Witnessing

'The Age of the Witness and the Age of Surveillance: Romani Holocaust Testimony and the Perils of Digital Scholarship' by Ari Joskowicz in (2020) 125(4) The American Historical Review 1205–1231 comments 

For over half a century, historians have made ample use of witness testimonies. Efforts to preserve the accounts of marginalized people in particular have broadened the range of voices available to us and significantly expanded the field. Yet we have paid too little attention to the potentially disturbing consequences of the creation and distribution of such testimonies. Focusing on the experiences of Romani Holocaust survivors, this essay argues that new practices of surveillance and victim-witnessing developed in tandem, from the mid-twentieth century to the present. Beginning in the 1960s, prosecutors asked Romani survivors to testify about the crimes committed against them under Nazism even as state authorities continued to criminalize and surveil Romanies across Europe. These and related experiences have meant that different Romani witnesses—or potential witnesses—have often had to balance the desire to have their stories heard against the fear of being listened in on. As surveillance becomes increasingly pervasive and as personal information is increasingly monetized, the lessons that European Romanies learned as early victims of targeted policing remain salient for historians today. Despite its potential to empower, victim-witnessing also creates new vulnerabilities—both those we can currently anticipate and those we can’t yet fully imagine.

Learning

Magical thinking yet again, this time about AI rather than blockchain? 

'Expanding AI’s Impact With Organizational Learning' in (2020) MIT Sloan Management Review asks 

Only 10% of companies obtain significant financial benefits with artificial intelligence technologies. Why so few?

Drawing on the 2020 Artificial Intelligence Global Executive Study and Research Project under the auspices of BCG, the authors comment 

 Our research shows that these companies intentionally change processes, broadly and deeply, to facilitate organizational learning with AI. Better organizational learning enables them to act precisely when sensing opportunity and to adapt quickly when conditions change. Their strategic focus is organizational learning, not just machine learning. Organizational learning with AI is demanding. It requires humans and machines to not only work together but also learn from each other — over time, in the right way, and in the appropriate contexts. This cycle of mutual learning makes humans and machines smarter, more relevant, and more effective. Mutual learning between human and machine is essential to success with AI. But it’s difficult to achieve at scale. 

Our research — based on a global survey of more than 3,000 managers, as well as interviews with executives and scholars — confirms that a majority of companies are developing AI capabilities but have yet to gain significant financial benefits from their efforts. More than half of all respondents affirm that their companies are piloting or deploying AI (57%), have an AI strategy (59%), and understand how AI can generate business value (70%). These numbers reflect statistically significant increases in adoption, strategy development, and understanding from four years ago. What’s more, a growing number of companies recognize a business imperative to improve their AI competencies. Despite these trends, just 1 in 10 companies generates significant financial benefits with AI. 

We analyzed responses to over 100 survey questions to better understand what really enables companies to generate significant financial benefits with AI. We found that getting the basics right — like having the right data, technology, and talent, organized around a corporate strategy — is far from sufficient. Only 20% of companies achieve significant financial benefits with these fundamentals alone. Getting the basics right and building AI solutions that the business wants and can use improve the odds of obtaining significant financial benefits, but to just 39%. 

Our key finding: Only when organizations add the ability to learn with AI do significant benefits become likely. With organizational learning, the odds of an organization reporting significant financial benefits increase to 73%. 

Organizations that learn with AI have three essential characteristics:

1. They facilitate systematic and continuous learning between humans and machines. Organizational learning with AI isn’t just machines learning autonomously. Or humans teaching machines. Or machines teaching humans. It’s all three. Organizations that enable humans and machines to continuously learn from each other with all three methods are five times more likely to realize significant financial benefits than organizations that learn with a single method. 

2. They develop multiple ways for humans and machines to interact. Humans and machines can and should interact in different ways depending on the context. Mutual learning with AI stems from these human-machine interactions. Deploying the appropriate interaction mode(s) in the appropriate context is critical. For example, some situations may require an AI system to make a recommendation and humans to decide whether to implement it. Some context-rich environments may require humans to generate solutions and AI to evaluate the quality of those solutions. We consider five ways to structure human-machine interactions. Organizations that effectively use all five modes of interaction are six times as likely to realize significant financial benefits compared with organizations effective at a single mode of interaction. 

3. They change to learn, and learn to change. Structuring human and machine interactions to learn through multiple methods requires significant, and sometimes uncomfortable, change. Organizations that make extensive changes to many processes are five times more likely to gain significant financial benefits compared with those that make only some changes to a few processes. These organizations don’t just change processes to use AI; they change processes in response to what they learn with AI. Organizational learning with AI demands, builds on, and leads to significant organizational change. This report offers a clear, evidence-based view about how to manage organizational learning with AI.

DeepMind, Dignity and Over-reach

'Google DeepMind and healthcare in an age of algorithms' by Julia Powles and Hal Hodson in (2017) Health and Technology 351–367 argues 

 Data-driven tools and techniques, particularly machine learning methods that underpin artificial intelligence, offer promise in improving healthcare systems and services. One of the companies aspiring to pioneer these advances is DeepMind Technologies Limited, a wholly-owned subsidiary of the Google conglomerate, Alphabet Inc. In 2016, DeepMind announced its first major health project: a collaboration with the Royal Free London NHS Foundation Trust, to assist in the management of acute kidney injury. Initially received with great enthusiasm, the collaboration has suffered from a lack of clarity and openness, with issues of privacy and power emerging as potent challenges as the project has unfolded. Taking the DeepMind-Royal Free case study as its pivot, this article draws a number of lessons on the transfer of population-derived datasets to large private prospectors, identifying critical questions for policy-makers, industry and individuals as healthcare moves into an algorithmic age. 

 The authors comment 

 A key trend in contemporary healthcare is the emergence of an ambitious new cadre of corporate entrants: digital technology companies. Google, Microsoft, IBM, Apple and others are all preparing, in their own ways, bids on the future of health and on various aspects of the global healthcare industry. 

This article focuses on the Google conglomerate, Alphabet Inc. (referred to as Google for convenience). We examine the first healthcare deals of its British-based artificial intelligence subsidiary, DeepMind Technologies Limited, in the period between July 2015 and October 2016. In particular, the article assesses the first year of a deal between Google DeepMind and the Royal Free London NHS Foundation Trust, which involved the transfer of identifiable patient records across the entire Trust, without explicit consent, for the purpose of developing a clinical alert app for kidney injury. We identify inadequacies in the architecture of this deal, in its public communication, and in the processes of public sector oversight. We conclude that, from the perspective of patient autonomy, public value, and long-term competitive innovation, existing institutional and regulatory responses are insufficiently robust and agile to properly respond to the challenges presented by data politics and the rise of algorithmic tools in healthcare. 

The article proceeds in three main sections. The next two sections document comprehensively how the DeepMind deals proceeded, drawing attention to the disclosures and omissions in how data handling was communicated, justified and, ultimately, scrutinized in public. Section 2 discusses the chronology, formal contractual basis, and stated clinical motivation underlying the Royal Free deal, highlighting the delayed revelation of the nature and scale of patient data involved. Section 3 explores DeepMind’s broader ambitions in working with the NHS and the lack of ex ante discussions and authorizations with relevant regulators. It also elaborates on the problematic basis on which data was shared by Royal Free, namely, the assertion that DeepMind maintains a direct care relationship with every patient in the Trust. Section 4 then lays out the lessons that can be drawn from the case study as a whole, assesses at a high level the data protection and medical information governance issues, and then turns to transparency, data value, and market power. 

