW Health. The Bill is thus contrary to best practice and public trust. 

 

A key principle in Australian and international law is that any erosion of human rights, such as privacy, must be necessary and proportionate rather than on the basis of bureaucratic convenience. Necessity requires that erosion of a right be justified by a discernible and substantive benefit for the community, as distinct from making life easier for a government agency or partner. Proportionality requires that erosion of a right not go beyond what is required to achieve a public good. A salient test is accordingly whether a particular enactment or other mechanism will do the least harm, be the least erosive. 

 

The principle means that legislators should be wary about giving public/private sector entities the equivalent of a blank cheque, in this instance a proposed statutory authority for sharing of any NSW Health information (gathered on a statutory and/or other basis) without any restriction under NSW privacy law such as the Privacy and Personal Information Protection Act 1998 (NSW) and the Health Records and Information Privacy Act 2002 (NSW). 

 

The sharing envisaged in the Bill should be specifically restricted to silicosis-related data rather than authorising the sharing of any data. 

 

If the expectation is that the NSW Health be authorised to share non-silicosis data (for example relating to environmental contaminants, carcinogenic chemicals and other harmful substances in the workplace) that very expansive authorisation should be clearly expressed and subject to public discussion. Such sharing should be specifically accommodated within the state’s privacy enactments and subject to external scrutiny. The 2nd Reading Speech refers to “limited personal and medical information about workers” and other workers. There is no indication in the Bill on constraints regarding that sharing, with for example no identification of the meaning of “limited”. 

 

The overly-broad sharing – irrespective of exclusion from coverage by the Privacy and Personal Information Act and irrespective of the future Memorandum discussed immediately below – must not be regarded as a model for exclusion of privacy protection in other areas of the state’s public administration. As it stands both the Bill and inadequate process regarding its development are a disquieting precedent that should be challenged by the Committee. 

 

Ministers have in the past used language such as “privacy is sacred” (for example in introducing legislation regarding the NSW digital driver licence scheme) and stated that the Government has a commitment to respecting privacy as one of the rights identified in a range of international human rights agreements to which Australia is a member. The basis for walking away from that commitment through an express exclusion of privacy in the Bill is unclear. ... 

 

As things stand there are no privacy safeguards in the Bill. There is no reference in the Bill to the Memorandum. There appears to be no requirement for the Memorandum to be published (an expectation in relation to best practice in government accountability through independent scrutiny and for legitimacy regarding the ‘blank cheque’ sharing authorised under the proposed regime). There is no requirement for the Memorandum to be tabled in Parliament, although that tabling might be strongly encouraged by the Committee. 

 

There is no indication of the justiciability of the Memorandum, for example if there is misuse that would otherwise be actionable under the privacy enactments that are expressly excluded in the Bill. There is no requirement for the Memorandum to be approved by the Information and Privacy Commission NSW. Such a requirement would provide a potential safeguard and a recognition by the Government of the function of the Commission in giving effect to the commitment to respecting privacy noted above.

Disinformation and Platforms

Last week's Digital Disinformation and Vote Suppression report from the US Brennan Center comments that

Election officials, internet companies, the federal government, and the public must act to defend the 2020 elections against digital disinformation attacks designed to suppress the vote. U.S. elections face extreme pressure in 2020. The Covid-19 crisis has created new challenges for election officials and pushed them to make last-minute changes to the voting process, typically with resources that were already stretched thin. Pandemic-related voting changes have become an election issue themselves, with political actors sowing confusion for the benefit of their party. Bad actors have circulated lies to trick certain groups out of voting — and thanks to social media, these deceptive practices can instantly reach huge numbers of people. Experts warn that foreign powers have learned from Russia’s 2016 election interference efforts and will try to covertly influence the American electorate this year. 

State and local election officials play a crucial role in defending U.S. elections against these threats and in protecting American voters from disenfranchisement due to disinformation. Internet companies and members of the public can also take action against deceptive practices, voter intimidation, and other forms of digital vote suppression. In all cases, accurate information from trusted official sources provides the best antidote to disinformation about voting.

The report's Summary Recommendations are

Election officials should:

• Develop plans and procedures to publicize corrective information. 

• Make written plans to push out correct information without repeating falsehoods. 

• Establish channels of communication with the public and with key actors like community groups, candidates, and the media. 

• Publicize official sources of accurate information to build public trust. 

• Disseminate information on well-publicized sources like websites, emails, advertising, and social media accounts that are active and verified by the platform. 

• Protect official sources from hacking and manipulation. 

• Secure official websites and social media accounts from being used to trick voters by implementing cybersecurity best practices like tight access controls, multifactor authentication, and anti-phishing procedures. 

• Monitor for disinformation. 

• Actively watch for falsehoods about elections, set up ways for the public to report instances of digital disinformation, work with internet companies, and participate in information-sharing networks. 

• Build relationships with communities and media. 

• Perform early public outreach to communities, including in appropriate languages, to facilitate communication before an incident occurs. 

• Build relationships with local and ethnic media.

Internet companies should:

• Proactively provide information about how to vote. 

• Maintain clear channels for reporting disinformation. 

• Take down false information about voting but preserve the data. 

• Protect official accounts and websites. 

• Push corrective information to specific users affected by disinformation.

The federal government should:

• Enact the Deceptive Practices and Voter Intimidation Prevention Act. 

• Share intelligence about incidents of disinformation and help disseminate correct information.

'Content Not Available: Why The United Kingdom's Proposal For A “Package Of Platform Safety Measures” Will Harm Free Speech' by Mark Leiser and Edina Harbinja in (2020) Technology and Regulation comments 

This article critiques key proposals of the United Kingdom’s “Online Harms” White Paper; in particular, the proposal for new digital regulator and the imposition of a “duty of care” on platforms. While acknowledging that a duty of care, backed up by sanctions works well in some environments, we argue is not appropriate for policing the White Paper’s identified harms as it could result in the blocking of legal, subjectively harmful content. Furthermore, the proposed regulator lacks the necessary independence and could be subjected to political interference. We conclude that the imposition of a duty of care will result in an unacceptable chilling effect on free expression, resulting in a draconian regulatory environment for platforms, with users’ digital rights adversely affected.

