Implantables and privacy

'When is the processing of data from medical implants lawful? The legal grounds for processing health-related personal data from ICT implantable medical devices for treatment purposes under EU data protection law' by Sarita Lindstad and Kaspar Rosager Ludvigsen in (2022) Medical Law Review states 

Medicine is one of the biggest use cases for emerging information technologies. Data processing brings huge advantages but forces lawmakers and practitioners to balance between privacy, autonomy, accessibility, and functionality. ICT-connected Implantable Medical Devices plant themselves firmly between traditional medical equipment and software that processes health-related personal data, and these implants face many data management challenges. It is essential that healthcare providers and others can identify and understand the legal grounds they rely on to process data. The European Union is currently updating its framework, and the special provisions in the GDPR, the current ePrivacy Directive, and the coming ePrivacy Regulation all provide enhanced thresholds for processing data. This article provides an overview and explanation of the applicability of the rules and the legal grounds for processing data. We find that only a cumulative application of the GDPR and the ePrivacy rules ensure adequate protection of this data and present the legal grounds for processing in these cases. We discuss the challenges in obtaining and maintaining valid consent and necessity as a legal ground for processing and offer use case-specific discussions of the role of consent long-term and the lack of an adequate ‘vital interest’ exception in the ePrivacy rules.

The authors comment 

 Medicine is an emerging field for information communication technologies (ICT). Data processing brings significant advantages, and medical technologies develop at record speeds. ICT-connected Implantable Medical Devices (ICTIMD) plant themselves firmly between traditional medical equipment and software processing health-related personal data. ICTIMD are medical devices implanted in the human body with software capable of communicating and transferring data to external devices. They allow healthcare providers to monitor the patient’s condition without being physically present and help medical industries go from reactive to predictive and proactive models of care. 

However, the rapid technological development is a two-edged sword, forcing lawmakers and practitioners to balance between privacy, data protection, autonomy, and accessibility. ICTIMD rely on the processing of data on a massive scale, and while they face many of the same data management challenges as other fields, there are some major distinguishing factors. Health data is one of the most sensitive types of personal data, and the impact of a data breach can have enormous consequences. ICTIMDs are also, in contrast to most other devices, collecting data automatically and constantly from sensors implanted in human subjects. The end-user and data subject, the patient, does not have the freedom to leave the device at home. These devices form a particularly sensitive part of the private sphere of the users, demanding high data protection standards. 

The European Union (EU) is in the process of updating its privacy and data protection framework. Having replaced the Data Protection Directive (DPD) with the General Data Protection Regulation (GDPR), the complimenting ePrivacy directive (PECD) will eventually be replaced by an ePrivacy Regulation (EPR) and future additional legislation. These instruments together implement enhanced thresholds for processing health data from terminal equipment. For efficient data protection, it is vital that all the actors in the value chain, the healthcare providers, and the patients can identify and understand the lawful grounds available for processing. Our sections II and III start by clarifying the applicability of the rules and provide an overview of the legal grounds for processing from ICTIMD. Sections IV and V dive deeper into consent and necessity as legal grounds for processing ICTIMD data before section VI discusses the framework’s suitability for ICTIMD processing. 

The article will focus on processing enabling medical treatment and exclude processing for research purposes or other public interests. It will be limited to data protection law and will not cover law enforcement access, criminal law issues of illegal access, product liability law, or health law specifically

Regulating AI

'Regulating the Risks of AI' by Margot E Kaminski in (2023) 103 Boston University Law Review (Forthcoming) comments 

 Companies and governments now use Artificial Intelligence (AI) in a wide range of settings. But using AI leads to well-known risks—that is, not yet realized future harms that arguably present challenges for a traditional liability model. It is thus unsurprising that lawmakers in both the United States and the European Union (EU) have turned to the tools of risk regulation for governing AI systems. 

This Article observes that constructing AI harms as risks is a choice with consequences. Risk regulation comes with its own policy baggage: a set of tools and troubles that have emerged in other fields. Moreover, there are at least four models for risk regulation, each with both overlapping and divergent goals and methods. Emerging conflicts over AI risk regulation illustrate the tensions that emerge when regulators employ one model of risk regulation, while stakeholders call for another. 

This Article examines and compares a number of recently proposed and enacted AI risk regulation regimes, as risk regulation. It asks whether risk regulation is, in fact, the right approach. While this Article is intended largely to be diagnostic rather than prescriptive, it closes with suggestions for doing things differently, including addressing two types of shortcomings: shortcomings that stem from the nature of risk regulation itself (including the inherent difficulties of contested and non-quantifiable harms, and the dearth of mechanisms for public or stakeholder input), and failures to consider other tools in the risk regulation toolkit (including conditional licensing, liability, and design mandates).

GDPR and Genomics

'Your genetic data is my genetic data: Unveiling another enforcement issue of the GDPR' by Taner Kuru and Iñigo de Miguel Beriain in (2022) Computer Law and Security Review 105752 comments 

The General Data Protection Regulation aims to protect data subjects by granting them control over their data. The shared nature of genetic data causes significant challenges in this framework by posing the question of whether the donor's biological family members can also be considered data subjects or not. In this respect, we have examined both scenarios and concluded that biological family members could indeed be considered in the scope of the data protection framework. However, we highlighted certain shortcomings attached to this interpretation, especially when biological family members exercise their data subject rights. Hence, we explored potential conflicts that might arise when biological family members exercise their right to information, right to access, right to erasure and right to restriction of processing. As a practical solution to this pressing problem, we called on the European Data Protection Board to revisit the 2004 Working Document on Genetic Data in order to develop principles to be applied when solving such conflicts and thus provide certainty and clarity to genetic data processing. 

 The authors state 

Over the last two decades, we have witnessed a significant improvement in our technical ability to sequence genetic information at scale. Nowadays, researchers use this ever-growing available genetic information for various purposes, such as understanding what makes us prone to certain diseases and coming up with more precise treatment methods. In order to capitalize on this development, the European Union kickstarted the “1+ Million Genomes” initiative, amongst others, aiming at sequencing more than one million genomes by the end of 2022. In addition, several infrastructures are planned for storing, using, and sharing genomics data by several stakeholders in Europe to unlock the full potential of genomics. 

However, along with its promises, some contested uses of genetic data have also occurred in recent years. For instance, law enforcement officers used genetic information on genealogy websites to solve cold cases. Likewise, border agencies benefited from such resources to establish the nationalities of failed refugee claimants in an attempt to deport these individuals. Furthermore, direct-to-customer genetic testing kits revealed hidden family secrets.6 These are excellent examples of how processing genetic data can lead to infringements of the rights and freedoms of individuals. Moreover, the growing incorporation of new technologies such as artificial intelligence into this field might soon create infringements that cannot be foreseen with our current capabilities. Therefore, it is crucially important to effectively regulate the processing of genetic data. 