A startup and a revelation 

In July 2015, clinicians from British public hospitals within the Royal Free London NHS Foundation Trust approached Google DeepMind Technologies Limited, an artificial intelligence company with no experience in providing healthcare services, about developing software using patient data from the Trust. Four months later, on 18 November 2015, [2] sensitive medical data on millions of Royal Free’s patients started flowing into third-party servers contracted by Google to process data on behalf of DeepMind. 

Royal Free is one of the largest healthcare providers in Britain’s publicly funded National Health Service (NHS). The NHS offers healthcare that is free at the point of service, paid for through taxes and national insurance contributions. Beloved in the UK, the NHS is a key part of the national identity. 

DeepMind publicly announced its work with Royal Free on 24 February 2016. No mention was made of the volume or kind of data included in the transfer—millions of identifiable personal medical records. DeepMind said it was building a smartphone app, called ‘Streams’, to help clinicians manage acute kidney injury (AKI). AKI has outcomes ranging from minor kidney dysfunction through to dialysis, transplant, and even death, and is linked to 40,000 deaths a year in the UK. The app, DeepMind claimed, would not apply any of the machine learning or artificial intelligence techniques (effectively, statistical models built using powerful computing resources over large corpora of granular, personalized data) for which it is renowned, and would act as a mere interface to patient medical data controlled by Royal Free. Why DeepMind, an artificial intelligence company wholly owned by data mining and advertising giant Google, was a good choice to build an app that functions primarily as a data-integrating user interface, has never been adequately explained by either DeepMind or Royal Free. 

Contractual foundations vs public relations 

Throughout the whole first phase of the deal, through to October 2016, DeepMind’s publicly announced purposes for holding sensitive data on Royal Free’s patients, i.e. the management and direct care of AKI, were narrower than the purposes that contractually constrained its use of the data. These constraints were described in an eight page information sharing agreement (ISA) between Google UK Limited and Royal Free, signed on 29 September 2015. The Google-Royal Free ISA stated that, in addition to developing tools for ‘Patient Safety Alerts for AKI’ (presumably via the application now badged as Streams), Google, through DeepMind, could also build “real time clinical analytics, detection, diagnosis and decision support to support treatment and avert clinical deterioration across a range of diagnoses and organ systems”. Further, it stated that the data provided by Royal Free was envisaged for use in the creation of a service termed ‘Patient Rescue’, “a proof of concept technology platform that enables analytics as a service for NHS Hospital Trusts”. 

This was the entirety of the language in the ISA specifying the purposes for data sharing between Royal Free and Google over a two-year period ending 29 September 2017. (The ISA was superseded, prematurely, by a new set of agreements signed on 10 November 2016. Those agreements are beyond the scope of the present article and will be considered in future work.) At least contractually, the original ISA seemed to permit DeepMind to build systems to target any illness or part of the body. Further, the ISA contained no language constraining the use of artificial intelligence (AI) technologies on the data, meaning that DeepMind’s assurance that “for the moment there’s no AI or machine learning” was, and remains, rather less convincing than “but we don’t rule it out for the future”. In mid-2016, the app’s online FAQs reiterated the same sentiment, adding that if artificial intelligence techniques are applied to the data in the future, this would be announced on the company’s website, and indicating that the company will seek regulatory approval under research authorization processes. 

Another subject unaddressed in the ISA was the Google question: i.e. how data shared under the scheme would be cabined from other identifiable data stored by Google, given that Google was the signing party to the contract and that the company’s business model depends on monetizing personal data. DeepMind has made regular public assurances that Royal Free data “will never be linked or associated with Google accounts, products or services”. Problematically, these assurances appear to have been given little to no legal foundation in Google and DeepMind’s dealings with Royal Free, even if there is no reason to disbelieve the sincerity of their intent. The reality is that the exact nature and extent of Google’s interests in NHS patient data remain ambiguous.

 Further

Riding high above regulatory streets 

When Royal Free transferred millions of patient records to DeepMind in November 2015, it was done without consulting relevant public bodies. The UK has an Information Commissioner’s Office (ICO), responsible for enforcing the Data Protection Act. The Health Research Authority (HRA) provides a governance framework for health research, and provides a path for the release of confidential health information in the absence of explicit consent, through the Confidentiality Advisory Group (CAG). The Medicines and Healthcare products Regulatory Agency (MHRA) regulates medical devices. None of these bodies were approached about the November 2015 data transfer: not for informal advice from the ICO; not to go through an official and required device registration process with the MHRA before starting live tests of Streams at Royal Free in December 2015; and not to go through the HRA’s CAG, which could have been a vehicle for legitimizing many aspects of the project. (DeepMind has subsequently been in discussion with all of these parties in reference to its Royal Free collaboration and, for several months from July 2016, stopped using Streams until the MHRA-required self-registration process was completed.) 

Instead, the parties went through just one third-party check before transferring the data: the ‘information governance toolkit’, a self-assessment form required by NHS Digital (formerly HSCIC) [48], designed to validate the security of the technical infrastructure DeepMind would be using. The same tool has been used for self-assessment by some 1500 external parties. The tool assists organizations to check that their computer systems are capable of handling NHS data, but it does not consider any of the properties of data transfers such as those discussed in this paper. NHS Digital conducted a routine desktop review of DeepMind’s toolkit submission in December 2015 (after data had been transferred) and approved that the third-party datacenter contracted by Google had adequate security. Beyond this surface check, NHS Digital made no other enquiries. It subsequently confirmed the security of the external datacenter with an on-site check, but it was beyond the scope of NHS Digital’s role to assess the flow of data between Royal Free and Google or to examine any other parts of Google or any aspect of the data sharing agreements. 

While the DeepMind-Royal Free project does have a self-assessed Privacy Impact Assessment (PIA), as recommended by the ICO, the assessment commenced on 8 October 2015, only after the ISA was signed, i.e. once the rules were already set. The PIA also failed to give any consideration to the historical data trove that was transferred under the ISA, as well as omitting to discuss privacy impacts on patients who never have the requisite blood test or otherwise proceed through the AKI algorithm that Streams uses, but whose data is in DeepMind’s servers, and which is formatted, structured, and prepared for repurposing anyway. That is to say, it neglected to deal with the primary privacy issues, as well as to justify the failure to address basic data processing principles such as data minimization. At the time of publication, the ICO was investigating the data transfer (primarily on whether data protection law requirements have been satisfied), as was the National Data Guardian (primarily on the adequacy of the ‘direct care’ justification for processing). The only remaining health regulator in the picture is the Care Quality Commission (CQC), which gave a statement in October 2016 indicating the CQC would consider reported data breaches to the ICO as part of its own inspections, but otherwise declined to comment on the data transfer, indicating that it was broadly supportive of experimentation with big data-based care solutions “if they will lead to people getting higher quality care without undermining patient confidentiality”. 

One year after data started to flow from Royal Free to DeepMind, the basic architecture of the deal had not visibly changed. On the other hand, subsequent deals between DeepMind and other London medical institutions, this time for research rather than direct patient care, were announced in a way that avoided many of the same questions. In these arrangements, data was anonymized before being transferred to DeepMind, and research approval (which raises separate issues, as discussed further below) was sought and gained before any research work commenced. Crucially, DeepMind and its partners were clear about the purposes and amount of data that would be transferred in those deals. 

Assessing the damage 

The most striking feature of the DeepMind-Royal Free arrangement is the conviction with which the parties have pursued a narrative that it is not actually about artificial intelligence at all, and that it is all about direct care for kidney injury—but that they still need to process data on all the Trust’s patients over a multi-year period. This is hardly a recipe for great trust and confidence, particularly given that the arrangement involves largely unencumbered data flows, both with one company, DeepMind, whose raison d’être is artificial intelligence; and its parent, Google, the world’s largest advertising company, that has long coveted the health market. Combined with the unavoidable fact that a sizeable number of patients never need care for kidney injury, the absence of any public consideration of patient privacy and agency, and the lack of safeguards to prioritize public goods and interests over private ones, there are reasons to see the deal as more damaging than beneficial.

