AdTech and BodyCams

'Adtech and Children’s Data Rights' by Lisa Archbold, Damian Clifford, Moira Paterson, Megan Richardson and Normann Witzleb in (2021) 44(3) UNSW Law Journal comments 

 The advertising technology industry, known as ‘adtech’, is a complicated network of organisations and individuals that collect, aggregate and deal with large amounts of personal data. As children engage with digital networks for many aspects of their lives, they are increasingly exposed to adtech practices. Depending on their age, children may have less knowledge of the commercial digital environment and less maturity in their decision-making processes than adults have. Their limited resilience in the face of adtech’s onslaught offers a particularly stark illustration of why it is problematic to look to ‘consent’ as the exclusive or predominant mechanism to control the use of consumer data in the digital ecosystem. This article examines the problems arising from adtech’s data practices and makes recommendations on how to strengthen the agency and control exercised by children and protect their best interests in the context of adtech.

'‘Every Move You Make … Every Word You Say’: Regulating Police Body Worn Cameras' by Robyn Blewer and Ron Behlau in the same journal comments 

The death of Minneapolis man, George Floyd, at the hands (or, knee) of a police officer in May 2020 appears to have set a nation, indeed the world, alight with outrage at ongoing, systemic racism and brutality by police officers. Body worn camera (‘BWC’) footage from officers attending this incident provides strong evidence of the circumstances of Mr Floyd’s death. In this article, we draw on criminological research and analyses of legislation in Australia and a number of international jurisdictions, to argue there is a need for improved regulation of BWCs. Despite incurring the substantial cost of deploying this technology, governments are relinquishing control of it to law enforcement agencies who, in turn, draft policies that maximise police discretion and protection while minimising the consequences of non-compliance. For governments to realise their objectives for BWCs, we argue there is a need for greater regulation to ensure BWCs are utilised effectively.

Ultimata

From Dawson; Secretary, Department of Social Services and (Social services second review) [2021] AATA 3442 

... As I indicated to Mr Parker during the interlocutory hearing, it is totally unacceptable, and contrary to the Secretary’s statutory role as an accountable public office holder, and as a model litigant, that the Secretary is proposing to ignore, by refusing to implement, a decision of this Tribunal that is averse to the Secretary. 

46. I remind the Secretary that the Commonwealth’s obligations to act as a model litigant, which includes an obligation to act “honestly and fairly” extends to merits review proceedings (see Appendix B, item 2 and 3 of the Legal Services Directions 2017 (Cth) (Directions)). 

47. The Commonwealth’s model litigant obligations also provide that “[a] Commonwealth agency should use its best endeavours to assist the tribunal to make its decision” (Appendix B, item 4, of the Directions). There is a similar duty expressed in s 33(1AA) of the AAT Act which requires the decision-maker to “use his or her best endeavours to assist the Tribunal” to make its decision in relation to the proceedings. 

48. It does not assist me, and it is not open to the Secretary, to make submissions that the Secretary will ignore a decision of this Tribunal that he does not agree with and to refuse to implement it. Such a course is at best, contrary to the administration of justice and unethical, and at worst, unlawful. 

49. If I refuse this extension of time, the Secretary is legally bound to implement the AAT1 Decision, regardless of whether the Secretary agrees with it. Additionally, I observe that Mr Parker, as a senior lawyer for the Secretary with a duty to this Tribunal and to the administration of justice, had an ethical obligation to advise the Secretary that such a submission should not be made for the reasons that I have explained. 

50. I find that the poor conduct by the Secretary weighs strongly against the Tribunal granting an extension of time. 

51. Thus overall, I find that the “alternative avenues of relief” factor weighs against the Tribunal granting the extension of time.

Conclusion 

52. I turn to my concluding comments. In summary, the Tribunal is not satisfied that it is reasonable in all the circumstances to extend the time to allow the Applicant to seek review of the AAT1 Decision. 

53. Although the length of the delay was three days, and despite there not being any other apparent avenues of relief available to the Secretary, and the Secretary having an arguable case should the matter proceed to a substantive hearing, more considerations weigh against, and to a greater degree, against the exercise of discretion to grant the extension of time. These include: 

(a) the Secretary’s unsatisfactory explanation for the delay; 

(b) that the Secretary was well aware of his appeal rights and the 28-day period in which to lodge an application for review; 

(c) the prejudice to Mr Dawson and other members of the general public of the Secretary failing to pay entitlements to persons in need of them in a timely manner, taking into account the beneficial nature of the legislation; and 

(d) the poor conduct of the Secretary in giving me, the Tribunal, what was effectively an ultimatum that if I were to hand down a decision averse to the Secretary, that the Secretary would ignore it. I remind the Secretary that he is not above the law. If the Secretary thought that the AAT1 Decision was legally incorrect, the appropriate course of action would have been to appeal the decision within time.