For this purpose, the General Data Protection Regulation (GDPR) constitutes an essential safeguard, at least at the EU level. Since its enactment in 2016, the GDPR has become a normative frame of reference for data protection, serving as an optimal tool to preserve natural persons’ fundamental rights and freedoms. Hence, the European legislator considers the GDPR an overall success that could meet several expectations. However, various actors have stated the opposite, especially underlining the difficulties in enforcing the GDPR. Besides these shortcomings, some problems also arose in the European data protection framework due to either the wording of the GDPR itself or the authoritative interpretations of its provisions. The unresolved issue regarding the definition of genetic data is one of the most obvious examples of this problem. 

Indeed, the fundamental structure of the GDPR, that is, the idea that data is linked to a concrete data subject, does not work so well with genetic data. This is due to a simple reason: contrary to many other types of personal data, genetic data is not exclusively linked to one data subject but to several people who share some part of their biological architecture with that data subject. In other words, since we share a significant percentage of our DNA with our genetic relatives, once our genetic data is processed, it does not only reveal information about ourselves but also about our biological family members. Unfortunately, this feature does not work well with the assumptions made by the GDPR. 

Under such a scenario, two main options can be considered. On the one hand, one can assign the data subject status only to the donor of the genetic data in question. Alternatively, one can consider biological family members of the donor as data subjects too, as already been suggested by some authors. Indeed, such an approach might be beneficial to mitigate the risks attached to genetic data processing, as any infringement on such data will also affect these individuals along with the donor. Nevertheless, it might be argued that accepting such ideas might create challenges that are impossible to tackle from the GDPR's perspective. 

However, this is not a clear-cut matter. As a matter of fact, one must consider that both alternatives would have different consequences in practice, and none of them is easy to deal with. This paper aims to find out the strengths and weaknesses of each of them, so as to clarify this complex issue. For this purpose, we will first analyse whether genetic data could be considered personal data of biological family members on a conceptual basis. Afterwards, we will explore the issues that this approach might bring. Finally, we will present some tentative ideas about the most promising ways to resolve the issues uncovered.

Money Washing

The NSW Crime Commission's Project Islington: Inquiry Into Money Laundering via Electronic Gaming Machines in Hotels and Clubs report states 

Across NSW, $95 billion was gambled (turned over) in electronic gaming machines (EGMs) in pubs and clubs in the year ending 30 June 2021. There are almost 100,000 EGMs licenced to be used in NSW, with 86,747 of these currently available in gaming rooms. From corner pubs in regional towns to large multi‐venue conglomerates of registered clubs, EGMs are broadly accessible. 

The Inquiry found that a significant amount of money which is put through poker machines is the proceeds of crime, or ‘dirty money’. The Inquiry assesses that billions of dollars gambled in NSW in the year to 30 June 2021 was dirty money. 

As the Inquiry’s lead agency, the NSW Crime Commission (NSWCC) used the special powers entrusted to it to conduct coercive hearings with criminals and their associates as part of extensive criminal investigations. In addition, the Inquiry analysed and matched large datasets across law enforcement, regulatory and intelligence holdings, interviewed industry stakeholders, staff in venues and other experts, considered submissions to the Inquiry and undertook an analysis of judicial decisions. 

Based on an assessment of this material, the Inquiry found that most dirty cash being used in EGMs is being gambled, rather than being used to extract “cleaned” money. Part 4AC of the Crimes Act 1900 (NSW) criminalises both types of conduct as money laundering, with both being serious indictable offences. 

EGMs constitute a money laundering risk because they primarily accept cash and because cash continues to be the primary method by which criminals obtain wealth from dealing in illicit commodities. 

The extent of money laundering via EGMs cannot be precisely quantified, but the Inquiry assesses it to be widespread and significant. Even utilising the combined holdings of law enforcement agencies and coercive functions, the Inquiry was not able to get a complete picture of criminal activity due to a lack of data. This hinders detection and investigation by law enforcement and minimises the ability of the NSW Police Force (NSWPF) and other law enforcement agencies to prosecute this type of criminal activity. 

The recommendations in this report are designed to make it significantly more difficult for criminals to place their ill‐gotten gains into EGMs. They will, if implemented, also make it easier for regulators and venues to detect, and law enforcement agencies to investigate and prosecute money laundering when this occurs. 

Mandatory cashless gaming will minimise money laundering associated with EGMs by removing anonymity and increasing traceability of EGM related transactions. This will enable law enforcement to identify and respond to money laundering and will improve data analytics around gambling and money laundering. The recent (not yet commenced) amendments to the Casino Control Act 1992 (NSW) provide a model which could be extended to pubs and clubs operating EGMs. 

Introducing a voluntary system (where gamblers can opt to use either cash or a player card) will not address money laundering as criminals dealing with the proceeds of crime will simply use cash. A hybrid/voluntary system will likely make pubs and clubs more attractive venues for money launderers as hybrid player card systems could be exploited to make ‘cleaning’ easier. 

The Inquiry found that law enforcement faced challenges when investigating money laundering via EGMs as the evidence can be difficult to verify. The introduction of a general proceeds of crime offence in the recent Crimes Amendment (Money Laundering) Act 2022 will assist in prosecutions of money laundering offences. 

The Inquiry considered multiple data sources, including the Central Monitoring System (CMS), which is a regulatory tool that all gaming machines in NSW registered clubs and pubs must be connected to. The information collected from each machine is used to calculate the Gaming Machine Tax and to monitor any faults and integrity issues. However, the CMS was not designed to collect information that could flag money laundering and the level of data captured cannot identify suspicious money laundering activity. In 2021, Liquor & Gaming NSW (L&GNSW) developed an algorithm which used CMS data to attempt to flag suspicious transactions. While this identified a number of suspicious gaming activities, it also flagged a significant number of false positives. There is no data source in NSW that identifies criminal activity associated with EGMs. Mandatory cashless gaming will, if implemented, resolve this, increase the capacity of venues to identify and report suspicious activity and enhance the ability of law enforcement to prosecute alleged offending.  

The Inquiry was not able to develop a comprehensive method to calculate the precise value of proceeds of crime used in EGMs in NSW. However, based on multiple sources of information, the Inquiry was able to assess that there are likely billions of dollars of proceeds of crime put through EGMs in NSW each year. 

Hearings and interviews carried out by the NSWCC, when combined with data analysis and a review of law enforcement holdings, highlight the prevalence of dealing with the proceeds of crime in EGMs, with dirty money being gambled across pubs and clubs in NSW. 