HCA Jurimetrics

'Judicial Ideology in the Absence of Rights: Evidence from Australia' by Zoe Robinson, Patrick Leslie and Jill Sheppard comments 

This article investigates whether apex court judges behave ideologically in cases not involving civil, political, or economic rights. Research on comparative judicial behavior has yet to systematically examine the extent to which ideology affects voting behavior is outside of rights-based issues. The study contributes to existing research by exploring the predictive effect of judicial ideology on the entire corpus of judicial votes in a country without a bill of rights: Australia. We develop an ex ante measure of judicial ideology based and uses original data on every decision by Australian High Court Justices between 1995 and 2018 to test whether, and in which types of cases, the votes of Australia’s apex court judges align with their ideology. The results show a strong relationship between ideology and voting behavior, regardless of policy area, suggesting that judicial policy preferences will inevitably find an outlet, even in the absence of authority over rights.

Universities and Privacy

In a recent guest lecture I highlighted structural and cultural problems that contribute to universities having trouble with the protection of personal information (and non-personal information). The Office of the Victorian Information Commissioner has now initiated an examination of privacy and security in Victorian higher education. 

The media release from the Privacy and Data Protection Deputy Commissioner states 

The governance practices and policies of eight Victorian universities that have privacy obligations under the Privacy and Data Protection Act 2014 (Vic) (PDP Act) will be examined. 

The examination will consider each university’s approach to identifying and managing security risks to personal information and supporting policy documentation. The purpose of the examination is to ensure that Victorian universities protect personal information as required by the Information Privacy Principles (IPPs). 

The IPPs are the foundation of privacy law in Victoria and set out the minimum standard for how Victorian public sector organisations should manage personal information. 

IPP 4.1 requires Victorian public sector organisations to take reasonable steps to protect the personal information they hold from misuse, loss, unauthorised access, modification, and disclosure. 

To comply with IPP 4.1, organisations should identify security risks to the personal information they hold and take reasonable precautions to manage those risks. 

At the conclusion of the examination the Privacy and Data Protection Deputy Commissioner will prepare a report outlining the results of the examination.

NSW Integrity Report

The NSW Audit Office report on four NSW integrity agencies (the Independent Commission Against Corruption, the NSW Electoral Commission, the NSW Ombudsman, and the Law Enforcement Conduct Commission) comments 

 The audit found that the current approach to determining and administering annual funding for the integrity agencies presents threats to their independent status. The approach used by NSW Treasury and DPC is consistent with the legislative and Constitutional framework for financial management in New South Wales, but it does not sufficiently recognise that the roles and functions of the integrity agencies that are the focus of this audit are different to other departments and agencies. Specific mechanisms that present threats to the independence of the integrity agencies include the absence of transparency in decisions about funding for the integrity agencies, the means of applying efficiency dividends and budget savings and reform measures, the process of providing additional funding from DPC to the integrity agencies, and requests for the integrity agencies to report to DPC on their activities and outcomes. 

The Auditor-General outlined the principles that inform the report’s recommendations in order to strengthen the financial arrangements for the integrity agencies. These principles are:

• There should be structured oversight by Parliament of the performance and financial management of the integrity agencies. 

• Parliament’s role in the budget process should be expanded to ensure Cabinet is provided with more independent advice on the funding requirements for the integrity agencies. 

• There should be transparency to Parliament and the relevant agency for decisions made about funding for the integrity agencies. 

• The integrity agencies should be required to demonstrate their accountability as prudent managers of their financial resources. 

The report also notes that the NSW Parliament should be consulted when considering the report’s recommendations.

The report  

 also included NSW Treasury and the Department of Premier and Cabinet (DPC) because both departments are involved in the processes that lead to decisions about funding for the integrity agencies and managing access to this funding. 

The Hon. Don Harwin MLC, Special Minister of State, requested this audit under section 27(B)(3)(c) of the Public Finance and Audit Act 1983.

It is relevant in relation to my recent submission to the Victorian Parliament's Integrity & Oversight Committee regarding Victoria's Integrity Agencies and in relation to incapacitation of the Australian National Audit Office after the ANAO has recurrently highlighted substantive problems with Commonwealth government administration.

The report states

The NSW Government, through the Treasurer, is responsible to the citizens of New South Wales for the prudent and responsible management of the state’s finances. The annual budget is the primary process that the NSW Government uses for financial management. Decisions about funding for the integrity agencies are made through this budget process. NSW Treasury provides guidance to all government departments and agencies, including the integrity agencies that are the focus of this audit, on the Government’s priorities for the budget. NSW Treasury also reviews and provides advice to the Expenditure Review Committee of Cabinet on proposals for funding through the budget. 

The integrity agencies are subject to the application of ‘efficiency dividends’ and ‘budget savings and reform measures’, which limit their access to the full funding that has been approved by Parliament. NSW Treasury and DPC manage the application of these limits to the integrity agencies. The integrity agencies are grouped within the DPC ‘cluster’, which is an administrative arrangement created by the NSW Government. Clusters do not have legal status but are used for administrative and financial management. DPC has provided additional funding during the financial year to some of the integrity agencies in the years covered in this audit. DPC also oversees the involvement of the integrity agencies in developing and reporting on their outcomes. This is a requirement of NSW Treasury’s outcome budgeting reforms, which are currently being implemented. 

Each of the integrity agencies is overseen by a parliamentary committee that includes members of both houses of the NSW Parliament. These committees are responsible for reviewing the performance of the integrity agencies that they oversee. They do not have a role in funding decisions. ICAC and LECC each have additional oversight from an Inspector. The Inspector of the ICAC’s role is to oversee the operations and conduct of ICAC to ensure that it complies with the law. The Inspector of the LECC’s role is to oversee the way LECC carries out its functions, with a focus on the legality of LECC’s use of its powers. Neither of these Inspectors has a role in funding decisions. 

The Audit Office of NSW is an independent integrity agency that receives some of its revenue through the NSW Government’s budget process and sits within the DPC cluster. We have taken the following actions to preserve our independence and mitigate potential conflicts of interest that could arise in conducting this audit:

• not considering or commenting on the financial arrangements for our office 

• requesting a deferral of our office’s evidence to an inquiry by the NSW Legislative Council’s Public Accountability Committee that is considering the budget process for integrity agencies. The inquiry includes the four integrity agencies that are the subject of this audit and our office 

• seeking independent legal advice on the framework for the financial arrangements for the integrity agencies 

• using additional internal review processes to provide quality assurance to audit conclusions. 

Conclusion 

The current approach to determining annual funding for the integrity agencies presents threats to their independent status. The approach is consistent with the legislative and Constitutional framework for financial management in New South Wales, but it does not sufficiently recognise that the roles and functions of the integrity agencies that are the focus of this audit are different to other departments and agencies. The government of the day is responsible to the citizens of New South Wales for the prudent and responsible management of the state’s finances. Accordingly, the government of the day has a central role in decisions about funding for departments and agencies and in determining the financial management processes to be applied. This is clearly established in the legislative framework and conventions for managing public funds in New South Wales. This system is primarily designed to determine the funding for departments and agencies that are responsible to ministers. It is less appropriate for integrity agencies because it does not provide additional protection against the risk that funding decisions could be influenced by previous or planned investigations by the integrity agencies. This risk has the potential to limit the ability of the integrity agencies to fulfil their legislative mandate. The extent and nature of this risk differs for each of the integrity agencies. This is outlined in the key findings section below and described in detail in Chapters 2–5 of this report. 