DTC Genomics

The TGA has released its Summary and outcomes: review of the regulation of certain self-testing in vitro diagnostic medical devices (IVDs) in Australia.

The TGA states 

Home-use tests, also known as self-tests, for serious diseases (e.g. notifiable infectious diseases, sexually transmitted diseases, cancer, genetic markers of disease) have been prohibited from supply in Australia since 1 July 2010 under the Therapeutic Goods (Excluded Purposes) Specification 2010 (the Excluded Purposes Specification 2010). The exception was self-tests for Human Immunodeficiency Virus (HIV) which have been permitted since 2014 based on feedback from a consultation process. Most OECD countries do not have similar prohibitions on self-testing to those currently in Australia. 

In accordance with the Legislative Instruments Act 2003, legislative instruments are automatically repealed after a fixed period of time (subject to some exceptions). This automatic repeal is called ‘sunsetting’. The Excluded Purposes Specification 2010 will sunset on 1 October 2020. It was a legal requirement to perform a review prior to the remaking of the instrument to see if there was a continuing need for this regulation and if any prohibitions should be maintained. Feedback from the consultation informed the recommendation to re-make the Excluded Purposes Specification. 

Summary of consultation 

A public consultation process was conducted in late 2019, with 26 submissions received in response. A summary of submissions is available on the TGA website. Further targeted consultation on direct-to-consumer (DTC) genetic testing and infectious diseases specifically was conducted from April to July 2020. An overwhelming majority of stakeholders supported the position that self-tests for cancer and DTC genetic testing for health-related purposes should continue to be prohibited from supply. However, overall, there was cautious support for allowing other self-tests where there are benefits that may offset the risks to public or individual health, such as for certain infectious diseases where supply may increase testing uptake in populations experiencing barriers to primary health. A summary of views is provided below. 

Direct-to-consumer genetic self-tests 

The overwhelming majority of stakeholders did not support genetic self-testing. It was considered the risks associated with DTC genetic testing could not be safely mitigated to reduce potential harms to an acceptable level. Some of the key concerns raised by stakeholders included:

• ensuring the security and integrity of data and personal information obtained by DTC genetic testing companies, including its later use as well as the potential for data collected for a non-health related purpose later being used for a health purpose; 

• potential for misinterpretation of the DTC genetic self-test data by consumers; and 

• the increase in burden on health professionals to assist consumers seeking advice on interpretation of DTC genetic test self-tests results.

Self-tests for infectious diseases 

The views on self-tests for serious infectious diseases were more diverse. Some respondents strongly supported the future availability of a number of infectious disease self-tests, while others were more cautiously supportive. Further targeted consultation with key stakeholders confirmed the view self-tests for serious infectious diseases should continue to be prohibited, except where there were greater benefits from the supply of certain self-tests, and the tests can be made safely available. The benefits were identified as:

• • increased uptake of testing in populations experiencing barriers to primary care such as people in rural and remote areas; 

• increased uptake of testing in people who would not otherwise seek testing; 

• reduced delays in testing and potential for earlier treatment; and 

• supply of high quality self-tests (which have been evaluated and approved by the TGA) minimising the risk of purchase of unapproved devices by consumers over the internet from overseas.

It was emphasised by some stakeholders that many of the people most likely to use self-tests are not currently being tested by laboratory tests, and so wider testing could potentially bring significant public health benefits. The use of a self-test and the requirement for a laboratory test to confirm a positive result may result in additional notifications for public health surveillance purposes. The majority of respondents identified self-testing for hepatitis C and influenza as examples where the benefits are likely to outweigh the risks. 

Other respondents identified particular self tests which may be safely supplied in the future, including: other respiratory infections such as respiratory syncytial virus (RSV);  hepatitis C virus;  blood borne viruses generally; sexually transmitted infections; and gastrointestinal and travel acquired infections. 

At the same time, concerns were raised that public health surveillance of serious infectious diseases may be compromised if self-tests for certain diseases (e.g. measles, dengue and norovirus) were to be allowed. Other concerns raised were the: potential for incorrect use and interpretation of the tests;  need for confirmatory testing of positive results both to confirm any diagnosis and to enable public health surveillance of notifiable infectious diseases ; and  need for patients to have access to appropriate support services to ensure follow-up testing and treatment if required. Self-tests for other serious diseases (non-infectious) The overwhelming majority of stakeholders supported the continuing exclusion of self-tests for cancer but did not comment on self-tests for other serious non-infectious diseases or disorders. One submission specifically proposed that self-tests for some serious conditions such as diabetes, kidney disease and heart diseases might have benefits for early detection and treatment. 

Consultation outcome and proposed future regulation of self-tests 

Taking into consideration the feedback received from stakeholders during the consultation process it was recommended the Australian Government re-make the Excluded Purposes Specification to allow a limited number of self-tests to be made available in Australia where there are particular benefits to public or individual health, and risks can be managed. 

The supply of Class 3 and Class 4 IVD self-tests for the following serious diseases and conditions will be allowed: chlamydia trachomatis; hepatitis B virus; hepatitis C virus; herpes simplex virus type 1 and 2;  human immunodeficiency virus type 1 and type 2; neisseria gonorrhoea; seasonal influenza virus; treponema pallidum (syphilis); diabetes; kidney disease; and cardiovascular disease. 

In relation to influenza virus, this is specific to seasonal strains of influenza virus only and does not include any strains that are novel or emerging (e.g. pandemic strains). 