The NSWCC took evidence from a number of convicted criminals. They stated that cleaning money via an EGM would not be effective due to the time it takes, the amount of money that would be lost and the risk that it would be monitored and reported. This aligns with information available to the Inquiry based on current and historical criminal investigations. Instead of ‘cleaning’ money via EGMs, the Inquiry found evidence that EGMs were being used extensively for spending the proceeds of crime, including by people who became involved in criminal activity to fund their gambling. 

The prevalence of criminals dealing with the proceeds of crime via EGMs highlights the importance of venues having a strong understanding of their money laundering risks and obligations under the Anti‐Money Laundering and Counter‐Terrorism Financing Act 2006 (Cth) (AML/CTF Act) and creating a culture of compliance in venues. This can protect a venue from:

• misuse by criminals for money laundering purposes; 

• findings that they have breached their AML/CTF obligations; and 

• findings that they have been reckless to the fact that their customers, and by implication, the venues themselves, have been dealing with the proceeds of crime. 

The Inquiry assesses that the currently varied load‐up limits are a money laundering vulnerability because they allow for up to $10,000 in cash to go into an EGM at any one time. This makes money laundering easier, because higher value bank notes can be laundered in a short time period. The shorter time period means less opportunity for money laundering to be detected and reported by the venues. 

Not all the money laundering that the Inquiry has identified can be set out in the body of this report. Some criminal investigations remain active and ongoing. To maximise the ability of law enforcement and regulators to respond to the issues identified, the Inquiry through the NSWCC will be providing classified reports to relevant agencies.

The Commission's findings are 

F 1 – Some people involved in serious criminal offences, when found by NSWPF to be in possession of large amounts of cash, claimed that money in their possession was EGM winnings. The accuracy of these claims is difficult to refute due to limited evidence that law enforcement can rely on to confirm if an EGM win had occurred. 

F 2 – The Inquiry’s assessment, based on analysis of several large datasets, reviews of law enforcement holdings, information obtained from coercive hearings, and interviews with both industry stakeholders and people involved in organised criminal activity, is that a large amount of 'spending' type money laundering – dealing with proceeds of crime – is occurring across pubs and clubs in NSW. 

F 3 – Current detection systems successfully identify only some money laundering, more sophisticated money laundering cannot be detected. 

F 4 – It was not possible to precisely quantify the proceeds of crime being laundered via EGMs in NSW, however the Inquiry’s assessment of this figure is that billions of the $95 billion EGM turnover for the 2020‐21 financial year was likely the proceeds of crime. 

F 5 – Using EGMs to clean large quantities of dirty money is high risk and inefficient. Accordingly, while it is occurring, it is not widespread. 

F 6 – The October 2022 amendments to Part 4AC of the Crimes Act 1900, particularly the introduction of a ‘proceeds of general crime’ offence, will support more successful prosecutions of people dealing with proceeds of crime in licenced venues in NSW. 

F 7 – While only a small number of RCG holders have significant criminal histories including convictions for a prohibited drug, fraud and other high‐risk offences, there is no mechanism by which an RCG holder’s certification can be cancelled. 

F 8 – The tipping off offence under the AML/CTF Act is misunderstood by many venues as restricting their ability to exclude patrons or revoke their membership, leading to money launderers not being reported or not being excluded from venues. 

F 9 – Not all venues with a legal requirement to do so have an AML/CTF program and risk assessment tailored to their circumstances. 

F 10 – Many venue staff lack knowledge and training on AML/CTF issues.While industry stakeholders expressed a willingness to comply with AML/CTF obligations, the training these venues deliver to employees and board members does not always provide an adequate understanding and awareness of money laundering, or the associated AML/CTF obligations. 

F 11 – NSW has the highest load‐up limits associated with EGMs in Australia. This represents a money laundering vulnerability because larger amounts of dirty money can be loaded into an EGM. 

F 12 – Some EGM audit reports and player gambling histories lack the detail needed to identify suspicious behaviour.

The consequent recommendations are - 

 R 1 – Government introduce a mandatory cashless gaming system to minimise EGM related money laundering within pubs and clubs. 

R 2 –  Government, in consultation with industry and regulators, create a legislative or regulatory framework requiring certain standardised data be maintained for EGMs to better flag suspected money laundering. 

R 3 – Government engage with industry to: (a) identify ways that collection and analysis of EGM data could be enhanced for the purposes of money laundering identification at a venue level and to improve evidence available for prosecution; (b) explore technical and policy/process solutions to better utilise data collected by EGMs; and (c) identify ways of creating real‐time alerts for money laundering flags. 

R 4 – The legislative and regulatory frameworks governing EGMs in NSW be amended to clarify that persons/entities with functions associated with EGMs must take steps to prevent money laundering. 

R 5 – Government introduce a mechanism that enables government agencies or venues to recommend the cancellation/revocation of an RCG certification; and a mechanism for the regulator to revoke an RCG certification in appropriate circumstances. 

R 6 –  Government engage with industry and regulators to create a legislative or regulatory mechanism to support the exclusion of persons suspected of dealing with proceeds of crime from venues with EGMs, supplementing the existing rights of venues to exclude patrons from their premises. 

R 7 –  Government, in consultation with industry, update education requirements to include education on money laundering and increase the frequency of the training provided to venues from internal and external sources to support venues in discharging their obligations under the AML/CTF Act. Recommendation 8 – Page 56 Government work with industry to build the sector’s investment in AML/CTF training and education, and secure support for training from external sources.

Capture

'The corporate capture of the nutrition profession in the USA: the case of the Academy of Nutrition and Dietetics' by Angela Carriedo, Ilana Pinsky, , Eric Crosbie, Gary Ruskin and Melissa Mialon in (2022) Public Health Nutrition comments 

The AND [Academy of Nutrition and Dietetics], AND Foundation (ANDF) and its key leaders have ongoing interactions with corporations. These include AND’s leaders holding key positions in multinational food, pharmaceutical or agribusiness corporations, and AND accepting corporate financial contributions. We found the AND has invested funds in corporations such as Nestlé, PepsiCo and pharmaceutical companies, has discussed internal policies to fit industry needs and has had public positions favouring corporations.... 

 

The rising global burden of non-communicable diseases has for decades been addressed by downstream efforts that focus on improving individual behaviours. However, recently upstream efforts focused on societal and environmental changes have led to important population-level approaches and policies implemented in several countries to improve non-communicable diseases, including obesity and diabetes. An important barrier to these approaches is the commercial determinants of health. These are actions, processes and ways in which commercial actors such as unhealthy commodity corporations (tobacco, alcohol and ultra-processed food and drink) influence health policy making and, in general, influence the environment to protect their interests. 

 

There is extensive literature that shows how unhealthy commodity corporations are involved in setting health policy and research agendas globally. In particular, they use instrumental (action-based) and discursive (argument-based) strategies to influence science and policy surrounding public health efforts to protect well-being and healthy environments. Furthermore, corporations lobby and litigate against health policies and capture science by recruiting and hiring scientists to influence public discourse and position corporate interests in the public agenda. One key strategy is to capture health professionals and health institutions as a vehicle to achieve its interests more broadly in the global health agenda. 