Aspects of the financial management mechanisms used to administer funding for the integrity agencies create tensions with their independent status. These mechanisms include the means of applying efficiency dividends and budget savings and reform measures, the provision of additional funding from DPC to the integrity agencies, and requests for the integrity agencies to report to DPC on their activities and outcomes. NSW Treasury and DPC have administered efficiency dividends and budget savings and reform measures to the integrity agencies. This results in the integrity agencies not being able to access the full funding approved by Parliament. There are two competing interpretations of appropriation legislation that lead to different conclusions about whether there is a clear legal basis for doing this. NSW Treasury and DPC focus on the fact that the Appropriation Act provides funding for the integrity agencies to a Premier, rather than the agency, and does not state that a Premier must provide the full amount of funding approved to the agency. This interpretation leads to the view that a Premier can restrict access to appropriation funding that was approved by Parliament. An alternative interpretation of the Appropriation Act would consider factors specific to the integrity agencies that differentiate them from other agencies subject to these measures. These factors include that the integrity agencies are independent of ministerial control, accountable to Parliament for performing specific legislated functions, and some may conduct investigations that involve a Premier, or DPC or NSW Treasury. If this alternative interpretation is used, then the reduction of the integrity agencies’ access to appropriation funding approved by Parliament could diminish the independent status of the integrity agencies and limit their ability to fulfil their legislative mandate. 

DPC has given additional funding to three of the integrity agencies in recent years in response to requests from the agencies. If the integrity agencies require additional funding during the year, the only mechanism available is to seek funding from DPC. This creates a potential threat to the independence of the integrity agencies. Asking DPC to make decisions about funding allocations between an integrity agency and another agency in the DPC cluster is inappropriate because DPC is not responsible for the functions or actions of an integrity agency. It is also possible that DPC could be the subject of an investigation conducted by an integrity agency. DPC has advised that it considers these risks more theoretical than real. 

DPC’s provision of $2.5 million in additional funding to ICAC in 2019–20 may not have been consistent with the Appropriation Act 2019 (the Act), because of a change to the Act compared to previous appropriation legislation. The additional funding that was provided to ICAC in 2019–20 by DPC had been appropriated to DPC under Part 2 of the Act. The Act specified that funding appropriated under Part 2 could only be used for the purposes specified in that Part. ICAC receives its appropriation under Part 4 of the Act. It is contestable as to whether the purpose of an appropriation under Part 2 of the Act would include providing funding for an agency that receives an appropriation under another part of the Act. The integrity agencies have been asked to report on activities and outcomes to DPC as part of the outcome budgeting reforms that are being implemented by NSW Treasury. This is inconsistent with their independent status because the integrity agencies are accountable to Parliament for their activities, not DPC or a Premier. 

Our audit also assessed the integrity agencies’ systems for planning, budgeting and monitoring the efficiency of their work. We did not find major deficiencies in the management practices of the integrity agencies. We did identify opportunities for improvement in each agency. These are specific to the circumstances of each agency and are outlined in the key findings section below and Chapters 2–5 of this report.

Key findings are 

The role of the Executive Government in deciding annual funding for the integrity agencies presents threats to their independence The financial arrangements used to determine the funding for the integrity agencies are based on the legislative and Constitutional framework in New South Wales. These arrangements reflect the fact that the government of the day is responsible for managing the state’s finances. Under this framework, the government of the day initiates funding legislation, funding is given to a minister for the services of the agencies, and the minister retains ultimate accountability to Parliament for the expenditure of the funding. Accordingly, the Executive Government – through Cabinet, NSW Treasury and DPC - is involved in the processes that determine the funding for the integrity agencies that are the focus of this audit. This system principally exists to enable funding decisions for NSW Government departments and agencies. These departments and agencies are created by the Executive Government and ministers oversee them directly. 

The role of the integrity agencies includes providing independent scrutiny of the Executive Government. Work done by the integrity agencies can potentially have a negative impact on the NSW Government, or individual ministers or senior public servants. As a result, there is a risk that the previous or planned work of the integrity agencies could influence the decisions made about their funding. 

The existing safeguards to this risk are not sufficient. Decisions about funding for integrity agencies are not transparent and there are no mechanisms for the agencies to question or challenge decisions made. The NSW Parliament reviews appropriation legislation but is not involved in the process of developing the annual NSW budget and does not see budget proposals that were made by the integrity agencies during the budget development process. Agencies can report to their parliamentary committees, but these committees do not have a role in decisions about their funding. The impact of potential threats to the independence of the integrity agencies, and their ability to fulfil their legislative mandates, is specific to each agency due to differences in their functions and jurisdiction. These are discussed separately for each agency in this report. 

The legal basis for restricting the integrity agencies’ access to appropriation funding is contestable 

Limits on access to the full appropriations approved by Parliament have been applied to the integrity agencies in recent years. These have been set by the ERC and administered by NSW Treasury and DPC. There are two competing interpretations of appropriation legislation that lead to different conclusions about whether a Premier has a clear legal basis for restricting access to funding that has been appropriated for the integrity agencies. 

NSW Treasury and DPC have interpreted the Appropriation Act in a way that concludes a Premier is able to restrict the integrity agencies’ access to appropriation funding. This interpretation is based on the following key points:

• The Appropriation Act specifically appropriates funding to a Premier, rather than to the head of an integrity agency. This reflects the established Westminster convention that a minister is ultimately accountable to Parliament for the expenditure of public funds. 

• The Appropriation Act specifies a maximum amount of funding that can be withdrawn for the services of each of the integrity agencies, but it does not specify that a Premier must provide the full amount of funding approved to the agencies. 

• The Government Sector Finance Act 2018 contemplates the existence of unused appropriations by making provision for the return of any funds that are not used within the financial year to the Consolidated Fund. 

NSW Treasury and DPC’s interpretation is consistent with relevant financial legislation and financial administration conventions in New South Wales, but it does not sit well alongside the legislated role and functions of the integrity agencies. An alternative approach to interpreting the Appropriation Act would consider the contextual factors and legislation specific to each integrity agency. These include:

• The appropriations for the integrity agencies are made under a discrete Part of the Appropriation Act. This indicates an intention to distinguish between appropriations for integrity agencies and appropriations for other government departments and agencies. 

• The integrity agencies are established by separate Acts of Parliament which give them independence from ministers. This is different to the arrangements for other departments and agencies, which are established by Executive order and cannot act independently of their minister. 

• The Appropriation Act provides for appropriations to a Premier for the services of the integrity agencies that are specified in legislation. The integrity agencies are accountable to Parliament for performing these functions. 

• An integrity agency may undertake an investigation that involves a Premier or DPC or NSW Treasury.

If this alternative interpretation is used, then a Premier would require an express source of power to limit the availability of appropriation funding to the integrity agencies. If a Premier could reduce the integrity agencies’ access to funding that was appropriated by Parliament, their independence could be compromised and their ability to fulfil their legislative mandate could be diminished. 

The system for providing additional funding to the integrity agencies creates potential threats to their independence 

ICAC, NSWEC and NSWO each received additional funding from DPC during the financial year in the period 2014–15 to 2018–19. To access this funding, the heads of the integrity agencies wrote to the DPC Secretary requesting additional funding and providing a brief description of the reason it was needed. Most of the requests for additional funding related to the cost of conducting work that was not anticipated at the time the annual appropriations for the integrity agencies were set. 

If the integrity agencies require additional funding during the year, the only mechanism available is to seek funding from DPC. This creates a potential threat to their independence. Asking DPC to make decisions about funding allocations between an integrity agency and another agency in the DPC cluster is inappropriate because the integrity agencies are not accountable to DPC and DPC is not responsible for the functions or actions of the integrity agencies. In addition, it is possible that DPC could be the subject of an investigation conducted by an integrity agency. There are no criteria or guidelines for integrity agencies seeking additional funding from DPC. This means there is very little transparency to Parliament about the requests made and the reasons that they were granted. 

