Rights

The national Human Rights Commission has released a Human Rights Act Position Paper that: 

• identifies the gaps in Australia’s current framework and makes the case for a federal Human Rights Act (Chapters 2 and 3) 

• outlines the Commission’s proposed model for a Human Rights Act (Chapters 4 to 12) 

• considers existing parliamentary scrutiny mechanisms and improvements that can be made with the introduction of a Human Rights Act (in Chapter 13) 

• focuses on the role of Commission and the enhanced contributions the Commission can make to promoting and protecting human rights in the light of a federal Human Rights Act (Chapter 14) 

The Paper states

Why Australia needs a Human Rights Act 

• Australia does not adequately protect human rights at the present time xx Australia has a patchwork legal framework of human rights protection. The rights that are protected are located in scattered pieces of legislation, the Constitution and the common law. It is incomplete and piecemeal. xx The Australian Constitution offers only limited protection for a small number of discrete human rights. This includes the implied right to freedom of political communication; and a prohibition on making federal laws that establish a religion, impose a religious observance or prohibit the free exercise of any religion. The High Court has rejected suggestions that other basic rights, like the right to equality, are implied by the text of the Constitution. xx The common law recognises a number of rights and freedoms. The common law protects human rights indirectly through statutory interpretation principles such as the ‘principle of legality’, which presumes that Parliament ‘does not intend to interfere with common law rights and freedoms except by clear and unequivocal language’. However, common law protections are fragile, as Parliament can pass a law that overrides them at any time. xx While Parliamentary scrutiny measures enable some consideration of human rights during the law-making process, these measures alone have not resulted in an embedded human rights culture within Parliament. Parliament routinely passes laws that are not human rights compliant. While discrimination laws implement key aspects of the international treaties Australia has ratified, they are only a partial implementation of them, with many key international rights finding no corresponding federal protections. xx Human Rights Acts have been passed in Victoria, the Australian Capital Territory and, most recently, Queensland. The lack of an overarching federal instrument means that a person’s access to rights protections is wholly contingent on where they live. xx The Commission’s ability to resolve human rights complaints can be very limited. Unlike complaints alleging unlawful discrimination, if the Commission cannot conciliate a human rights complaint, the person cannot then bring court proceedings, nor obtain any enforceable remedies. UN Treaty bodies have repeatedly concluded that core treaties have not been adequately incorporated into Australia’s legal system. Many of Australia’s commitments to human rights are confined to rhetoric without corresponding domestic protections. xx The need for a Human Rights Act can be summed up in one simple statement: people’s human rights matter all of the time. Government that is here to serve the people, should consider their impact on people whenever they make decisions. 

• The current rights framework in Australia is not easily explainable, or readily comprehensible, to all people in Australia. xx The above patchwork of rights is difficult to explain to everyday Australians, whose rights are meant to be protected. Not only should the law afford appropriate protection to the people of Australia, but it should be capable of being understood by all. 

• A Human Rights Act for Australia is an evolution not a revolution Human Rights Acts have been passed in three states and territories in Australia and been in operation since 2004. Throughout this paper there are references to case studies of how a Human Rights Act has made a positive difference to the protection of human rights in these jurisdictions, as well as in the multiple countries that have introduced such legislation over the past 20 years. xx The proposed model for a federal Human Rights Act builds on the success and lessons from these existing models, while also tailoring a Human Rights Act to the specific constitutional requirements of Australia. xx The proposed model for a Human Rights Act set out in this paper also seeks to build on the lessons from the Australian Human Rights Commission having administered a human rights and ILO 111 complaints handling stream under the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) since 1986. There are deficiencies to how these complaint processes operate, which limit their effectiveness. In the Commission’s model for a Human Rights Act, these existing human rights complaint streams would be replaced with a much clearer set of rights in the Human Rights Act. By learning from the lessons of other models, and building on the legacy of the AHRC Act processes that have been in domestic law for 36 years, the Commission’s proposal for a Human Rights Act is an evolution not a revolution.xx

The Commission proposes, in summary, 

Federal policy-makers and decision-makers 

Government, administrators and public service providers would be required to consider human rights and to act in accordance with human rights when making policy or decisions that affect individual lives. They would have to consult with the people who would be directly or disproportionately affected by policies or laws, especially First Nations people, children, and people with disability. 

Federal law-makers 

Parliament would be required to place greater priority on the human rights impacts of all new proposed laws. 

Federal courts 

Courts would be required to interpret legislation, where possible, in a way that is consistent with human rights. However, courts would not have the power to strike down laws for not being compatible with human rights. 

Limitations on human rights 

Limitations could be placed on some human rights in certain circumstances. For example, it might be necessary to balance the right to freedom of expression with the right to privacy, or the right to access information with national security interests. 

When deciding whether to pass a new law that limits human rights, Parliament would have to consider whether the proposed limitation is proportionate. For example, any limitation on individual rights would need to be reasonable and necessary to achieve an important public interest and be put in place for the shortest time possible. 