 

In the USA, one of the most important professional health associations is the Academy of Nutrition and Dietetics (AND). The AND’s relationship with the food and beverage industry has been described elsewhere. Founded in 1917 as the American Dietetic Association, the AND is the largest US-based organisation comprised of food and nutritional professionals, with approximately 100 000 dietitians and nutrition practitioners and students. It is established as a 501(c)(6) trade association and certifies dieticians and nutrition practitioners in the USA and abroad. The AND’s stated mission is ‘to accelerate improvements in global health and well-being through food and nutrition’. AND acts as a reference for dietetics curricula accreditation and as an authority in US food policy making. For instance, the Academy has been influential in the process of setting US Dietary Guidelines, which are then taken into consideration all over the world in order to develop vital nutrition policy decisions. The AND also provides ‘expert testimony’ including ‘comments and position statements for federal and state regulations on critical food and nutrition issues’. The ‘philanthropic arm’ of the AND is the AND Foundation (ANDF), established as a 501(c)(3) charitable organisation. The ANDF does not receive member dues and relies on donations. It focuses on scholarships, awards, food and nutrition research and public education. The AND and the ANDF report jointly their annual activities and achievements, without a clear distinction between each another. They also share staff, including the chief executive officer and chief of operations. 

 

The AND has been repeatedly criticised for its close ties to food and beverage corporations, including Coca-Cola, PepsiCo and General Mills, which may undermine ‘the integrity of the professionals most responsible for educating Americans about healthy eating’. Two years after the publication of a critical report about AND’s relationship with food corporations in 2013, the ANDF announced a partnership with the food company Kraft. This collaboration, which was seen as an endorsement of some of Kraft’s products as ‘healthy’ options to include in children’s menus at schools, caused further outrage among AND’s members, public health experts and the general public. 

 

Although the AND’s relationship with the food and beverage industry has been described before, little is known about its relationship with other unhealthy commodity industries as well as the dynamics and evolution of such relationships. This study is the first to obtain and review AND’s internal communications and interactions between the AND and the food and beverage, pharmaceutical and agribusiness industries. We explore how these interactions evolved over time and how they influence the politics and decision-making of an influential professional health association, by analysing documents obtained through freedom of information (FOI) requests, filed by US Right to Know (USRTK).

Reasoning

'Judging the Employment Status of Workers: An Analysis of Commonsense Reasoning' by Carolyn Sutherland in [2022] 46(1) Melbourne University Law Review 281 comments

The ‘common sense’ of judges has typically played a crucial role in developing common law principles. ‘Common sense’ draws upon judges’ knowledge of everyday life in the community in which the courts operate to ensure that the common law reflects shared community values. This is illustrated in Australian judicial decisions that determine employment status by categorising a worker as either: an employee, who is entitled to a safety net of statutory protections; or an independent contractor, who is running a business on their own account and cannot access these protections. In these decisions, judges often rely on intuition to apply a multi-factorial test to a wide range of contexts. When determining that particular facts point towards a classification of one status or another, and by placing particular weight on one factor over another, judges draw heavily on values and assumptions that are drawn from their own experience as proxies for values and assumptions in the wider community. Assumptions drawn from judges’ own experience are typically presented as ‘common sense’ and signalled by reference to common knowledge, well-known phenomena and notorious understandings. However, rapid changes in business models, and the selection of judges from a narrow socio-economic pool, make it difficult for judges to maintain an up-to-date understanding of the everyday reality of workplaces. As a consequence, the ‘common sense’ of judges may fall out of step with the ‘common sense’ of the broader community. Where this results in judicial reliance on commonsense knowledge that is discriminatory and partial, the legitimacy of legal judgment may be called into question. 

Court decisions about the status of workers (as either employees or independent contractors) provide a useful context in which to explore the capacity of the common law to evolve to accommodate the realities of contemporary life. These cases tap into the contest of ideas over the economic and social effects of modern work arrangements. For example, the rise of the gig economy as a consequence of rapid advances in technology produces conflicting narratives about the capacity of the model to either exploit workers or to provide new and desirable options for flexible work. To resolve disputes about worker status, it is important that courts explicitly engage with these and other underpinning assumptions about the nature of work. Scholarly analysis of judicial decisions about the status of workers suggests that courts are not meeting this challenge. The decisions have been criticised for incoherence in both judicial reasoning and outcomes. Lizzie Barmes argues that problems of inconsistency and even illogicality reflect the difficulty that courts face in ‘fitting the law to the reality of working lives’. 

This article is concerned with commonsense assumptions for two reasons: first, because those assumptions may be hidden in judicial reasoning, reducing transparency; and second, because the content of those assumptions is often shaped by the feudal roots of the contract of employment and the (often narrow) sociocultural experiences of judges, reinforcing rather than combating the imbalance of power between capital and labour. As a consequence, commonsense reasoning may fall out of step with community expectations about justice in labour law. 

This article aims to identify and, where appropriate, challenge the assumptions that underpin judicial reasoning. It will pay particular attention to the language used by judges and highlight instances where this language perpetuates notions that appear obvious and inevitable, but are in fact outmoded, inaccurate or misaligned with the values of the wider community. When judges draw on commonsense reasoning (explicitly or implicitly), there is a risk that their assumptions will reinforce a conservatism that overlooks the lived experience of workers. Ultimately, the ideal is to subject commonsense assumptions to a process of critical reflection by judges, and to broaden the range of perspectives that are reflected in legal judgments to ensure the continued relevance of labour law to all participants in the labour market. 

This article is divided into five parts, commencing with this introduction (Part I). Part II examines the nature of commonsense reasoning by exploring the relationship between ‘common sense’ and the common law, and by considering the potential for commonsense reasoning to either undermine or enhance good judgment. Part III provides the context for the analysis of cases about the status of workers: first, by explaining the legal criteria for categorising workers as either employees or independent contractors; second, by justifying the analytical focus of the paper on judicial language and reasoning, rather than on doctrinal coherence and outcomes; and finally, by identifying the ways in which examples of commonsense reasoning can be identified. Part IV examines selected decisions of Australian courts that deal with the characterisation of workers as either employees or independent contractors. This analysis highlights three examples of assumptions that influence decisions in this context: first, that free enterprise and market-based solutions produce optimal outcomes for society as a whole; second, that a worker’s investment in capital indicates a desire to be an entrepreneur; and third, that the demands of modern business arrangements necessitate the exercise of high levels of control over independent contractors (without transforming their status into one of employment). The final section of this article (Part V) concludes by highlighting reflective practices of judging. These practices prompt judges to question whether their assumptions are drawn from historical and cultural contexts that may be outdated or exclusionary, and to consider whether matters that are taken to be ‘common sense’ are, in reality, commonly held and aligned with the views of the wider community. 