DPC’s provision of additional funding to ICAC in 2019–20 may not have been consistent with the Appropriation Act 2019 

DPC provided an additional $2.5 million to ICAC in 2019–20 in response to ICAC’s request for funding to cover the cost of a public inquiry that arose during the financial year. This was provided outside the annual budget process. DPC sourced the funding from within its appropriation funding from that year. 

DPC received its appropriation funding under Part 2 of the Appropriation Act 2019. Section 25 of the Act stated that this funding could only be used for the purposes specified in Part 2 of the Act. The appropriation for ICAC was made under Part 4, a different part of the Appropriation Act 2019. It is contestable as to whether the purpose of the appropriation for DPC could extend to giving additional funding to ICAC, which was funded under a different part of the Act. 

The Appropriation Acts in the years 2014–15 to 2018–19 did not include provisions stating that funding appropriated under Part 2 could only be paid out for the purposes specified in Part 2. This indicates that the additional funding provided from DPC to integrity agencies in those years would not necessarily have been inconsistent with the relevant Appropriation Acts. 

Asking the integrity agencies to report to DPC on their activities and outcomes is inconsistent with the independence of the integrity agencies Outcome budgeting was introduced as a management practice in New South Wales in 2017–18. Under this approach to budget development, agencies are required to link their budget submissions to a ‘state outcome’. The state outcomes are assigned by NSW Treasury to the departments that have been designated as ‘principal departments’ for each cluster. These departments are then responsible for achieving the outcomes assigned to them. The integrity agencies have been asked by DPC to develop plans and report to it against the state outcome of ‘accountable and responsible government’. DPC is accountable to the Premier and the Cabinet for delivering this outcome. The outcome itself is broad enough to be consistent with the general role and functions of the integrity agencies. However, the integrity agencies are not subject to direction by a minister or department in their activities and report directly to Parliament on their functions. This makes it inappropriate for the integrity agencies to be asked to report against objectives and outcomes that are set by the NSW Government and administered by DPC. 

Some comparable jurisdictions give parliament a more direct role in funding for integrity agencies 

In several comparable jurisdictions, parliamentary committees provide advice on the budgets for integrity agencies. In some of these jurisdictions, the heads of integrity agencies are formally classified as Officers of Parliament to signify a more direct relationship with Parliament. The use of these mechanisms in other jurisdictions is intended to provide a clearer distinction between integrity agencies and other government departments and agencies. This aims to provide additional safeguards to the independence of integrity agencies, while also improving the transparency of the decision-making for integrity agency budgets and improving the transparency of integrity agency performance to Parliament and the public. 

ICAC’s financial arrangements and management practices 

ICAC’s legislation establishes it as an independent agency that is accountable to Parliament. Decisions about the annual appropriation for ICAC are made by Cabinet, with advice from NSW Treasury. Members of Cabinet or NSW Treasury could be the subject of, or more broadly affected by, an ICAC investigation. NSW Treasury advises that it provides ICAC's funding submissions directly to Cabinet without making changes. However, NSW Treasury does provide separate advice to Cabinet on these submissions. There is no independent advice on ICAC’s funding requirements and there is no transparency to Parliament about the reasons for decisions made about ICAC’s budget. The absence of these safeguards in the current financial arrangements creates a threat to ICAC’s independence and has the potential to limit its ability to fulfil its legislative mandate. 

ICAC submitted budget proposals seeking increases to its appropriation funding in several recent years. The budget proposals related to funding to expand its workforce to respond to increases in the volume and complexity of its work. Some of these proposals were rejected without reasons being provided. There are no formal mechanisms available to ICAC to question or challenge these decisions. The process available to ICAC to request additional funding outside the annual budget creates further risks to its independence, as described above. 

ICAC’s management practices are suitable for its needs. Its staff use structured processes for prioritising work against its legislative mandate and it has conducted recent reviews to assess its operational efficiency. ICAC's internal budgeting processes are adequate but could be improved with better documentation of the reasons for its budget decisions. 

NSWEC’s financial arrangements and management practices 

NSWEC’s legislation states that it should conduct elections and investigate potential breaches of electoral law independently and be accountable to Parliament. Decisions about the annual appropriation for NSWEC are made by Cabinet. It is possible that NSWEC’s investigations of electoral integrity could include members of Cabinet or the political party that holds government. There is a risk that decisions about its funding could be influenced by the conduct of these investigations. If realised, this would be a threat to NSWEC’s independence and ability to fulfil its legislative mandate. NSWEC has not received the full funding amount it has requested in recent years. There is inadequate transparency about how funding decisions were made and there are no formal mechanisms to question or challenge these decisions. 

The conduct of elections is a key element of a democratic system and under-funding this function could have serious implications. NSWEC’s requests for additional appropriation funding are assessed alongside the priorities of the government of the day. Its role transcends these immediate priorities and there is a risk that its funding requirements may not be prioritised. 

NSWEC’s management practices are suitable for its needs. Its internal budgeting processes and efficiency programs are clear and well documented. NSWEC has identified options to improve its operational and corporate efficiency but has not implemented all of these. 

NSWO’s financial arrangements and management practices 

NSWO’s legislation makes it clear that it should operate independently of the agencies it oversees and be accountable to Parliament. NSWO’s investigations do not include members of Cabinet, except in relation to Public Interest Disclosures made about a minister, so the risk that decisions about its budget could be affected by its investigations is relatively lower. However, NSWO's investigations can comment on and make recommendations about government policies, which may have been endorsed by Cabinet or an individual minister, and its investigations cover systemic issues for which ministers and the heads of government departments are responsible. NSWO faces a further challenge in its ability to make compelling budget proposals under the current financial arrangements. Its funding requests are assessed alongside the government’s priorities, but its work is unlikely to align directly with these priorities. 

NSWO’s management practices are suitable for its needs. NSWO has assessed its operational and corporate efficiency recently and has implemented major changes to its operating model in response to this. Its internal budgeting process is adequate but could be improved by being documented more thoroughly. 

LECC’s financial arrangements and management practices 

LECC’s legislation states it should operate independently of the agencies it oversees and be accountable to Parliament. LECC’s jurisdiction does not include members of Cabinet, NSW Treasury or DPC. However, LECC’s investigations have the potential to have an impact on a Minister for Police, who is a member of Cabinet, and the government of the day. There is a risk that decision makers for LECC’s funding could be influenced by these considerations. While LECC has not sought increases to its appropriation funding in recent years, there are no formal mechanisms to question or challenge these decisions if it did have concerns about its funding in the future. Unlike the other integrity agencies in this audit, LECC is not classified as a separate GSF agency under the Government Sector Finance Act 2018. This difference means that LECC has less independence from the Executive Government, because LECC would have to comply with a Treasurer’s Direction even if it believes it is not consistent with the independent exercise of its functions. 

LECC's management practices are suitable for its needs. LECC's internal budgeting processes are clear and documented and it has identified and implemented operational and corporate efficiency savings in several areas. LECC published a new strategic plan in July 2020. Over the first three years of its operations from 2017, LECC had not conducted effective strategic planning, which made it difficult for LECC to demonstrate that it had a cohesive approach to its operations across the agency during this time.

The resultant recommendations are 

1. Acknowledging that the government of the day is responsible for the financial management of the state, NSW Treasury and DPC should implement a funding model for the integrity agencies that addresses potential threats to their independence while ensuring their accountability. This should be based on the following principles:

• The integrity agencies are required to demonstrate their accountability as prudent managers of their financial resources. 

• Parliament’s role in the budget process should be expanded to ensure Cabinet is provided with more independent advice on the funding requirements for the integrity agencies. 