The supply of all other Class 3 and Class 4 IVD self-tests for serious diseases, including self-tests for cancer and genetic self-tests, and Class 2 IVDs for detecting faecal occult blood will continue to be prohibited unless they are being used for a government screening program. Self-tests solely intended for monitoring a previously diagnosed disease or condition were not previously prohibited and can continue to be supplied. 

Managing the risks 

During the consultation it was acknowledged that consumers can purchase self-tests over the internet and these tests have not undergone any evaluation to verify their quality or performance. It was considered preferable consumers have access to self-tests that have been subject to evaluation by the TGA. At the same time stakeholders emphasised such tests would need to be robust and of a high quality to mitigate risks associated with the performance and interpretation of the results. 

During the consultation a range of risk mitigation strategies were discussed and how evaluation of self-tests by the TGA will support further mitigation of risks associated with use. It was determined that the evaluation of self-tests prior to approval will need to ensure:

• they have a high level of sensitivity and specificity to minimise false negative and false positive results; 

• the sample collection, test performance and interpretation is straight forward and the instructions for use are easy to understand for lay persons; 

• evidence is provided that the test performs satisfactorily in consumer usage studies; 

• the limitations of the test are clearly identified, such as limitations of antibody testing; 

• during the “window” period, and the importance of re-testing in situations where there may have been recent exposure or repeated exposures; 

• there are clear instructions on when to seek clinical advice to confirm the presence of disease, obtain appropriate treatment and allow for notifiable infectious disease surveillance where necessary; 

• information is provided on how to contact locally available support services; and 

• consumers are aware of how to report poor performance of a self-test to the TGA.

Additional post-market requirements can also be imposed to help mitigate risk, such as the requirement to provide the TGA with periodic reports on the number of tests supplied and any adverse events (i.e., false negatives or false positives); and post-market laboratory evaluation of the tests to verify performance.

Confessionals

The institutional complaisance (if not complicity) in fundamental abuse that was highlighted in the Royal Commission into Sexual Abuse noted elsewhere in this blog has resulted in a loss of the legitimacy that might preclude tighter regulation. The Queensland parliament has now created a new offence of failing to report and failing to protect a child from institutional child sexual abuse, with the state's Justice minister highlighting that the legislation clarifies 'that priests will not be able to rely on the seal of confession to avoid the reporting of abuse'. 

It is unclear how effective the legislation will be and to what extent clergy will heed its condemnation by religious authorities. 

The Criminal Code (Child Sexual Offences Reform) and Other Legislation Amendment Bill 2019 (Qld), passed this week, provides 

229BB Failure to protect child from child sexual offence 

(1) An accountable person commits a crime if—  

(a) the person knows there is a significant risk  that another adult (the alleged offender) will   commit a child sexual offence in relation to a child; and 

(b) the alleged offender—

(i) is associated with an institution; or 

(ii) is a regulated volunteer; and 

(c) the child is under the care, supervision or control of an institution; and 

(d) the child is either—

(i) under 16 years; or 

(ii) a person with an impairment of the mind; and 

(e) the person has the power or responsibility to reduce or remove the risk; and 

(f) the person wilfully or negligently fails to reduce or remove the risk.

 Maximum penalty—5 years imprisonment. 

(2) For subsection (1), it does not matter that the knowledge was gained by the accountable person during, or in connection with, a religious confession.

 'Religious confession means a confession made by a person to a member of the clergy in the member’ s professional capacity according to the ritual of the member’s church or religious denomination'.

Under 229BC 'Failure to report belief of child sexual  offence committed in relation to child' ... 

 (1) This section applies to an adult if—

(a) the adult gains information that causes the  adult to believe on reasonable grounds, or  ought reasonably to cause the adult to believe, that a child sexual offence is being or has been committed against a child by another adult; and 

(b) at the relevant time, the child is or was— (i) under 16 years; or (ii) a person with an impairment of the mind.

(2) If, without reasonable excuse, the adult fails to disclose the information to a police officer as soon as reasonably practicable after the belief is, or ought reasonably to have been, formed, the adult commits a misdemeanour. 

Maximum penalty—3 years imprisonment. 

(3) For subsection (1), it does not matter that the information was gained by the adult during, or in connection with, a religious confession. 

(4) Without limiting what may be a reasonable excuse for subsection (2), an adult has a reasonable excuse if—

(a) the adult believes on reasonable grounds that the information has already been disclosed to a police officer; or 

(b) the adult has already reported the information under any of the following provisions, or believes on reasonable grounds that another person has done or will do so—

(i) the Child Protection Act 1999, chapter 1 2, part 1AA; 

(ii) the Education (General Provisions) Act 2006, chapter 12, part 10; 

(iii) the Youth Justice Act 1992, part 8 or 9; 5 or

(c) the adult gains the information after the  child becomes an adult (the alleged victim), and the adult reasonably believes the alleged victim does not want the information to be disclosed to a police officer; or

(d) both of the following apply—  

(i) the adult reasonably believes disclosing the information to a police officer would endanger the safety of the adult or another person, other than the alleged offender, regardless of whether  the belief arises because of the fact of the disclosure or the information disclosed; 

(ii) failure to disclose the information to a police officer is a reasonable response in the circumstances.

 (5) An adult who, in good faith, discloses information mentioned in subsection (1)(a) to a police officer is not liable civilly, criminally or under an administrative process for making the disclosure.

Defence Magistrates

In Private R v Brigadier Michael Cowen and Anor [2020] HCA 31 the High Court has today unanimously dismissed an application challenging a Defence Force magistrate's  jurisdiction to try a charge against an Australian Defence Force (ADF) member. 

The application concerned the extent to which the defence power conferred by s 51(vi) of the Constitution on the Australian Parliament supports the conferral of jurisdiction by the Defence Force Discipline Act 1982 (Cth) on military service tribunals to hear and determine charges relating to conduct that also constitutes an offence under ordinary criminal law and that is committed in a time of peace when civil courts are reasonably available. 