A ‘Common Sense’ and the Common Law 

One of the perceived strengths of the common law is its capacity to adapt to a changing social context. As articulated by McHugh J of the High Court:

The genius of the common law is that the first statement of a common law rule or principle is not its final statement. Rules and principles are modified and expanded by the pressure of changing social conditions and the experience of their practical application in the life of the community.

Renowned United States evidence scholar Ronald Allen goes further, arguing that the law is, and must be, ‘the embodiment of common sense’.  Given its interaction with ‘virtually all of life’, if the law ‘were not generated largely from and consistent with the conventional interactions of individuals, it would not survive’.  This expectation that the law will be generated and maintained to reflect evolving social conditions suggests that judges must actively monitor those conditions in order to meet the demands of justice in common law cases. In addition, there may be cases where conventional interactions within the community are exclusionary and outdated.  In such cases, one legitimate role of the judiciary might be to mete out justice that challenges the conventional, dominant view. 

The demands of justice may also require judges to consider whether the application of ‘common sense’ reinforces existing power structures or challenges those structures.  This will depend on whether judges are alert to the possibility that their knowledge will, at times, reflect their place within the dominant classes, and whether they are willing to proceed in a way that ‘imaginatively references’ the broader, everyday experiences of workers. The factual accounts of workers’ experiences are often presented to judges in considerable detail.  To maintain the connection between law and the community, it is important that workers’ accounts are reproduced in judgments in ways that reflect, rather than dismiss, those experiences. But this is unlikely to happen where the lived experience of workers, particularly those in a weak labour market position, are overlooked in judicial accounts — either because they do not readily align with judges’ experience of the world, or because they do not easily fit within the established legal tests. 

Those who support formal legalist approaches to judging may object that the role of judges is not to supplant the legislative function by changing the legal tests (to accommodate workers’ needs), but to implement the existing law.  According to American jurist, Richard Posner, such approaches are ‘premised on a belief that all legal issues can be resolved by logic, text, or precedent, without a judge’s personality, values, ideological leanings, background and culture, or real-world experience playing any role’. However, it is widely recognised that judicial decision-making in a common law system may legitimately involve creativity and choice. More than 80 years ago, Harlan Stone of the Supreme Court of the United States suggested that the task of the common law system was to provide ‘suitable protection and control of the varying interests which a dynamic society creates’. In performing this task, a judge has ‘liberty of choice of the rule which [they] appl[y]’ — a choice that will depend on ‘the relative weights of the social and economic advantages which will finally turn the scales of judgment in favour of one rule rather than another’. Here, we find acknowledgement of the vital role that the judiciary can play in balancing competing interests within society. It is well-established that, in categorising workers as employees or independent contractors, judges in common law countries are required to perform a substantial policymaking function because of the rapidly evolving contexts in which these decisions are made, and the lack of legislative guidance about this distinction.  In cases about worker status, judges are typically required to assess detailed facts and balance the interests of capital and labour.  In so doing, judges frequently rely on ‘common sense’ to connect legal reasoning to the values of the community. 

In the context of a landmark case about worker status in the High Court, Stevens v Brodribb Sawmilling Co Pty Ltd, Mason J articulated the view that the common law is ‘sufficiently flexible to adapt to changing social conditions’. This view has more recently been endorsed in a different context by Kirby J of the High Court, who confirmed that the ‘common law does not exist in a vacuum. It is expressed by judges to respond to their perceptions of the requirement of justice, fairness and reasonableness in their society’. However, the principles developed by the common law to address these requirements are necessarily vague to allow adaptation to the particular facts of the case, requiring judges to draw heavily on intuitive assumptions to apply those principles. These assumptions are derived from a number of sources, including the experiences of each judge in their private life,  and common law values that are drawn from counsels’ submissions and from judicial immersion in precedent. Reliance on judicial experience can be problematic because judges are often drawn from a demographically narrow group that is not representative of the broader community. As an illustration of the limits of judicial experience, Barmes highlights Baroness Hale’s declaration in Edwards v Chesterfield Royal Hospital NHS Foundation Trust that her Ladyship was ‘the only member of this court to have spent a substantial proportion of her working life as an employee rather than as a self-employed barrister or tenured office holder’. Common law values in employment cases tend to reflect the historical influence of master and servant legislation on the contract of employment, giving precedence to the owner of capital to manage labour in a way that suits their own objectives.  Both sources of judicial assumptions (personal experience and the values that are embedded in common law precedents) tend to constrain the rapid evolution of the common law and its capacity to support the progressive aims of labour law legislation, particularly the need to address structural inequality between capital and labour. 

B Commonsense Reasoning and Its Consequences 

Commonsense reasoning has the potential to either undermine or enhance good judgment. Writing about judicial decision-making in poverty law cases in Canada, Patricia Cochran warns against the tendency for commonsense reasoning to ‘harbour stereotypes, reproduce unjust power relations, and silence marginalized people’. In employment law cases, judicial reliance on stereotypes can limit expectations about what an employee or an independent contractor in a modern workplace might look like. Judges sometimes rely on stereotypes based on their own limited knowledge to make findings about matters which are capable of verification via social science evidence. This creates problems of accuracy where judicial findings may be contradicted by the latest empirical studies.  Judges may also cling to the status quo because of a lack of understanding of potential alternatives. When stereotypical thinking is presented in judicial reasoning as an aspect of ‘common sense’, the implication is that this knowledge is ‘self-evident’, leading to reasoning and outcomes that may baffle workers who experience working life differently. 

For example, in cases about worker status, judges may defer to the choices made by workers to become self-employed and may emphasise the opportunities available for the worker to make a profit. It may seem self-evident to judges that the parties should be held to their choices, particularly given the importance of freedom of contract as a common law principle. In contrast, a reflective approach would require an investigation into the worker’s economic dependence on a single business for work and a recognition of the significant limitations that govern their choices as a practical reality. 

There is also a danger that the use of commonsense reasoning may prioritise the views of those whose socio-economic status is similar to that of most judges, and overlook the perspectives of workers from a lower socio-economic class. In her in-depth qualitative analysis of a United Kingdom (‘UK’) decision dealing with worker status, Barmes illustrates the ‘muting, distracting effect’ of the legal process in which an employer’s harsh treatment of Polish migrant workers was dispassionately recounted by judges whose reasoning was narrowly focused on the legal distinction between employees and independent contractors rather than the significance of the workers’ stories. 