• There should be transparency to Parliament and the relevant agency for decisions made about funding for the integrity agencies. 

• There should be structured oversight by Parliament of the performance and financial management of the integrity agencies. 

2. NSW Treasury and DPC should reassess whether the process used to apply efficiency dividends to the integrity agencies is consistent with appropriation legislation and the independence of the integrity agencies. 

3. NSW Treasury and DPC should ensure that the use of cluster-based financial management arrangements does not diminish the independence of the integrity agencies and is consistent with the requirements of appropriation acts and other relevant legislation. This includes ensuring that:

• the provision of additional funding to the integrity agencies outside the budget process is consistent with appropriation legislation and includes sufficient safeguards to protect the independence of the integrity agencies 

• any request for the integrity agencies to report on activities and outcomes as a part of outcome budgeting reforms is consistent with their independence.

Trust in Health Data Collection and Sharing

I have made a long and in places mordant response to the current MyHealth Record Review, in part quoting laments by the person conducting the review when he was the Australian Information Commissoner.

'Understanding trust in digital health among communities affffected by BBVs and STIs in Australia' by Christy Newman, James MacGibbon, Anthony K J Smith, Timothy Broady, Deborah Lupton, Mark Davis, Brandon Bear, Nicky Bath, Daniel Comensoli Teddy Cook, Elizabeth Duck-Chong, Jeanne Ellard, Jules Kim, John Rule and Martin Holt at the UNSW Centre for Social Research in Health (2020) comments 

Despite extensive government investment to expand digital health, minimal research has been conducted on community views of these systems in Australia. In particular, there has been scant attention to the perspectives on digital health of populations affected by blood-borne viruses (BBVs) and sexually transmissible infections (STIs) has received little attention. 

The Trust in Digital Health study was conducted by the Centre for Social Research in Health in partnership with community organisations representing four of the priority populations in the current national BBV/STI strategies: people with HIV, trans and gender diverse people, sex workers, and gay and bisexual men. 

Our methods included a national, online cross-sectional survey (April–June 2020) of the general population, including specific recruitment targets for the four priority populations. We also conducted semi-structured interviews with key informants (March–June 2020) with expertise in communities affected by BBVs/STIs, stigma and marginalisation. 

The survey sample included 2,240 eligible participants, including 600 (26.8%) classified as members of one or more priority populations. Overall, priority populations reported the lowest levels of trust in digital technologies and in some health care services, and the most frequent experiences of stigma. 

Priority populations were more likely to understand the potential benefits of My Health Record, but also to have opted out of having one. These groups were also more likely to have made use of digital services to access essential health care and medications during the COVID-19 response, and the least likely to be willing to share personal information with health authorities. 

Key informants were keenly aware of the promise and benefits of digital health, but also concerned about the risks and consequences of communities affected by BBVs/STIs engaging with these systems. Specific issues related to different populations, but there was a shared focus on the harmful impacts of experiencing stigma and discrimination in health settings. Key informants also consistently reported that these communities typically fear that their personal information is more easily shared through digital means without the consent of the affected person, with a range of potential social, legal and economic consequences. 

A range of mechanisms and conditions for building trust in digital health were also discussed, including the need for significant reforms in system design, in community consultation processes, and in the policy and legal contexts that shape the everyday lives, rights and wellbeing of these communities. 

The variety of evidence we collected suggests that trust in digital health is influenced less by technical design or digital literacy, and more by the relational and structural factors which underpin trust in the institutions responsible for health system design and regulation. 

To address these concerns, we recommend finding new and more effective ways to ensure that consent is secured to collect, store and share health data, and that consent is specific, dynamic, and informed. Major investments in discrimination reduction strategies at every level of the health care system are also necessary to ensure that health care is accessible, competent, and safe. Resources should be directed towards remediating the legal and policy conditions that continue to discourage some communities from participating in digital health, and in supporting meaningful consultation with peer-based organisations who have the trust of communities affected by BBVs and STIs.

The authors report

Access to and knowledge about My Health Record 

 

Nearly a quarter of participants (23.3%) had an Australian electronic health record (My Health Record) and had accessed it at least once, while another quarter (25.8%) had a record but had never accessed it. More than a quarter of participants (29.4%) had opted out of or deleted their record. The remaining participants did not know if they had a record (18.0%) or were not eligible for one (3.5%). See Table F1. Priority populations were much more likely to have opted out of My Health Record than the general population sample. People with a university degree and people with one or more long- term health conditions were also more likely to have opted out, while people who had poor/fair health (self-rated) were less likely to have opted out (see Figure F1). 

 

Less than a third of participants (28.8%) reported knowing ‘quite a bit’ or ‘a lot’ about My Health Record. People with a university degree, people with one or more long-term health conditions, and trans and gender diverse people were more likely to know more about My Health Record, while people who had poor/fair health were less likely to know about it (see Figure F2). 

 

Common sources from which participants learned about My Health Record were media articles including social media (49.0%), government advertising campaigns (44.2%) and conversations with friends and family (30.2%). Overall, a relatively small proportion of participants (15.7%) had learned about My Health Record from information provided by community organisations; however, sex workers, people with HIV, trans and gender diverse people, and people with a university degree were more likely to have learned about it via this source (see Figure F3). Further information about participants’ access to and knowledge about My Health Record is shown in Table F1. 

 

Use of My Health Record among participants who had a record 

 

Among the 1,100 participants who had a My Health Record, frequency of use was relatively low. Small numbers of participants had accessed their record weekly (0.3%) or monthly (5.2%) during the past year. Over a third (34.4%) had accessed their record once or twice during the past year. Just over half (52.5%) of all participants who had a My Health Record had never accessed it, while a further 7.7% had accessed their record more than a year ago. 

 

The most common reasons for accessing My Health Record were to know what was in the record (46.7%), followed by keeping informed (20.8%) and making sure the record was accurate (18.9%). Among participants who had accessed their record, the most common interactions on the platform were adding personal notes (28.5%), choosing what content could be seen (24.3%), setting access notifications to show when someone had viewed or changed the record (18.0%) and setting health care service access restrictions (17.2%). 

 

Among participants who had a My Health Record, participants indicated that the most useful information in the record was test results (66.2%), medication history (58.7%), immunisation history (57.2%) and doctors’ notes (55.1%). 

 

More than half of participants (54.0%) were unsure if their doctor had accessed or used the participant’s My Health Record. Nearly a quarter (24.7%) reported that their doctor(s) had added information to their record and nearly a fifth (19.8%) reported that their doctor(s) had accessed information from the record. 

 

Relatively small numbers of priority population groups had a My Health Record and had accessed it, so further analyses of associations between priority population membership and different types of use of My Health Record were judged to be unreliable. Further details about the use of My Health Record and potential concerns about it are shown in Table F2. 

 

Reasons for opting out of My Health Record 

 

Reasons for opting out of or deleting My Health Record are shown in Table F3. Nearly all participants who had opted out of My Health Record indicated they had concerns about it. The most common reason was concern that the government could not adequately protect their privacy (79.3%), followed by concerns about data being shared between government agencies without consent (67.3%) and medical information being hacked or leaked (67.2%). 

 

Priority populations were more likely to endorse a range of concerns relating to data privacy, data being shared without their consent, and concerns about being treated disadvantageously by the government and health care professionals. In particular, sex workers were much more likely to report opting out of or deleting My Health Record due to concern about health professionals not treating them with dignity and care, which was a concern shared by trans and gender diverse people and people with HIV (see Figure F4). Sex workers were also much more likely to report opting out due to concern about data being shared between government agencies without their consent and due to concern that the government might use their data in ways that disadvantaged them. These concerns were shared by gay and bisexual men and trans and gender diverse people (see Figures F8 and F10). Other significant associations are shown in Figures F4–F12. 