Private R was charged by the Director of Military Prosecutions on 2 June last year with one count of assault occasioning actual bodily harm against a woman with whom he had previously been in an intimate relationship. The alleged offending occurred after a birthday party in Fortitude Valley, Brisbane. Allegedly he  made unwanted advances towards the complainant throughout the night before throwing her phone across the room, grabbing her by the throat, pushing her against the wall, shaking her and yelling at her. After she broke free he allegedly tackled her to the ground, placed his knees on her chest and choked her until security guards entered the room. 

At the time of the alleged assault he was angry and intoxicated. Saliently he was (and currently is) a member of the ADF. The complainant was a member. Neither was on duty at the time of the alleged offending. Neither was in uniform. 

In August 2019 he appeared before a Defence Force magistrate (Brigadier Michael Cowen) on a charge under s 61(3) of the Act, which provides that a defence member is guilty of an offence if

• the person engages in conduct outside the Jervis Bay Territory [inc outside Australia]
• and that conduct would be an offence if it took place in the Territory [under ACT law]. 

Assault occasioning actual bodily harm is an offence under s 61(3) by reason of s 24 of the Crimes Act 1900 (ACT). 

Private R objected to the Defence Force magistrate's jurisdiction, with the magistrate dismissing that objection on the basis that it is sufficient to confer jurisdiction on a service tribunal that the accused was a member of the armed forces when the charged offence was allegedly committed. The Private then commenced proceedings in the original jurisdiction of the High Court seeking prohibition to prevent the Defence Force magistrate hearing the charge. 

The Court has now held that the magistrate had jurisdiction to hear the charge. Five Justices of the Court held that s 61(3)  in obliging defence members to obey the law of the land is, in all its applications, a valid exercise of the defence power. 

Two Justices held that s 61(3) is valid only in its application to offences that, because of their nature or circumstances of commission, have a proven connection with defence force discipline, with that threshold being satisfied in this instance.

The pace of innovation in the data-driven economy

'Economic Rents and the Contours of Conflict in the Data-driven Economy' (CIGI Papers No. 245 — July 2020) by Dan Ciuriak at the Centre for International Governance Innovation comments 

 While history allows many narratives to be spun, the contours of conflict, both internal and between states, can be seen as aligned with the contest over control of the most valuable productive assets of an age — from the wars of territorial acquisition of the feudal era when land was the main source of economic rents, to the wars of mercantilist expansion when the economies of scale generated by the machinery of mass production became the main source of rent, to the resource-rent-fuelled oil wars of the modern era, and, in recent decades, the proliferating conflicts over intellectual property (IP). 

With the digital transformation we are seeing the emergence of a new type of economy — the data-driven economy, in which data is the essential factor of production. Data generates massive rents, fuels the rise of superstar firms and generates powerful incentives for strategic trade and investment policy. The emergence of this new economy signals a new era of conflict, on new battlegrounds and with new tools or weapons, between new coalitions within and between countries. This conflict is already upon us. The vast rents prospectively at play in the data-driven economy arguably constitute a major (perhaps the major) trigger for the open trade and technology war between the United States and China. They also are at the heart of the brewing conflicts over taxation of digital platform firms.  

This paper describes the contours of the conflicts that are to be expected with the digital transformation as it realigns interests; compares these expectations with actual developments; and comments on the strategies of the main protagonists and the implications for the rules- based system of international commerce. ... 

In the era of continuous and steadily accelerating technological change that started with the Industrial Revolution, economies and societies were repeatedly transformed in ways that can be traced to ownership of the essential and scarce factor of production of the day and command of the economic rents that flowed to that factor. The digital transformation is now ushering in a new economic era, in which the economy is again being reordered by new technologies based on a new essential capital asset — data. The emergent data-driven economy promises to be similar to, but distinct in a number of ways from, its knowledge-based economy predecessor. However, it is very different from the industrial era based on machinery of mass production, which the knowledge-based economy itself succeeded, and the land-based feudal era before it (Ciuriak 2018a). These differences can be related to the ways in which data is different from the productive assets that underpinned the economy of preceding eras. 

This paper briefly sets out this thesis and describes the contours of the conflicts that are to be expected with the digital transformation as it realigns the interests of social groups, companies and countries. It concludes with some inferences concerning the nature of these conflicts for policy makers tasked with navigating the coming period of turbulence.

Ciuriak concludes

a rules-based system is efficient for the regulation of trade when competitive market conditions apply — which was perhaps unusually and fortuitously the case in the postwar period when, briefly, economies were characterized by constant returns to scale and the labour share of income was constant. However, in the contest for international rents, geo-economic and geopolitical power runs roughshod over rules. That is the situation facing the international community in the coming years. The critical factor going forward is to de-escalate the rhetoric on national security and values, which are not negotiable and potentially put the parties onto a path to mutually ruinous conflict, and instead place the emphasis on the sharing of rents, which is a negotiable issue that can be addressed by an institutional framework already in place — the WTO.

Genographics

'Genetic ancestry testing, whiteness and the limits of anti-racism' by Katharine Tyler in (2020) New Genetics and Society comments 

This article explores how a branch of genomic science that embraces and advocates anti-racism, public participation, consultation and inclusion unintentionally supports everyday discourses of race and racism. It focuses on the reproduction of racism and exposes the limits of anti-racist discourses that are embedded in public engagements with the science and technology of genetic ancestry testing. I deploy a case study which is centerd on the analysis of commentaries posted on the internet which were written in response to a newspaper article that criticized the science of genetic ancestry testing. This article was published in The Daily Telegraph, a broadsheet “quality” newspaper in the UK. I analyse the ways in which ideas and images of British indigeneity and shared human descent that support white Western racial hierarchies, power and privileges emerge 

Tyler argues

 Population geneticists have identified genetic markers with populations, that is, groups of individuals that map onto geographical areas (Jobling, Rasteriro, and Wetton 2016, 142). These genetic markers can most easily be identified in the Y-chromosome inherited only by men from their fathers, or the mitochondrial DNA inherited by both men and women through the maternal line (Jobling, Rasteriro, and Wetton 2016). These genetic markers can also be identified in autosomal markers that are inherited from both parents (Bolnik et al. 2007). 