Margaret Davies has highlighted that the UK Feminist Judgments Project was similarly concerned with the need to introduce into judicial reasoning a ‘thick description’ of human relationships,  and to recognise the influence of various forms of social power on these relationships.  Both Barmes and Davies acknowledge that judges are constrained by the requirements of the relevant legal framework and the litigation process, but Davies nevertheless envisions the potential for judges to push against these constraints by consciously incorporating marginalised perspectives into their decisions.  Despite the potential pitfalls of commonsense reasoning, this article does not argue for its elimination in judicial decisions. There are many circumstances in which judicial reliance on ‘common sense’ is both necessary and beneficial. Efficiency in the litigation process is perhaps the most obvious benefit that flows from the adoption of commonsense reasoning.  The doctrine of judicial notice recognises this benefit by allowing judges to draw upon common knowledge that is indisputable and capable of verification without formally proving that knowledge. 

It is also worth recognising that judicial reliance on commonsense assumptions is, to some extent, unavoidable.  Rather than rejecting those assumptions, the intuitive aspect of commonsense reasoning can be harnessed to enhance judgment. For example, ‘common sense’ makes an important contribu- tion to decision-making when it is used by a judge as a check against absurd reasoning or outcomes. In cases about the status of workers, this typically occurs where the application of the legal tests points towards a particular characterisation of the status of the worker, but the judge applies an additional lens (sometimes described as a ‘smell test’)  to challenge that characterisation. 

It is nevertheless important to ensure that intuitive reasoning is checked by careful deliberation and to guard against the incorporation of out-of-date or ‘elite’ assumptions that may form part of an intuitive judicial response. American cultural anthropologist, Clifford Geertz, points out that ‘common sense remains more an assumed phenomenon than an analyzed one’.  Drawing on an anthropological perspective, Geertz suggests that

[i]f we look at the views of people who draw conclusions different from our own by the mere living of their lives ... we will rather quickly become aware that common sense is both a more problematical and a more profound affair than it seems ... 

This article will identify examples of commonsense assumptions that should be challenged because of their capacity to reinforce unequal power structures between hirers and workers and thereby undermine the purposes of labour law. It will also identify examples where ‘common sense’ is turned into ‘good sense’ through a process of reflection that broadens the field of enquiry to include an examination of how the social context and power dynamics have contributed to the matrix of facts that are presented to the judge.

Galactic Emissary

In Ms Julia Elana Miroch v Powercor Australia Ltd [2022] FWC 1880 the Fair Work Commission has dealt with a claim featuring a 'Galactic Emissary' with authority from the 'Moot Court of Terra Australis Incognito'. 

The Commission states 

[3] The Applicant was represented by Trevor Alexander at the hearing, although he preferred to describe himself as “‘Trevor John’, of the family Alexander”, and similarly the Applicant described herself as “‘Julia Elana’ of the family Miroch”. (I note briefly that these designations appeared to have some significance to the Applicant’s contention that the Respondent had committed unlawful “personage”, as well as the lawfulness of contracts between natural persons and other entities who are not natural persons, such as the Respondent.) While Mr Alexander described himself as ‘Attorney in Fact’ for the Applicant and some correspondence indicated he represented “The Moot Court of Terra Australis Incognito”, he confirmed, and I am satisfied, he was not a paid lawyer or agent for whom permission needed to be obtained to represent the Applicant. … 

[7] The second matter was a request for me to recuse myself on the grounds of bias or apprehended bias. Various grounds were advanced. One ground was that my associate, in correspondence with the parties, described the Applicant’s representative as ‘Mr Alexander’. By doing so, it was put that my associate (and, through him, me) engaged in “personage”. The claim of “personage” was not entirely clear to me, even following the hearing. While it has no coherent legal basis that I am aware of, as best as I can understand the claim, it contends that as the Applicant’s representative is a natural person (as distinct from, for example, a body corporate) and by addressing him as “Mr”, that implicitly denies his status as a “living person”. I note that the first question the Applicant’s representative asked in cross-examination was whether the Respondent’s witness was a “living person”. As far as I referred to the Applicant as Ms Miroch or her representative as MrAlexander, I consider there was (and is) nothing improper about it and, to the contrary, that reflects a common and courteous manner to address or refer to people. This is particularly the case in more a formal forum, such as a court or tribunal hearing, or where over-familiarity might otherwise be conveyed through use of a person’s given name. I would make the same observation about the complaints made by the Applicant and her representative in relation to the Respondent’s communications. That is not to say that a person’s request as to how they might be addressed ought not be reasonably accommodated as a matter of courtesy, but the complaints of “personage” are not maintained. • … • 

[31] On 18 October 2021, the Applicant swore a document titled “Statement of Declaration of Truth “Affidavit”” (the quotations around the word “Affidavit” being in the original document). It was 30 pages in length and signed before a Justice of the Peace. The document described the Applicant’s “Purpose (occupation)” as “Galactic emissary” and current address as “Planet known as Earth”. The document was apparently served on the Victorian Government as well as the Australian Government, neither of whom challenged it. The Applicant’s oral evidence in chief says she took the lack of any response or challenge to mean that what she had stated in that document “had become truth”. Suffice to say, that was not the legal or factual consequence but it would appear that the document at least supplies an explanation for the Applicant’s views regarding “fictitious” (i.e. non-individual) entities, which was to “rebut any and all alleged claimed authority and/or jurisdiction of any and all fictitious, corporate or private entities, over the deponent, those entities being without standing on the land”. … 

[55] On 23 February 2022, the Applicant’s representative sent the Applicant’s team leader an email regarding the following day’s meeting. It was addressed to the “living woman known as” the Applicant’s team leader. He described himself as “’Trevor John’, of the family/house/tribe/clan Alexander” and as the Applicant’s “Attorney in Fact concerning this matter”. In it, he requested – although it was more in the nature of a direction – that all communications with the Applicant be through him. 

[56] The email purported to contain what was described as a “Notice of Legal Liability” which alleged as follows: “Notice of Legal Liability: Any deviation from this directive will be taken as your willful attempts to intimidate and harass Julia, and, as such, you agree that any such action in contradiction to this directive, by you, [the Applicant’s team leader], or any agent of "Powercor" at this meeting, or from the moment of this correspondence forwards, shall incur a remedy to Julia of $50,000 per incursion, per living man or woman who commits these serious assaults, payable to Julia within 28 days of service of invoice, in accordance with the terms contained within that invoice.” 