 

Information that might have been useful among participants who had opted out of My Health Record 

 

Among participants who had opted out of or deleted My Health Record, the information that was most commonly rated as useful if they had kept a record was their immunisation history (55.2%), test results (55.0%), medication history (50.8%) and doctors’ notes (47.0%). These types of information were also perceived as the most useful by participants who had a record (Table F2), which suggests that the perceived utility of the types of information stored in My Health Record was similar regardless of the concerns that some participants had about the platform. 

 

Willingness to share My Health Record data with health care services 

 

x Participants were asked how willing they would be to allow relevant information from an electronic health record to be shared with health care services. All participants were asked these items regardless of whether they indicated they had opted out of or deleted My Health Record, but participants who responded that they were not eligible for a record were not asked these items. 

 

All participants were shown the items in relation to GP services, pharmacies, dentists, in-patient hospital and out-patient hospitals or specialist clinics. Participants were only asked about the other health care services if they had attended them in the past year, e.g., community-based or peer-led sexual health clinics, allied health services and mental health services. Responses were scored on a Likert-type scale from (1) ‘Not at all willing’ to (5) ‘Very willing’, and willingness was defined as having a score of four or more on the scale (i.e., Willing/Very willing). All aggregated data for these measures can be found in Table F4. 

 

Overall, most participants (77.4%) indicated that they were willing for relevant information to be shared with their GP, followed by in-patient hospitals (73.9%), out-patient hospitals or specialist clinics (68.5%), dentists (56.9%) and pharmacies (56.0%). However, priority population groups were generally less willing to share relevant information from an electronic health record with health care services. 

 

Specifically, sex workers, people with HIV and trans and gender diverse people were generally less willing to share relevant information from an electronic health record with GPs (seeFigure F13), pharmacies (see Figure F14), in-patient hospitals (see Figure F16), and out-patient hospitals or specialist clinics (see Figure F17). Sex workers and trans and gender diverse people were generally less willing to share relevant information from an electronic health record with dentists (see Figure F15). In contrast, gay and bisexual men were generally more willing to share relevant information when it came to GPs, in-patient and out-patient hospitals or specialist clinics (Figures F13, F16–F17). 

 

Willingness to share My Health Record data with government agencies and industry bodies 

 

Participants were also asked how willing they would be to allow relevant information from an electronic health record to be shared with health-related government agencies, non-health- related government agencies, health insurance companies, law enforcement and banking or financial institutions. All aggregated data for these measures can be found in Table F5. 

 

Factors associated with willingness to share My Health Record data with government agencies and industry bodies are shown in Figures F18–F22. Priority populations, people with a university degree and one or more long-term health conditions were generally less willing to share My Health Record data with these organisations. Of note, trans and gender diverse people and sex workers were far less likely to support My Health Record data being shared with these organisations. 

 

Support for sharing de-identified My Health Record data for research 

 

Participants were asked how much they supported their de-identified health information from My Health Record being shared for non-commercial research, commercial research, research by health-related government agencies, and research by non-health-related government agencies. Examples of the types of institutions that were included are shown in Table F6. De-identified was defined as having one’s name, address, contact details and other identifying information removed. All participants were asked about these items regardless of whether they indicated they had opted out of or deleted My Health Record, but participants who responded that they were not eligible for a record were not asked these questions. 

 

Responses were scored on a Likert-type scale from (1) ‘Strongly oppose’ to (5) ‘Strongly support’. Support was classified as a score of four or more on the scale (i.e., Support/Strongly support). Across the whole sample, support was highest for sharing de-identified data with health-related government agencies (44.7%), but support was lower among priority populations; this was followed by support for sharing data for non-commercial research by a university or research institute (43.7%), which was generally higher among priority populations. Support for de-identified data being used for research by commercial and non-health-related government agencies was generally low. All aggregated data for these measures can be found in Table F6.

Disinformation

The RAND 'Russian Propaganda Hits Its Mark: Experimentally Testing the Impact of Russian Propaganda and Counter-Interventions' study by Todd C. Helmus, James V. Marrone, Marek N. Posard and Danielle Schlang comments 

Given the size and scope of the Russian propaganda campaign that targeted the U.S. electorate in 2016, it is critical to understand both the impact of that campaign and the mechanisms that can reduce the impact of future campaigns. This report, the third in a four-part series, describes a study conducted by RAND researchers to assess how people react to and engage with Russia's online propaganda and to determine whether the negative effects of that engagement can be mitigated by brief media literacy advisories or by labeling the source of the propaganda. Russia targets the extremes on both sides of the political divide, and a short media literacy video and labeling intervention were both shown to reduce willingness among particular categories of participants (defined by news consumption habits) to "like" the propaganda. This is one of the first studies to show that Russian propaganda content works, at least partially, as it is intended to — that is, it successfully elicits strong partisan responses that may help it exacerbate divisions in American society. For certain audiences, the content is also likeable and sharable. This study is among the first to use actual Russian propaganda in a randomized controlled trial. 

 The Key Findings are

Russian content is particularly effective at achieving its goal of generating strong reactions along partisan lines Strongly positive emotional reactions to such social media content increase the chances that participants will self-report "liking" and sharing it. Revealing the source of the Russian memes reduced the probability of a positive emotional response to content that aligned with a participant's ideology Compared with the emotional effects generated among participants for whom the source was hidden, participant willingness to engage by "liking" or sharing material for which the source was exposed was weaker. 

In the overall sample, revealing the source reduced the likelihood that participants would "like" pro-U.S. Russian content, but no other effects for "liking" or sharing were statistically significant. Revealing the source and showing a video about media literacy had a stronger effect on two particular audience profiles - 

Members of a Partisan Left group read the New York Times, lean left politically, and embody several other characteristics. 

Members of a Partisan Right get their news from Fox News or from politically far-right outlets and lean right politically.

Participants in both of these groups exhibit strong responses to Russian memes that align with their political ideologies, and both groups demonstrated a reduced emotional response to that propaganda and were less likely to "like" that propaganda when informed of its Russian source. The video on media literacy also appeared to reduce the number of self-reported "likes" for pro-U.S. and politically right-leaning Russian content in the Partisan Right group.

The study's Recommendations are - 

 It is difficult to assess the degree to which revealing the source is a feasible intervention. There might be immense value in developing a third-party plug-in that can unmask the source of state-sponsored content. Providing generalized warnings might be an alternative to directly acknowledging sources. Specifically, there might be utility in warning audiences that Russia or other state actors disseminate this type of propaganda and that audiences should be highly suspicious of sources and their intent. It also might be possible to inoculate audiences against Russian propaganda by pairing the warning with a weakened example of a Russian propaganda meme and providing directions on how to refute the meme. 

Researchers should test inoculation's effectiveness on Russian propaganda, although the variety of topics targeted by the Russians might complicate research design. Social media–based media literacy efforts offer a low-cost and highly scalable way to supplement more educational-based media literacy programming. 

This study suggests that such efforts might be a useful tool to counter some forms of Russian propaganda. The model that this study used for testing reactions to Russian propaganda and evaluating the impact of interventions can be used more broadly to understand the effects of adversarial propaganda.

Palmer, Principle, Procedure

Universal Music Publishing Pty Ltd v Palmer [2020] FCA 1472 - the 'Twisted Sister' dispute - is of interest to copyright and procedure scholars.