Since 2000, there has been a rapid expansion in commercial companies that have mobilized this science to sell direct-to-consumer genetic tests that offer information about individual ancestries (Abu El-Haj 2012, chapter 4). These tests analyse large collections of genetic markers (Royal et al. 2010). Each individual’s genome is then mapped “as a mosaic of segments inferred to be derived from” an ancestral population (Royal et al. 2010, 655). The most common test taken today is the autosomal DNA test that allows individuals to trace their purported genetic ancestry to a variety of groups. This is achieved by comparing test results to patterns of variation in pre-defined reference groups in order to partition the customer’s ancestry into fractions or percentages of resemblance to those ancestry groups (Royal et al. 2010; Jobling, Rasteriro, and Wetton 2016). Thus, for example, the results reported to the consumer testing autosomal markers from both parents “typically estimate admixture proportions from several populations, most often Africans, Europeans, Asians, and Native Americans” (Royal et al. 2010, 668). Consumers can purchase a range of tests that explore their connections via genetic ancestry, such as “the Native American ethnicity DNA Test,” the “European ancestry DNA test,” (Royal et al. 2010), “the Cohanim Modal Haplotype Test,” “the Hindu Test” and the “Genghis Khan Test” (Schramm, Skinner, and Rottenberg 2012, 9). 

Human population geneticists have been integral to the development of the rapidly expanding commercial sector of genetic genealogy (Nash 2015). While the respective sample databases, goals and test resolutions are different for commercial and research projects, ancestry testing companies and university research projects rely on each other’s “technological capacities” and “expertise” (Royal et al. 2010, 661; Abu El-Haj 2012, 148). Notwithstanding this close relationship between scientific research and the commercial sector of genetic genealogy, there is a debate amongst geneticists about the reliability of direct-to-consumer genetic ancestry tests (see Abu El-Haj 2012, 151–159 for an overview of these debates). For example, Jobling, a Professor of Genetics at the University of Leicester, and his co-authors argue that: “ ... genetic methods based on the study of groups of individuals (populations) are reliable and respectable scientific tools, but ... the practice of individual genetic ancestry testing is unreliable and powerfully influenced by cultural and other social forces” (2016, 143). Significantly, for these geneticists the latter includes the mistaken mapping of ancestry not onto populations but racial categories (2016, 143). It is precisely the companies’ claims to be able to map individuals’ ancestries onto ethnic and racial origins that has led many geneticists to be sceptical of the validity of these tests (Bolnik et al. 2007; Royal et al. 2010; Abu El-Haj 2012, 151). In response to this criticism the geneticists involved in the commercialization of this technology point out that the companies do explain to customers that there is an “imperfect correlation” between “genetics, race and geography” (Abu El-Haj 2012, 152). Nonetheless, some geneticists have joined critical social scientists to question the impact of these tests on ideas about the biological constitution of race and question the ethics of the commercialization of this science (Bolnik et al. 2007; Greely 2008; Royal et al. 2010). 

In this article I shall focus on public responses to one such critique of these tests made by genetic scientists reported in an article in The Daily Telegraph newspaper, a broadsheet (i.e. “quality”) newspaper in the UK (Collins 2013). The Telegraph article was written by the newspaper’s science correspondent Nick Collins. This article reported the deep misgivings expressed by eminent population geneticists about the ethics of the commercialization of genetic ancestry tests. They questioned their accuracy for tracing the racial, ethnic and national descent of the user, suggesting that the findings of the tests are not supported by scientific evidence. I shall set out the details of this newspaper article in the empirical sections below. 

The case study that I shall develop here is centerd on public reaction to this newspaper article articulated in contributions to the comments section that follows the on-line version of the article. I will highlight how some commentators sought to defend the ability of the tests to identify ancestries of racial, ethnic and national descent. My analysis of these comments – that I refer to as “posts” – will show that it consists of two groups. One group of posts claims the weight of science in support of an image of Britishness as entwined with white Nordic European origins, and the other group advances an apparently opposing image of the common descent of humanity from African origins. I shall refer to the former as “the discourse of British indigeneity” and the latter as “the discourse of shared human descent.” 

My reading and analysis of this commentary section allowed me to see and explore how some of the cultural images and scripts articulated in the posts resonate and chime with the popular depiction of the science of genetic ancestry testing in the media. In particular, I shall demonstrate how those posts that I identify as discourses of “British indigeneity” evoke scripts and images that reflect aspects of the media dissemination of Walter Bodmer’s work (see Cross 2001; Fortier 2012; Nash 2013, 2015). Bodmer is an Oxford-based population geneticist whose research set out to trace the origins of ancient British ancestry and descent and has been widely publicized in television documentaries and in popular books (Nash 2013). Also, I contend that some of the ideas in the posts that comprise the discourse of “shared human descent” resonate with the US-based Genographic Project sponsored by the National Geographic (see Nash 2007, 2015; Reardon and Tallbear 2012). This project is one of the most publicized and well-known research projects on human population genetics (Nash 2007). One strand of this project used blood samples taken from particular populations of “indigenous” people (Nash 2007), also referred to as “First Nation” (Reardon and Tallbear 2012) people, with the aim of mapping humanity’s genealogical history and origins. 