[57] The content of the purported notice needs only be stated to observe that it is legally nonsensical. The notice has no such legal effect and has no legal basis. Nonetheless, it would appear that the Applicant (or at least, her representative for whom she appeared content to allow him to speak on her behalf) believed it to be real and, while it not necessary for me to make conclusions about that belief, it perhaps explains the subsequent tenor of subsequent communications (which I set out below). … 

[63] Also on 25 February 2022, the Applicant’s representative sent to “The living man known as “Daniel Bye”” an invoice that purportedly required payment of $50,000 for an alleged breach of the notice sent on 23 February 2022. The invoice was expressed to be “certified”, perhaps to imply some additional legal status, as follows:

Certified True Copy 

Milky Way Galaxy 

Solar System 

Planet known as Earth 

Land Mass known as: Terra Australis Incognito 

Earth date known as 25/2/2022 

Registrar: [which was initialled ‘TJA’]

[64] The invoice made other claims, including for “workplace violence”. The payment was to be made in “Sterling Silver” of “99.9999% Troy weight” although it would appear that “cash” would be acceptable. It required payment within 10 days or to otherwise dispute the invoice “with a sworn affidavit of rebuttal”, lest there be “Tacit Acquiescence” of its terms. The invoice itself appears to have been signed by the Applicant.  … 

[66] The invoices are legally nonsensical. Suffice to say, neither document had any of their purported legal effect, despite the recourse to the various pseudo-legal words, phrases and jargon contained within them. I do not wish to be too critical, however. From the Applicant’s perspective, she was being placed in a position where the operation of Victorian government public health orders directly clashed with her (sincere) beliefs and concerns regarding the vaccinations those mandates were promoting. That said, I do not consider that the “invoices” and similar such documents assisted and, so far as they might have given her a false sense of hope, they were unhelpful. 

[67] It would appear, however, that the Applicant and her representative were just beginning with the “legal” demands and notices of such a kind. … 

[71] On 26 February 2022, the Applicant sent a separate document, titled “Proposal for the Resolution of Dispute” and “Notice of Agent is Notice to Principal”. It was expressed to be signed by the Applicant and was four pages in length. Among other matters, “in considering an appropriate settlement amount, ‘Julia Elana’, of the family Miroch” asked for $7.25 million. … 

[79] On 9 March 2022, the Applicant’s representative sent the Applicant’s team leader an email titled “Meeting”. The email stated that the Applicant “is still on sick leave due to the workplace violence committed against her” and asserted that the team leader had “breached” the “Notice of Legal Liability” (i.e. the “invoice” I described above) and committed a “further act” of workplace violence. He stated he would be attending the meeting for the Applicant and requested a meeting link. The email itself contained in the evidence does not expressly identify the Applicant’s representative by name as the “From” email field instead refers to it being sent by “Galactic Emissary”. It was also signed “The Moot Court of Terra Australis Incognito”. It does not appear in controversy, and I find, that the email was sent by the Applicant’s representative. I also conclude he did so at the request of the Applicant, as her representative was not copied into the meeting invitation sent on 7 March 2022 …. 

[81] Shortly after the telephone call, the Applicant’s representative sent Mr Bye an email containing two documents that, it appears, purported to provide proof of his “attorney” status. One document was expressed to be a “general non-enduring power of attorney” made under the “law of the land of, Terra Australis” and “also” under the Power of Attorney Act 2014 (Vic). Neither basis was effective. The other document was slightly shorter and referred to the Applicant appointing her representative on 23 February 2022 as her “attorney in fact”. It was dated 10 March 2022 and appears to have been signed by her … 

[95] For completeness, I note that the Applicant, through her representative, sent a further invoice dated 6 April 2022 (for $7,250,000), a “Notice of Acceptance by Tacit Acquiescence” dated 8 April 2022 (again for $7,250,000) and a “Reminder Invoice Notice” on 8 April 2022 (for $50,000) and again on 10 May 2022 (for $7,250,000).

Research

The July 2022 UK Independent Review of Research Bureaucracy Final Report comments 

Unnecessary bureaucracy diverts and hampers research, and the work of individual researchers and research teams. Ultimately, it diminishes the returns from research funding. This is why the Prime Minister’s package of science announcements on 27 January 2020 included: 

 

...launching a major review of research bureaucracy and methods, including unnecessary paperwork, arduous funding applications and research selection processes. This will free up and support the best researchers to focus on ground-breaking, ambitious and meaningful research... 

 

Following this, Professor Adam Tickell, now Vice-Chancellor of Birmingham University, was asked to lead this Review which launched in March 2021. 

 

Seven Principles 

 

The Review developed the following seven principles for cutting unnecessary bureaucracy:

• Harmonisation 

• Simplification 

• Proportionality 

• Flexibility 

• Transparency 

• Fairness 

• Sustainability

Reducing the volume of administration through the use of common processes between different funders to make essential work easier. Reducing the complexity of individual processes to address unnecessary bureaucracy. Ensuring that the obligations placed on researchers and institutions are commensurate with the size of the risk or reward. Supporting and embracing excellence wherever it is found and not excluding research that does not fit within narrowly defined parameters. Communicating the rationale for systems and processes which have a bureaucratic burden. Developing approaches to systems and processes that support fairness, rather than erode it. Cutting bureaucracy in ways that avoid destabilising the system to deliver a more efficient system over the long term. These principles are embedded in the Review recommendations and should inform the government response and future action across the sector. 

 

Key Findings and Recommendations 

 

The Review has focussed on aspects of the research system where there was consistent feedback on the need and scope for change. Perhaps inevitably, this has emphasised research funders’ systems, processes and assurance. There are areas where cutting bureaucracy will involve recognising trade-offs and there will need to be careful consideration of how best to manage these. However, it is clear that universities and other research organisations, and individual researchers and their groups, must also play their part in driving efficiencies and delivering on the potential outlined in this Review. The Review has identified the following six themes where there is scope for significant positive change: Assurance This comprises the information provided to funders and regulators to demonstrate that research is carried out in accordance with funding terms and conditions. The principle of ‘ask once’ should be paramount throughout the assurance system. 

 

Findings 

 

The Review has identified the following key issues with regard to assurance bureaucracy: 

 

• Overall, there are too many requirements relating to assurance bureaucracy and they are often complex and duplicative; • Uncertainty in the sector about how to manage assurance issues contributes to risk aversion and over-compliance in institutions' internal assurance processes; • A lack of trust, coordination, partnership working and knowledge exchange on assurance throughout the research sector; • An incremental growth of bureaucracy – changing priorities have meant that, over time, new assurance requirements have been introduced. However, few attempts have been made to remove or reduce redundant assurance requirements. 

 

Recommendations 

 

To address these issues we recommend that: 

 

• Government departments that fund research should work together to ensure there is greater alignment of assurance approaches, removing duplication. UKRI should take forward action to achieve greater alignment and coordination across UKRI Councils; • Government should facilitate closer working with other funders, including charity funders, to increase coordination and reduce assurance burdens on the sector; • Funders and research organisations should develop collective approaches and resources to support institutions in managing their assurance processes; and • Funding bodies should explore the function and benefits of self-certification and/or earned autonomy for institutions with a robust track record of assurance. 

 

Applying for Funding 

 

Funding applications were one of the most cited causes of unnecessary bureaucracy by organisations and individuals in the Review’s call for evidence. 

