Ethics

'The Kant-inspired indirect argument for non-sentient robot rights' by Tobias Flattery in (2023) AI and Ethics comments 

Some argue that robots could never be sentient, and thus could never have intrinsic moral status. Others disagree, believing that robots indeed will be sentient and thus will have moral status. However, a third group thinks that, even if robots could never have moral status, we still have a strong moral reason to treat some robots as if they do. Drawing on a Kantian argument for indirect animal rights, a number of technology ethicists contend that our treatment of anthropomorphic or even animal-like robots could condition our treatment of humans: treat these robots well, as we would treat humans, or else risk eroding good moral behavior toward humans. But then, this argument also seems to justify giving rights to robots, even if robots lack intrinsic moral status. In recent years, however, this indirect argument in support of robot rights has drawn a number of objections. In this paper, I have three goals. First, I will formulate and explicate the Kant-inspired indirect argument meant to support robot rights, making clearer than before its empirical commitments and philosophical presuppositions. Second, I will defend the argument against a number of objections. The result is the fullest explication and defense to date of this well known and influential but often criticized argument. Third, however, I myself will raise a new concern about the argument’s use as a justification for robot rights. This concern is answerable to some extent, but it cannot be dismissed fully. It shows that, surprisingly, the argument’s advocates have reason to resist, at least somewhat, producing the sorts of robots that, on their view, ought to receive rights.

Flattery argues 

Given the growing interest and steady progress in social robotics, it is becoming more and more likely that robots looking and acting like humans or other animals will become widespread in society. Robots are already, for instance, increasingly used for childhood social development [27, 61], elder care [64], sexual companionship (Nyholm 2020: ch. 5), and even as pets. In 2017, Saudi Arabia went so far as to grant citizenship to Sophia, a humanoid robot developed by Hanson Robotics, making Sophia the first robot to be granted citizenship by a sovereign nation (Hatmaker [37]). If Saudi Arabia takes Sophia’s citizenship seriously, presumably Sophia also has the same set of rights enjoyed by human Saudi citizens. But are there moral reasons to give rights to Sophia? Given our track records as humans—which already includes many instances of human abuse toward robots [9]—it seems obvious that, if these sorts of robots indeed become widespread in society, so also will human violence and other forms of harsh treatment toward these robots. But even so, robots are machines, not humans. Are there compelling moral reasons to give robots rights? 

In much of the philosophical literature, the question whether we ever ought to give rights to robots hinges on the further question whether robots will ever have moral status in virtue of having the same sorts of mental lives that humans have, or at least mental lives of a similar sort. In other words, if it is possible for robots literally to hope or fear, suffer or enjoy, understand or intend—or at least to have these capacities in the not too distant future—then it makes sense to consider seriously whether they ought to be given rights. Many would accept this conditional claim, but for those who would deny the antecedent, the conditional will not drive an argument for robot rights. However, a number of technology ethicists have argued, to one extent or another, that even if robots have no mental lives at all, we nevertheless ought to treat some robots with some of the same respect due our fellow humans. Drawing on one of Immanuel Kant’s arguments for indirect duties to animals, these authors argue or at least suggest that we have a moral reason to treat anthropomorphic or social robots well—to treat them in some ways as if they have moral status—since how we treat these robots is likely to condition how we treat humans. But then, we also seem to have a good reason for instituting laws or norms that would require us to treat robots well—that is to say, that would grant rights to robots. However, this indirect argument used to support robot rights has attracted a number of objections that have thus far not been answered adequately. 

Given how influential this Kant-inspired indirect argument has been, both inside and outside the scholarly literature, it is important that we properly evaluate this argument, so that we can better assess its merits. And given the inevitably increasing growth of robots in human society, fully assessing leading arguments related to robot rights is critical. With these ends in mind, I have three main aims in this paper. First, I will formulate the Kant-inspired indirect argument often advanced in support of robot rights, making clearer than before this argument’s empirical commitments as well as the philosophical presuppositions driving it. The result is the fullest explication of this argument to date. Second, I will defend the argument against a number of objections leveled at it in recent years, resulting in the most sustained defense of this argument in the literature thus far. Third, despite arguing that most objections against the argument can be answered, I also raise a new concern about the argument’s use as a justification for robot rights. While this objection is also answerable to some extent, it cannot be dismissed fully. It shows that, surprisingly, a proper understanding of the argument along with its prior commitments and presuppositions reveals that its advocates ought to support a prima facie moral principle for robot design, according to which we ought to try to minimize producing the sorts of robots to which we would, on their view, have reason to give rights. 