The population geneticists working on these high-profile research projects are adamant that their work is resolutely anti-racist in its approach to genetic science and genealogy (Reardon and Tallbear 2012; Nash 2015). But in stark contrast to this assurance, my analysis of the commentaries reveals that the logics of indigeneity underpinning these projects feed into commentators’ posts in ways that support ideas of Britishness, difference, genetic and genealogical belonging that are racist and nationalist, albeit no doubt, unintentionally so. I will be exploring how images and ideas from “liberal anti-racist genomics” (Reardon 2012) that aim to be “democratic” (Fulwiley 2014, 803) in terms of public engagement and anti-racist with regard to ideas of human similarity and difference reoccur in everyday discourses to support ideas and practices that have xenophobic, nationalist and racist implications (see also Ifewkwunigwe et al. 2017; Wagner et al. 2017). To make this argument I shall draw on sociological, anthropological and geographical critiques of the popular dissemination of Bodmer’s work (e.g Cross 2001; Fortier 2012; Nash 2013, 2015) and the Genographic Project (Nash 2007, 2015; Reardon and Tallbear 2012). It will become clear that the social scientific critique of these projects affords a perspicuous set of theoretical concepts and frameworks through which to analyse the construction of difference in commentators’ accounts. 

However, my case study also brings a new perspective to the existing social scientific critiques. Read collectively these critiques focus solely on the popular dissemination of Bodmer’s work and the Genographic Project in books and television documentaries. My case study extends this body of work by illustrating how the ideas, images, scripts and icons from these high-profile projects are reproduced in the everyday accounts of individuals who do not self-identify as scientists. 

It is worth highlighting that my focus on a British-based case study is significant because most of the research on the everyday connections that lay people make between ideas of science, ancestry, race and ethnicity is conducted in the USA. For example, there is a growing body of qualitative work in the USA on the ways in which ideas of racial and ethnic identification inform how American test-takers across ethnic, racial and religious identities interpret their genetic ancestry test results in ways that are meaningful to them (see Abu El-Haj 2012 on Jewish American experiences; Tallbear 2013 on Native American experiences; Nelson 2016 on African American experiences; Roth and Ivemark 2018 on white American experiences; Panofsky and Donovan 2019 on white nationalist experiences). These studies highlight how nationally specific colonial and slave histories and ideologies of race, nation, citizenship and multiculturalism shape people’s interpretations of genetic ancestry tests. Given the specific histories of empire, slavery, race, nation, immigration and multiculturalism that have formed and continue to shape the UK and its ethnically diverse citizenry, my case study provides insight and data on the diverse ways in which genetic ancestry tests are interpreted in the context of postcolonial Britain. 

While I have found studies on genetic ancestry based in the USA and elsewhere insightful, my focus on the British context is particularly significant. This is because there is a dearth of work that explores how ideas of race and ethnicity mediate everyday engagements with genetic ancestry in the UK. For example, Scully, King, and Brown (2013), Scully, Brown, and King (2016) trace the ways in which white men with ancient-sounding surnames from the north of England receive information about their supposed Viking ancestry. The focus of this study is not on what they call the “high stakes” involved in taking these tests, including questions of racial and ethnic identification (Scully, Brown, and King 2016, 164). Rather, their emphasis is on how test results become incorporated into what test-takers already know about their family history and their sense of local and national identity. As will become apparent, the specifically British racialised histories of empire and slavery, as well as contemporary articulations of multiculturalism and immigration, including images that have become associated with Brexit, inform how the commentators that feature in my case study engage with the general science of the tests. 

Before I get to the details, some further reflection is needed on how the social scientific critique of high-profile genetic projects applies to the analysis I will provide.

Magna Carta Again

Another misplaced belief in Magna Carta, this time in Zeqaj v Deputy Commissioner of Taxation [2020] FCA 1270. 

The Court states 

 The appellant’s material also required me to examine a medley of provisions:

(a) Paragraphs 51(ii) and (xii) of the Constitution (as set out in s. 9 of the Commonwealth of Australia Constitution Act 1900 (Imp.) 63 & 64 Vict., c. 12 (the “Constitution”)), which respectively provide Federal Parliament with the power to make laws with respect to taxation and with respect to currency, coinage, and legal tender; 

(b) Section 80 of the Constitution, which provides for a right to trial by jury “on indictment of any offence against any law of the Commonwealth”; 

(c) Section 9 of the Charter of Human Rights and Responsibilities Act 2006 (Vic.) (the “Charter Act”), which provides that “[e]very person has the right to life and has the right not to be arbitrarily deprived of life”; 

(d) Article 14(2) of the United Nations International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (the “I.C.C.P.R.”), which provides that “[e]veryone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law”; 

(e) Article 11(1) of the United Nations Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, UN Doc A/810 (10 December 1948) (the “U.D.H.R.”), which provides that “[e]veryone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence”; 

(f) Chapter 39 of the Magna Carta 1215, which broadly provides that no person shall be taken or imprisoned, or dispossessed of her or his property, liberties or customs, or outlawed or exiled, or otherwise harmed except by lawful judgment of her or his peers or by the law of the land; 

(g) Chapter 40 of the Magna Carta 1215, which broadly provides that to no person will justice or right be sold, deferred or denied — while the appellant referred to Chs. 39 and 40 of the Magna Carta 1215, I observe that these chapters continue to have force of law in Victoria pursuant to ss. 3 and 8 of the Imperial Acts Application Act 1980 (Vic.) as Ch. 29 of the Magna Carta 1297, which consolidated Chs. 39 and 40: Antunovic v. Dawson [2010] VSC 377; (2010) 30 V.R. 355; and 

(h) Section 39B of the Judiciary Act, which relevantly vests this Court with “jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth”. 