Complaints 

Individuals who consider that their human rights have been breached would have the option of making a complaint to the Australian Human Rights Commission. A complaint could proceed to conciliation, a facilitated process for the parties to seek a resolution on their own terms. 

Access to the court for a remedy 

If a complaint about human rights cannot be resolved through conciliation, then the individual would have the option of taking the complaint to the relevant federal court. The court could provide remedies such as preventing government from taking an action that would breach human rights, or ordering government to pay compensation.

Thinking?

'Talking About Large Language Models' by Murray Shanahan offers a useful caution amid much of the academic over-excitement regarding ChatGPT. 

Shanahan states 

 Thanks to rapid progress in artificial intelligence, we have entered an era when technology and philosophy intersect in interesting ways. Sitting squarely at the centre of this intersection are large language models (LLMs). The more adept LLMs become at mimicking human language, the more vulnerable we become to anthropomorphism, to seeing the systems in which they are embedded as more human-like than they really are. This trend is amplified by the natural tendency to use philosophically loaded terms, such as “knows”, “believes”, and “thinks”, when describing these systems. To mitigate this trend, this paper advocates the practice of repeatedly stepping back to remind ourselves of how LLMs, and the systems of which they form a part, actually work. The hope is that increased scientific precision will encourage more philosophical nuance in the discourse around artificial intelligence, both within the field and in the public sphere. ... 

The advent of large language models (LLMs) such as Bert (Devlin et al., 2018) and GPT-2 (Radford et al., 2019) was a game-changer for artificial intelligence. Based on transformer architectures (Vaswani et al., 2017), comprising hundreds of billions of parameters, and trained on hundreds of terabytes of textual data, their contemporary successors such as GPT-3 (Brown et al., 2020), Gopher (Rae et al., 2021), and PaLM (Chowdhery et al., 2022) have given new meaning to the phrase “unreasonable effectiveness of data” (Halevy et al., 2009). 

The effectiveness of these models is “unreasonable” (or, with the benefit of hindsight, somewhat surprising) in three inter-related ways. 

First, the performance of LLMs on benchmarks scales with the size of the training set (and, to a lesser degree with model size). Second, there are qualitative leaps in capability as the models scale. Third, a great many tasks that demand intelligence in humans can be reduced to next token prediction with a sufficiently performant model. It is the last of these three surprises that is the focus of the present paper. 

As we build systems whose capabilities more and more resemble those of humans, despite the fact that those systems work in ways that are fundamentally different from the way humans work, it becomes increasingly tempting to anthropomorphise them. Humans have evolved to co-exist over many millions of years, and human culture has evolved over thousands of years to facilitate this co-existence, which ensures a degree of mutual understanding. But it is a serious mistake to unreflectingly apply to AI systems the same intuitions that we deploy in our dealings with each other, especially when those systems are so profoundly different from humans in their underlying operation. 

The AI systems we are building today have considerable utility and enormous commercial potential, which imposes on us a great responsibility. To ensure that we can make informed decisions about the trustworthiness and safety of the AI systems we deploy, it is advisable to keep to the fore the way those systems actually work, and thereby to avoid imputing to them capacities they lack, while making the best use of the remarkable capabilities they genuinely possess.

Trade

'Cross-border data flows and privacy in global trade law: has trade trumped data protection?' by Mira Burri in (2023) 39(1) Oxford Review of Economic Policy 85–97 comments 

This article is set against the complex backdrop of the evolution of the data-driven economy and its regulation, and seeks to provide a better contextualization of the topic of data protection as a matter of trade law. It looks at the recent proliferation of rules on data flows, specifically addressed in free trade agreements (FTAs), at how data protection has been framed in these treaties, as well as at the available reconciliation mechanisms developed to interface trade and privacy. The article explores the most advanced models that have been developed in this regard so far, with a focus on some US-led and EU-led treaties. These analyses build the basis for testing the conjecture as to whether trade law has gone too fast and too deep, encroaching on domestic privacy law developments that unfold at a much slower pace.

Burri states 

Legal adaptation in the face of technological advances, including in the area of trade law, is not necessarily a new topic. This is true also for digital technologies as, on the one hand, the World Trade Organization (WTO) membership realized fairly early on with the 1998 Work Programme on Electronic Commerce that all areas of trade are deeply affected by the Internet and changes in the existing rules for trade in goods, trade in services, as well as those for the protection of intellectual property (IP) rights, may be needed. On the other hand, this acknowledgment has been accompanied by a host of studies that explored where such changes are most urgent and what they might look like, as well as considering their political feasibility. Yet, it is fair to note that this dual mobilization of policy and scholarship was based on a wave of technological changes that were still, so to speak, at level 2.0, where the Internet was seen as a mere platform enabling the online sale of services and goods, often framed under ‘e-commerce’, but failed to recognize the disruptive potential of the Internet as a general purpose technology (GPT) with far-reaching spillover effects. With the changing conditions of trade and the emergence of global value chains (GVCs), intensified convergence, and servicification, these effects did become palpable and were considered by a series of later studies. Yet, the centrality of data remained largely ignored, as their embeddedness in the economy and their profound societal effects were at an early stage. It is only recently, with the advent of the so-called ‘Fourth Industrial Revolution’, that the impact of data across all sectors of the economy and the disruptive character of digitization were fully acknowledged. And it is only in very recent times, with the shaping of Big Data and artificial intelligence (AI) as distinct new phenomena, that both policy and academic circles, not exclusively in the area of trade, recognized the need for a change in legal design that goes beyond plain adjustments. 