The judgment notes 

 [1] This is a case about copyright infringement. It arises out of the alleged use by the United Australia Party (UAP) during the last federal election campaign of a substantial part of the music and lyrics of the song “We’re Not Gonna Take It”. The undisputed evidence is that the song was composed and written by Dee Snider, the lead singer of the American heavy metal band, Twisted Sister. While the respondent, Clive Palmer, initially disputed the applicants’ copyright, agreed facts filed in the proceeding include the facts that copyright in the song is held by the second applicant, Songs of Universal, Inc. and that the first applicant, Universal Music Publishing Pty Ltd is the exclusive licensee. Evidence has been filed disclosing that inquiries were made of Universal Music Publishing on behalf of the UAP, of which Mr Palmer is the registered officer, about licensing the song for a “re-recording with local talent”, that Mr Palmer declined to pay the licensing fee, and that he went on to authorise or arrange the production of a recording of “Aussies Not Gonna Cop It” and videos which incorporated it. Mr Palmer denies that the recording and videos use a substantial part of the Twisted Sister song. He also raises a defence of parody or satire. ... 

[3] On 7 October 2020 Mr Palmer filed an interlocutory application seeking orders that the trial be vacated and that the costs of the application be the parties’ costs in the cause. The application was supported by an affidavit sworn by Mr Palmer’s lawyer, Sameh Morris Iskander. The application was fixed for hearing yesterday. That day an amended interlocutory application was filed seeking in the alternative to the vacation of the trial an order that any cross-examination and re-examination of Mr Palmer and the parties’ oral closing arguments take place on a date to be fixed. ... 

 [5] At the hearing of the amended interlocutory application both sides presented written submissions and spoke to those submissions. At the conclusion of the argument I refused the application with costs and, after Mr Palmer’s barrister informed the Court that he required reasons, indicated I would give my reasons today. These are those reasons. ... 

[7]    The proceeding was fixed for hearing on 4 December last year. At that time the expectation of the Court and the parties was that the hearing would take place in court in Sydney. Then the COVID-19 pandemic struck. Initially, this Court, like most Australian courts, took the precaution of deferring hearings in non-urgent cases. But the Court quickly adapted to the crisis by using digital technology to provide virtual hearings. 

[8]    My preference and that of the parties was always for an in-person hearing. But the Court has the power to order that any testimony be given by video link, audio link or other appropriate means: FCA Act, s 47A(1). While certain conditions must be satisfied before the power is exercised (see s 47C), it was no part of Mr Palmer’s argument that these conditions were not satisfied in the present case. 

[9]    On 7 July 2020 my chambers contacted the parties to seek their views on whether an in-person hearing was essential or appropriate. Both sides indicated that it was their “preference”. Universal’s lawyers all live in Sydney and all but three of their witnesses live in NSW. Universal noted that two of their witnesses were located in the United States. Given the international travel restrictions then in place, they informed the Court that any cross-examination of those witnesses could be conducted through Microsoft Teams, the platform the Court had been using and continues to use to conduct hearings during the pandemic. One of Universal’s witnesses lives in Victoria. Mr Palmer and all his other witnesses are based in Queensland. So are his lawyers. On 20 July 2020 Mr Iskander notified the Court that Mr Palmer agreed with Universal’s proposal, “subject to any mandatory national travel restrictions”. 

[10]    On 7 September 2020 I informed counsel for the parties that I had not yet obtained approval for witnesses to give evidence in person and the Court’s position was that there were to be no witnesses from interstate. On that occasion Mr Palmer’s then counsel, Edmund Robinson, was justifiably concerned that his client would be disadvantaged if Universal’s lawyers and some of their witnesses were able to appear in person but Mr Palmer and all of his witnesses could not. I concluded that there were two options available to the Court: adjourning the hearing or conducting it entirely remotely through Microsoft Teams. Mr Palmer embraced the first option. Universal vigorously opposed it. Through his counsel, Mr Palmer raised no objection, however, to a purely remote trial. The parties then conferred on a remote trial protocol. The protocol was agreed on 1 October 2020. ... 

[13]    In his submissions advanced by new counsel only recently briefed, Mr Palmer claimed that at the time of the last case management hearing he did not appreciate the extent to which his credibility was in issue in relation to his primary defence that the recording and videos said to infringe Universal’s copyright were made for the purpose of parody or satire. He claimed that he only appreciated this when he read Universal’s outline of submissions on 1 October 2020. He pointed to three matters. The first was the argument that the defence should be rejected, amongst other reasons, because Mr Palmer did not intend a parodic or satirical purpose when he authorised the creation and exploitation of the recording and videos or, to the extent that the recording and videos had such a purpose, that purpose was “either a pretence for, or has been supplanted by an ulterior, political purpose”. The second was the submission that Mr Palmer knew of Universal’s copyright in the musical and literary work when he exploited it. The third was that he deliberately intended to discourage Universal and Mr Snider from enforcing their rights. He pointed out that the first two submissions are directly contrary to Mr Palmer’s evidence in chief that his purpose was parodic and satirical and that he did not believe that Universal owned copyright in “We’re Not Gonna Take It”. ... 

[15]    Mr Palmer argued that, in circumstances where issues of credit arise, it is in the interests of justice that the trial be adjourned until witnesses may give evidence in person. He submitted that the interests of justice are served by ensuring that “the highest quality evidence is put before the court” and in-person assessment of witnesses and cross-examination is “critically important” when credit is in issue. Relying on Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) (2009) 181 FCR 152 at [78], he contended that in such a case “evidence should be given in the solemnity of a court room, before a judge and under the rigors of cross-examination” and “litigants should not lightly be deprived of the forensic benefits that attend the cadence and chemistry between physically proximal bar, bench and witness box”. He acknowledged that these matters had to be balanced against any prejudice occasioned by the adjournment but submitted that there was no such prejudice. ...

Katzman J appears to be unimpressed by some of the arguments, with the judgment stating 

[27]    Second, there can be no doubt that Mr Palmer would have been aware that his credit was likely to be an issue in the proceeding from the outset. Universal’s claims include one for additional damages. Universal pleads that Mr Palmer knew that a licence was required to use both the musical and the literary work in the advertisements because his agent applied for a licence but, despite the fact that a licence was not procured, he reproduced and/or authorised the reproduction and/or communication to the public of a substantial part of that work. Universal also pleads that he ignored Universal’s requests that he cease doing so. At a case management hearing on 27 July 2020 Mr Flynn SC on behalf of Universal told the Court that Mr Palmer’s credit “may be an issue” “on the additional damages type questions”.

Accordingly 

[28]    Mr Palmer’s claim that he did not appreciate the extent to which his credibility was in issue is not supported by evidence. Mr Iskander is silent about the subject. In those circumstances his submission to that effect is entitled to little, if any, weight. In any event, it is difficult to see how Mr Palmer could have been unaware that his evidence as to his purpose was likely to be called into question. Mr Palmer has long been required for cross-examination. The second and third matters upon which counsel relied were raised in Universal’s statement of claim. And in its reply, filed on 20 March 2019, Universal denied Mr Palmer’s defence that the incorporation and reproduction of the musical and literary work was for the purpose of parody or satire and asserts that it was for the purpose of political advertising. ...

As to the procedural issue -  

[32] ... This year I have presided over a number of cases in which witnesses have been cross-examined using the Microsoft Teams platform. While I was initially sceptical about the effectiveness of cross-examination in this way, my scepticism proved to be unjustified. It transpired that I had no difficulty assessing credit or demeanour. In fact, my experience was that changes in facial expressions, reactions, bodily movements and gestures are much easier to discern when the witnesses are pinned to the screen directly in front of me than is normally the case when witnesses give evidence from the witness box some distance from the bench. In this respect my experience is not unique. Lee J made similar observations in Australian Securities and Investments Commission v GetSwift Limited [2020] FCA 504 at [33]. So did Perram J in Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486 at [19]. See also Tetley v Goldmate Group Pty Ltd [2020] FCA 913 at [16] (Bromwich J).