Following litigation commencing in 2014 there had been an order for sequestration of Zeqajt’s estate. In the current judgment the Court states

 First, the appellant contended that he was not appropriately served, alleging that there were attempts to “maliciously serve documents” on him in a public workplace. He relied upon reg. 16.01 of the Bankruptcy Regulations. The learned primary judge held that there was nothing in reg. 16.01 which could impugn the manner in which the relevant documents were served on the appellant. The learned primary judge noted that bankruptcy documents are still commonly served personally on the debtor to ensure there is no doubt the debtor is aware of the documents, and that nothing required the alternative methods set out in reg. 16.01 to be used (at [16]-[18]). 

Secondly, the appellant claimed that the learned primary judge did not have jurisdiction to hear an application for a sequestration order. His Honour held that the Federal Circuit Court has jurisdiction under the Bankruptcy Act to hear such an application, and has such accrued jurisdiction as is necessary to carry out that task (at [25]). 

Thirdly, the appellant attacked the constitutional validity of Commonwealth income taxation legislation in reliance upon a number of grounds:

(a) The appellant claimed that capital gains tax (“C.G.T.”) as assessed in accordance with Pt. 3-1 of the 1997 Act is unconstitutional, relying upon s. 51(xii) of the Constitution; his Honour queried the relevance of this paragraph and referred to s. 51(ii), which sets out the Commonwealth’s taxation power (at [26]-[27]]). 

(b) The appellant claimed that the Commissioner is not recognised by the Constitution; his Honour held that the Australian Taxation Office (the “A.T.O.”) is established appropriately by Commonwealth legislation that Parliament has power to pass under the Constitution. There is no requirement for the Commissioner’s position to be established by a provision in the Constitution itself (at [28]). 

(c) The appellant criticised the operation of the C.G.T. provisions, particularly the manner in which they address inflation; his Honour held that such policy criticisms of themselves carry no weight in legal proceedings (at [29]-[30]). 

(d) His Honour referred to and rejected a number of arguments purporting to rely upon the Constitution, including criticisms as to the constitutionality of notices issued under s. 260-5 of Sch. 1 to the T.A.A. (at [31]-[34], [45]). 

(e) The appellant argued that he had a constitutional right to trial by jury; his Honour rejected this argument as s. 80 of the Constitution only provides for trial by jury “on indictment of any offence”. That section is not relevant to the pursuit through civil proceedings of tax debts due and owing to the Commonwealth (at [35]‑[36]). 

(f) The appellant criticised the reversal of the onus of proof in the A.A.T; his Honour held, in reliance upon High Court authority, that there is nothing unconstitutional about reversing the onus of proof in proceedings (at [37]). 

(g) The appellant attacked the constitutionality of taxation in reliance upon Chs. 39 and 40 of the Magna Carta 1215. His Honour rightly held that the provisions, either in their English translation or original Medieval Latin form, did not provide a basis for concluding that the assessment of taxation under Australia’s taxation legislation is unconstitutional or, in any other form, faces legal impediments. The learned primary judge noted that most of the provisions of the Magna Carta 1215 were repealed in the 19th century in England and do not constrict the power of the Commonwealth under the Constitution (at [42]‑[44]). 

Fourthly, the appellant submitted that the imposition of taxation and the reversal of the onus of proof in some way arbitrarily deprived him of life, relying upon s. 9 of the Charter Act. He also contended that he had been denied the presumption of innocence as set out in Art. 14(2) of the I.C.C.P.R. and Art. 11(1) of the U.D.H.R. His Honour held that such arguments were not tenable in civil proceedings under Commonwealth taxation legislation, such as the proceeding before him (at [38]-[41]).

Suicide Commissioner

Last year this blog noted the damning Productivity Commission report on veterans administration. 

Concerns identified in that report are not especially allayed in the National Commissioner for Defence and Veteran Suicide Prevention Bill 2020 (Cth) introduced last week, contrary to the claim that it will embody 'an enduring public accountability and system improvement function'. 

The proposed legislation is intended to establish a National Commissioner for Defence and Veteran Suicide Prevention as an independent statutory office holder within the Attorney-General’s portfolio. 

 The Bill has five parts. The main object of the Bill is to provide for a Commissioner to examine defence and veteran deaths by suicide 'through a broad range of functions and powers, in order to support the prevention of future deaths by suicide'.  Part 2 provides for the establishment and appointment of the Commissioner, as well as arrangements for staff to assist, or receive a delegation from, the Commissioner. 

The Commissioner's functions include:

• inquiring into the circumstances of relevant defence and veteran deaths by suicide 
• making findings and recommendations addressing defence member and veteran wellbeing and suicide prevention strategies, and any policy, administrative or structural reforms that may be required 
• working collaboratively with State and Territory Coroners to understand issues contributing to defence and veteran deaths by suicide 
• maintaining a record of relevant deaths by suicide notified to the Commissioner 
• promoting understanding of suicide risks for defence members and veterans, and opportunities for improved wellbeing support, and 
• reviewing action taken in response to any findings or recommendations the Commissioner has already made. 

The Explanatory Memo states that

The Commissioner could review a broad range of circumstances relevant to defence member or veteran deaths by suicide, including the extent to which the circumstances of a particular suicide death reflect broader or systemic issues. The circumstances the Commissioner may consider include:

• service in the Australian Defence Force (ADF) – including matters connected to recruitment, training, transitions between different forms of ADF service, and the quality of support services available 

• experiences as a veteran – including the circumstances of the person’s transition from ADF service, their interactions with government and other bodies, and the possible impact of other personal circumstances 

• the health, wellbeing and support services available both during and after service in the ADF, and whether these services were appropriate – including the handling of any complaints relevant to these services 

• other matters the Commissioner considers relevant, which could vary in each case.

The Commissioner would be able to commence their own inquiries at any time, and to consider any past defence member or veteran death by suicide.