In the following section, I will discuss some preliminaries, frame a debate about robot rights, situate the argument on which I will focus, and lay out some important philosophical presuppositions of those who would advance the argument. In §3, I formulate Kant’s argument for indirect duties toward animals, which serves as the inspiration for the analogous argument concerning robots. In §4, I defend the latter argument against a range of recent objections. However, consideration of these objections also serves to make the argument’s specific empirical commitments clearer than they have been previously. In §5, I address two concerns about using the argument as a justification for robot rights, the second of which shows that proponents of the argument are committed to a prima facie moral principle for robot design.

Nature

'Re-imagining Participation in the Anthropocene: The Potential of the Rights of Nature Paradigm' by Paola Villavicencio-Calzadilla and Louis Kotzé in Birgit Peters and Eva Julia Lohse (eds) Sustainability through Participation? Perspectives from National, European and International Law (Brill, 2023) 51-72 comments 

In this chapter we argue that our existing suite of anthropocentric law and governance arrangements that are aimed at environmental protection, are not sufficiently geared towards protecting the non-human world. We show how these laws actively exclude vulnerable non-humans in the governance processes that directly affect their health and well-being. Non-human interests must be more fully present and represented in our anthropocentric socio-regulatory institutions, and we argue that this could be accomplished through the rights of nature paradigm. We firstly reflect on the new socio-ecological reality of the Anthropocene, its deepening socio-ecological crisis, and its multiple patterns of differentially distributed vulnerability. We then interrogate why a rights of nature approach could be a viable option to extend participation opportunities to the non-human world. The next part analyses several examples from Latin American countries where rights of nature provisions are being used to facilitate participation of the non-human world. Our discussion shows that participation is mostly facilitated through guardianship and representation measures, which hold out considerable promise, despite limitations and pitfalls.

'Laboratories of the Future: Tribes and Rights of Nature' by Jensen Lillquist and Elisabeth Kronk Warner in (2023) 111 California Law Review 325 comments

Rights of nature are increasingly moving into the legal mainstream, both in the United States and abroad.  Rights of nature laws, which seek to make injuries to natural entities legally cognizable and justiciable in court, generally consist of at least one of two elements: (1) legal personhood for nature or specific natural entities and (2) substantive rights for nature or specific natural entities. 

This Article explores the scope and origins of rights of nature and examines how they are being implemented both within the United States and abroad. It highlights the work being done by Tribes and Indigenous Peoples in this space and argues that, particularly in the United States, state and local governments should learn from this work. Specifically, the work of Tribes in this space can serve as alternative ethical paradigms and laws for non-Native communities looking for an alternative to the status quo. In the United States, Tribes can serve as "laboratories" for environmental change given their tribal sovereignty and environmental ethics. In addition, Tribes exis within a different legal framework from U.S. states and municipalities. By comparing rights of nature-related litigation in Florida and in the White Earth Nation of Ojibwe, it becomes clear that rights of nature provisions adopted by Tribes stand a greater chance of withstanding legal challenge than provisions adopted by municipalities. 

Accordingly, environmental reform can benefit from the collaboration and experimentation of Tribes. To date, six countries have implemented the rights of nature on a national level, and several states and cities outside the United States have passed rights of nature. Within the United States, various Tribes and municipalities have passed rights of nature laws; no state has done so. Considering that before the early 2000s, no rights of nature law had been passed, these laws represent a fairly significant legal and cultural shift, at least within their respective jurisdictions. Environmental law scholars are clamoring to examine the impacts of these developments and how advocates might successfully utilize such arguments in state and federal court. While existing environmental laws and related environmental ethics and values within the United States tend toward anthropocentrism in prioritizing the protection of humans alone, rights of nature laws and ideals center on the natural world. For many who view rights of nature as valuable to the effective protection of the environment and as a necessary switch toward an environmental ethic that will better protect the Earth from the negative impacts of exploitation, it may seem as if the arc of the moral universe is finally bending toward justice.