 

Findings 

 

• The Review heard concerns from researchers and research managers about the length and complexity of application processes; • The overall success rates for research grant applications are low - often around 20%. Given this, single stage processes which require applicants to provide all the information at the outset mean that for a majority of applicants this information is unused and ultimately wasteful; • Two stage application processes may deliver improvements across the system but may present funders with resourcing challenges or take more time and UKRI and others are piloting these approaches now. The Review received a range of views on how best to manage the prospect that more streamlined application processes could lead to higher numbers of applications; • There is already evidence of funders tackling these issues in a variety of ways, but there is scope to go much further. 

 

Recommendations 

 

To address these issues we recommend that: 

 

• Funders should experiment with application processes to reduce burdens for applicants, (including two-stage application processes) where the information required increases in line with the likelihood of being funded; • Funders should work together to increase standardisation across their application processes in terms of the use of language and the questions they ask where appropriate. UKRI should facilitate this across Research Councils in the first instance; • Funders should review what adaptations will be needed to assessment processes to take account of changes to application models. This should include the information necessary for national security assessments alongside innovative approaches from the use of peer reviewer triage to limit the number of applications requiring full peer review to experimenting with new models such as randomly allocated funding; • Funders should ensure that application processes support their commitments to equality, diversity and inclusion; • Funders should remove the requirement for letters of support from applications in most circumstances. 

 

Grant Implementation and In-Grant Management 

 

Given the inherently unpredictable nature of research, there are a number of areas where more flexibilities may be beneficial, once a research project is underway: F 

 

Findings 

 

 • The period between issue of award letter and start of a research project can be too short, leaving little time for procurement, recruitment and financial administration; • Conversely, the time taken to get agreement from research funding organisations to changes to a project or to the profile of funding can be too long; • It is often unclear to funding recipients what the purpose is of information requested in project monitoring; • Contracting and collaboration agreements are a major source of delays because many research organisations prefer to use their own version rather than standard formats such as Brunswick or Lambert Agreements. 

 

Recommendations 

 

To address these issues we recommend that: 

 

• Funders and recipients should ensure there is adequate time for the completion of all necessary tasks (including providing assurance information) between the issue of the award letter and the start of the project; • Universities and research organisations should wherever possible use standard templates for contracts and collaboration agreements, recognising that this would not just be faster, but would also facilitate third-party collaborations; • Wherever possible, funders should build in flexibilities including no cost extensions within manageable parameters to reduce delays in addressing project changes and the number of queries funders receive; • Ethical and other regulatory approvals should be the responsibility of the lead partner on a multi-institution research project and counterparties (including in the NHS) should not require additional duplicative approvals. 

 

Digital Platforms 

 

Every aspect of research bureaucracy depends on digital platforms and the extent of the sector’s reliance on them can heighten the impact of any flaws in their design or function. 

 

Findings 

 

• There is a challenge in creating digital platforms that are capable of supporting institutional diversity and keeping pace with change in UK research without being overly complex; \• There is scope for greater harmonisation of digital platforms. However, this will also be limited to a degree by the differing nature and objectives of individual funders; • Greater inter-operability and data sharing between systems could significantly reduce bureaucracy; • There is currently a window of opportunity to deliver vastly improved services across key funders as UKRI, NIHR and Wellcome amongst others move away from older platforms; • Funders are continuing to drive forward programmes to reduce bureaucracy in their systems and processes. Through the Simpler and Better Funding programme, UKRI is piloting a new digital platform – UKRI Funding Service - which from 2024 will deliver end to end functionality for all Research Council grant applications. 

 

Recommendations 

 

To address these issues we recommend that: 

 

• For the higher education sector, Jisc should lead on the creation of sector-wide groups responsible for overseeing the development and further integration of the research information ecosystem, including research management data; • Funders, universities and regulators should ensure interoperability and improved data flows are considered as integral to the design and implementation of any new digital systems; • For existing systems, approaches to improving the flow of data between different platforms should be explored using, for example, application programming interfaces, point to point integration and machine learning. 

 

Institutional Bureaucracy 

 

There are strong links between bureaucracy related to requirements of funders, regulators and government and each research institution’s own systems, processes and approaches. Research organisations, particularly universities, need to address their own unnecessary bureaucracy to support the Review’s aim of freeing up researchers to focus on research. 

 

Findings 

 

• Institutional bureaucracy was the most cited source of unnecessary bureaucracy by individuals in the Review’s call for evidence; • There is a culture of risk aversion within universities. Whilst much of this is understandable, it has a negative impact on the processes for decision making; • Risk aversion has, in some cases, led to unnecessary approval hierarchies which can cause major delays and operational difficulties; • Use of generalist professional services department to provide key elements of research support – for example, legal services – can lead to longer delays because of a lack of familiarity or confidence with handling research grant agreements or contracts 

 

Recommendations 

 

To address these issues we recommend that: 

 

• Wherever possible, research organisations should examine the feasibility of delegating research-related approvals to research managers and officers who are closer to research; • Universities UK should bring universities together to find new platforms and methods for working together on research management issues such as increasing risk appetite, streamlining burdens including through greater standardisation; • If they do not already have them, research organisations should establish “Trusted Funder” policies to enable projects to proceed at risk, within certain parameters. 

 

Communications 

 

There are a number of communications issues in relation to unnecessary bureaucracy. Funders can address antipathy towards necessary bureaucracy by communicating more clearly why it is required and what they do with the information. A lack of clarity can lead to “gold plating” by institutions who are trying to manage regulatory and other requirements. 

 

Findings 

 

• Frustration with necessary bureaucratic requirements may be related to how widely the rationale and role of particular R&D funding systems and processes are communicated and understood; • There is also scope to increase awareness of existing tools and methods that can reduce bureaucratic burdens, e.g. persistent digital identifiers; • Uncertainty about the introduction and approach to implementing new requirements could be addressed through proactive communication and engagement by funders and regulators; • In addition, the review heard that government and funders could go further to engage with the sector on the specifics around implementation of new requirements to identify the most efficient approach; • There were a series of specific concerns with regard to the approach to communications with the sector including use of jargon and inconsistent language, working to ensure communications are received by the right audiences (for example, not just Vice- Chancellors or Pro Vice-Chancellors of Research) and timeliness in relation to submission deadlines. 

 

Recommendations 

 

To address these issues we recommend that: 

 

• Government, funders and regulators should undertake wide ranging consultation with research organisations prior to the introduction of new regulatory or other requirements; • Government and funders should proactively communicate on new and emerging regulatory issues. The Research Collaboration and Advice Team (RCAT)i model providing support on national security matters is good practice in this regard; • Funders should ensure important messages about research are sent to research office contacts as well as Vice Chancellor/Pro-Vice Chancellor Research.