As guiding principles, the Commissioner should: 

•  take a trauma-informed and restorative approach in exercising their functions and powers – this means the principles of choice, safety, confidentiality, consultation and informed participation, for example, will underpin the way the Commissioner undertakes their role 
• recognise that families and other people affected by a defence member or veteran death by suicide have a unique contribution to make to the Commissioner’s functions, and the Commissioner should recognise that they may wish to be consulted. 

From a privacy, confidentiality and other information perspective the Commissioner has broad information gathering and inquiry powers, modelled on a Royal Commission under the Royal Commissions Act 1902 (Cth) and are supported by similar criminal penalties. The  powers include compelling the production of documents and written statements, convening public and private hearings, and summoning persons to attend a hearing to give evidence under oath or affirmation. Part 3 of the Bill includes provisions enabling Commonwealth, State and Territory bodies (as well as individual officer holders) to provide relevant information to the Commissioner on their own initiative, to assist the work of the Commissioner. A person making a voluntary disclosure of information on behalf of a government body is required to be acting with appropriate authority. The Commissioner is required to take all reasonable steps to make arrangements relevant to obtaining, storing, accessing, using and disclosing intelligence information, before obtaining intelligence information from the relevant entity. 

 The capacity for the Commissioner to consider and compel information that may be subject to legal professional privilege, and information that might tend to incriminate a person in certain circumstances, is addressed in Part 4 of the Bill. Witness protections include limiting the admissibility of evidence given to the Commissioner in a broad range of criminal proceedings, and making it  an offence for a person to dismiss or prejudice a person in their employment because they have given evidence to the Commissioner. 

Part 4 of the Bill includes provisions protecting information provided to, and otherwise held by, the Commissioner, in particular, making it an offence for information to be used or disclosed other than for the purposes of performing or exercising the Commissioner’s functions or powers. The Commissioner has power to issue, vary and revoke a non-publication direction alongside authorising disclosure of information to a range of agencies or bodies (including referral of information to police or prosecution bodies if a potential criminal or civil wrongdoing arises during an inquiry).

The Commissioner will be required to provide an annual report to the A-G for tabling in Parliament, with the Commonwealth tabling its responses to those reports (not a guarantee of action). Funding will provide for a one-off review of historical ADF member and veteran deaths by suicide and 'for a dedicated legal financial assistance scheme'. 

The Commissioner’s functions include: 

• inquiring into the circumstances of relevant deaths by suicide 
• making findings and recommendations following such inquiries, 
• addressing defence and veteran suicide prevention strategies, and any policy, administrative or structural reforms that may be required 
• working collaboratively with state and territory Coroners to understand issues contributing to defence and veteran deaths by suicide 
• reviewing action taken in response to any findings or recommendations the Commissioner has already made, and 
• promoting understanding of suicide risks for members and veterans, and factors that can improve the wellbeing of members and veterans. 

The Commissioner will have broad discretion when inquiring into the  circumstances of relevant deaths by suicide, including considering: 

•  the person’s service in the ADF, including training, the manner or time in which they were recruited, and, for veterans, the person’s transition from the ADF 
• the availability of health, wellbeing and counselling support services to the deceased person in their capacity as a member or veteran, and the effectiveness of any such services 
• the quality and effectiveness of responses to any complaints made by the person or the person’s family, friends or associates in relation to the person’s health and wellbeing, or access to relevant services 
• the extent to which the circumstances of a particular suicide death reflect broader or systemic issues 
• any other matter the Commissioner considers relevant and reasonably incidental to defence and veteran deaths by suicide.  

The Commissioner will not be a court or tribunal (and cannot determine criminal charges or civil liability) and in performing its functions must have regard to the need to avoid prejudicing current or future criminal or civil proceedings, or other contemporaneous inquiries. It will have powers to conduct inquiry processes similar to civil proceedings – for example, it can compel evidence, summon witnesses, convene hearings and administer an oath or affirmation. 

The Explanatory Statement indicates that

The Bill engages the right to privacy by establishing a framework under which the Commissioner may collect, use, disclose and deal with information, including personal information. The Bill includes specific provisions which authorise the collection of personal information which is necessary for the performance of the Commissioner’s functions or exercise of their powers, such the issuing of a summons to give evidence or produce documents or things, or in response to a notice to give information or a statement. 

Any limitation there may be to the right to privacy is lawful and non-arbitrary, in view of the safeguards for protecting personal information in the Bill. These safeguards include:

• The requirement for the Commissioner to take a trauma-informed and restorative approach to their functions and powers. This means the preferences of witness and other persons providing information to the Commissioner about how their personal information will be used or further disseminated by the Commissioner will be given particular weight in the Commissioner’s handling of the information, across the full spectrum of their functions. 

• It is an offence for the Commissioner, or a staff member assisting the Commissioner, to engage in unauthorised use or disclosure of protected information, including personal information – this offence carries a penalty of imprisonment of 2 years. 

• The Commissioner may hold a hearing or part of a hearing in private, if the Commissioner is satisfied that information which may be disclosed will be personal and private, including about a deceased individual. This is accompanied by processes directing how the evidence at a private hearing can be used and disclosed. If a witness gives evidence at a private hearing, the Commissioner must, before using or disclosing that evidence, consider consulting the witness or any other person whose interests are affected. The Commissioner must also consider any risk of prejudice to a person if they are not consulted prior to the use or disclosure, and the preferences of the witness. 

Data collection will presumably be assisted by the inclusion in the coming census of questions about the health of ADF members and veterans, something that in a submission to the Treasury Department consultation I characterised as an indication of ongoing incapacity on the part of large Veterans Affairs Department bureaucracy that - as noted by the Productivity Commission - hasn't done a great job in looking after Australian service people.

The accompanying Consequential Amendments Bill has the effect of excluding the Commissioner's operations from the Privacy Act 1988 (Cth), something that is disquieting and not necessary.