Ultimately, non-Native communities considering or looking for ethical paradigms alternative to anthropocentrism should consider the work being done by Tribes in this space. Tribal environmental ethics may depart from anthropocentrism, and Tribes are already implementing laws based on such alternative ethical paradigms. Yet, scholars and advocates often fail to look to Indigenous Peoples and Tribes for guidance in this area;" Indigenous Peoples and Tribes have been incorporating the rights of nature principles into tribal and customary law for a long time. This Article helps to fill the void by demonstrating not only that the theoretical conception of rights of nature may benefit from Indigenous Peoples, but also that Tribes can offer legal protections where other actors cannot. To date, at least five Tribes within the United States have passed rights of nature resolutions. These Tribes, as much as any state or municipality, represent laboratories in which the concept of rights of nature can be tested for strengths and weaknesses. This testing may in fact produce the United States' first enforceable rights of nature provisions.

RoboDebt RC Recommendations

The report of the RoboDebt Royal Commission - noted in the preceding post - features the following recommendations. 

 The report features the following recommendations 

Effects of Robodebt on individuals 

Recommendation 10.1: Design policies and processes with emphasis on the people they are meant to serve 

Services Australia design its policies and processes with a primary emphasis on the recipients it is meant to serve. That should entail: • avoiding language and conduct which reinforces feelings of stigma and shame associated with the receipt of government support when it is needed • facilitating easy and efficient engagement with options of online, in person and telephone communication which is sensitive to the particular circumstances of the customer cohort, including itinerant lifestyles, lack of access to technology, lack of digital literacy and the particular difficulties rural and remote living • explaining processes in clear terms and plain language in communication to customers, and acting with sensitivity to financial and other forms of stress experienced by the customer cohort and taking all practicable steps to avoid the possibility that interactions with the government might exacerbate those stresses or introduce new ones. The concept of vulnerability 

Recommendation 11.1: Clear documentation of exclusion criteria 

Services Australia should ensure that for any cohort of recipients that is intended to be excluded from a compliance process or activity, there is clear documentation of the exclusion criteria, and, unless there is a technical reason it cannot be, the mechanism by which that is to occur should be reflected in the relevant technical specification documents. 

Recommendation 11.2: Identification of circumstances affecting the capacity to engage with compliance activity 

Services Australia should ensure that its processes and policies in relation to the identification of potential vulnerabilities extend to the identification of circumstances affecting a recipient’s capacity to engage with any form of compliance activity. To this end, circumstances likely to affect a recipient’s capacity to engage with compliance activities should be recorded on their file regardless of whether they are in receipt of a payment that gives rise to mutual obligations. 

Recommendation 11.3: Engagement prior to removing a vulnerability indicator from a file 

Services Australia should ensure that its processes and policies in relation to the identification of potential vulnerabilities require staff to engage with a recipient prior to the removal of an indicator on their file. For this purpose, Services Australia should remove any feature that would allow for the automatic expiry of a vulnerability indicator (or equivalent flagging tool). An indicator should only be removed where a recipient, or evidence provided to the Agency in relation to the recipient, confirms that they are no longer suffering from the vulnerability to which the indicator relates. 

Recommendation 11.4: Consideration of vulnerabilities affected by each compliance program, including consultation with advocacy bodies 

Services Australia should incorporate a process in the design of compliance programs to consider and document the categories of vulnerable recipients who may be affected by the program, and how those recipients will be dealt with. Services Australia should consult stakeholders (including peak advocacy bodies) as part of this process to ensure that adequate provision is made to accommodate vulnerable recipients who may encounter particular difficulties engaging with the program. 

The roles of advocacy groups and legal services 

Recommendation 12.1: Easier engagement with Centrelink Options for easier engagement with Centrelink by advocacy groups – for example, through the creation of a national advocates line – should be considered. 

Recommendation 12.2: Customer experience reference group The government should consider establishing a customer experience reference group, which would provide streamlined insight to government regarding the experiences of people accessing income support. 

Recommendation 12.3: Consultation Peak advocacy bodies should be consulted prior to the implementation of projects involving the modification of the social security system. 

Recommendation 12.4: Regard for funding for legal aid commissions and community legal centres 

When it next conducts a review of the National Legal Assistance Partnership, the Commonwealth should have regard, in considering funding for legal aid commissions and community legal centres, to the importance of the public interest role played by those services as exemplified in their work during the Scheme. 