These later stages exposed also in a new way the link between digital trade, or data-enabled/driven trade, and privacy protection, and their regulation became intensely contested. Previously privacy and trade law were rarely connected and nor has their interface been addressed in the legal frameworks. While there has been a robust scholarly and policy debate on the impact of the ‘hard’ rules of international economic law on non-economic interests, privacy has seldom been one of the major concerns. The new field of contestation was defined by the increased value of data and the affordances of Big Data and Big Data analytics. In this context, there is now broad agreement that data are so essential to economic processes that they are commonly said to be the ‘new oil’. Many studies have revealed the vast potential of data, and the dependence of new and emerging technologies, like AI, on data. 

Yet, this increased dependence on data brought about a new set of concerns. The impact of data collection, use, and re-use upon privacy was particularly recognized by scholars and policy-makers. These challenges triggered a new preoccupation for law-makers and led to reform of data protection laws around the world, best exemplified by the EU General Data Protection Regulation (GDPR). The reform initiatives are, however, not coherent and are culturally and socially embedded, reflecting societies’ understandings of constitutional values, relationships between citizens and the state, and the role of the market, as illustrated later on by a reference to the US and EU’s approaches to data protection. 

The tensions around data have also revived older questions about sovereignty and international cooperation in cyberspace. Data’s intangibility and pervasiveness pose particular difficulties for determining where data are located, as bits of data, even those associated with a single transaction or online activity, can be located anywhere. With the increased value of data and the associated risks and because of the contentious jurisdictional issues, governments have proactively sought new ways to assert control over them—in particular by prescribing diverse measures that ‘localize’ the data, their storage or suppliers, so as to keep them within the state’s sovereign space. Erecting barriers to data flows has, however, serious implications for trade and brings about a tension between data protectionism and data sovereignty and the inherent to trade agreements striving to liberalize trade, foster growth, and innovation. 

Overall, with the amplified role of data in societies, the interfaces between trade and privacy protection have become multiple and intensified. They raise important questions as to adequate regulatory design that can reconcile economic and non-economic concerns, national and international interests. This article is set against this complex backdrop and seeks to provide a better understanding and contextualization of the topic of data protection as a matter of trade law. It looks at the recent proliferation of rules on data flows, specifically addressed in free trade agreements (FTAs), at how data protection has been framed in these treaties as well as at the available reconciliation (or escape) mechanisms developed to interface trade and privacy. The article explores the most advanced models that have been developed in this regard so far, with a focus on some US-led and EU-led treaties. These analyses build the basis for testing the conjecture as to whether trade law has gone too fast and too deep encroaching on domestic privacy law developments that unfold at a much slower pace.

Electrification

'The rise and stall of world electricity efficiency: 1900–2017, results and insights for the renewables transition' by Ricardo Pinto, Sofia T Henriques, Paul E Brockway, Matthew Kuperus Heun and Tânia Sousa in (2023) 269 Energy comments 

In the coming renewables-based energy transition, global electricity consumption is expected to double by 2050, entailing widespread end-use electrification, with significant impacts on energy efficiency. We develop a long-run, worldwide societal exergy analysis focused on electricity. Our 1900–2017 electricity world database contains the energy carriers used in electricity production, final end-uses, and efficiencies. We find world primary-to-final exergy (i.e. conversion) efficiency increased rapidly from 1900 (6%) to 1980 (39%), slowing to 43% in 2017 as power station generation technology matured. Next, despite technological evolution, final-to-useful end-use efficiency was surprisingly constant (∼48%), due to “efficiency dilution”, wherein individual end-use efficiency gains are offset by increasing uptake of less efficient end uses. Future electricity efficiency therefore depends on the shares of high efficiency (e.g. electrified transport) and low efficiency (e.g. cooling and low temperature heating) end uses. Our results reveal past conversion efficiency increases (carbon intensity of electricity production reduced from 5.23 kgCO2/kWh in 1900 to 0.49 kgCO2/kWh in 2017) did little to decrease global electricity-based CO2 emissions, which rose 380-fold. The historical slow-pace of transition in generation mix and the need to electrify end-uses suggest that strong incentives are needed to meet climate goals.