Experiences of Human Services employees 

Recommendation 13.1: Consultation process 

Services Australia should put in place processes for genuine and receptive consultation with frontline staff when new programs are being designed and implemented. 

Recommendation 13.2: Feedback processes 

Better feedback processes should be put in place so that frontline staff can communicate their feedback in an open and consultative environment. Management should have constructive processes in place to review and respond to staff feedback. 

Recommendation 13.3: “Face-to-face” support 

More “face-to-face” customer service support options should be available for vulnerable recipients needing support. 

Recommendation 13.4: Increased number of social workers 

Increased social worker support (for both recipients and staff), and better referral processes to enable this support, should be implemented. 

Failures in the Budget process 

Recommendation 15.1: Legislative change better defined in New Policy Proposals 

The Budget Process Operational Rules should include a requirement that all New Policy Proposals contain a statement as to whether the proposal requires legislative change in order to be lawfully implemented, as distinct from legislative change to authorise expenditure. 

Recommendation 15.2: Include legal advices with New Policy Proposals 

The Budget Process Operational Rules should include a requirement that any legal advice (either internal or external) relating to whether the proposal requires legislative change in order to be implemented be included with the New Policy Proposal in any versions of the Portfolio Budget Submission circulated to other agencies or Cabinet ministers. 

Recommendation 15.3: Australian Government Solicitor statement in the NPP 

The Budget Process Operational Rules should include a requirement that where legal advice has been given in relation to whether the proposal requires legislative change in order to be implemented, the New Policy Proposal includes a statement as to whether the Australian Government Solicitor has reviewed and agreed with the advice. 

Recommendation 15.4: Standard, specific language on legal risks in the NPP 

The standard language used in the NPP Checklist should be sufficiently specific to make it obvious on the face of the document what advice is being provided, in respect of what legal risks and by whom it is being provided. 

Recommendation 15.5: Documented assumptions for compliance Budget measures 

That in developing compliance Budget measures, Services Australia and DSS document the basis for the assumptions and inputs used, including the sources of the data relied on. 

Recommendation 15.6: Documentation on the basis for assumptions provided to Finance 

That in seeking agreement from Finance for costings of compliance Budget measures, Services Australia and DSS provide Finance with documentation setting out the basis for the assumptions and inputs used, including related data sources, to allow Finance to properly investigate and test those assumptions and inputs. Data-matching and exchanges 

Recommendation 16.1: Legal advice on end-to-end data exchanges 

The Commonwealth should seek legal advice on the end-to-end data exchange processes which are currently operating between Services Australia and the ATO to ensure they are lawful. 

Recommendation 16.2: Review and strengthen governance of data-matching programs 

The ATO and DHS should take immediate steps to review and strengthen their operational governance practices as applied to jointly conducted data-matching programs. This should include: • reviews to ensure that all steps and operations relating to existing or proposed data-matching programs are properly documented • a review of all existing framework documents for existing or proposed data-matching programs • a review of the operations of the ATO/DHS Consultative Forum and the ATO/DHS Data Management Forum • a review of the existing Head Agreement/s, Memoranda of Understanding and Services Schedule • a joint review of any existing or proposed data-matching program protocols to ensure they are legally compliant in respect of their provision for the data exchanges contemplated for the relevant data-matching program. Automated decision making 

Recommendation 17.1: Reform of legislation and implementation of regulation 

The Commonwealth should consider legislative reform to introduce a consistent legal framework in which automation in government services can operate. Where automated decision-making is implemented: • there should be a clear path for those affected by decisions to seek review • departmental websites should contain information advising that automated decision-making is used and explaining in plain language how the process works • business rules and algorithms should be made available, to enable independent expert scrutiny. 

Recommendation 17.2: Establishment of a body to monitor and audit automated decision-making 

The Commonwealth should consider establishing a body, or expanding an existing body, with the power to monitor and audit automate decision-making processes with regard to their technical aspects and their impact in respect of fairness, the avoiding of bias, and client usability. 

Debt recovery and debt collectors 

Recommendation 18.1: Comprehensive debt recovery policy for Services Australia 

Services Australia should develop a comprehensive debt recovery management policy which among other things should incorporate the Guideline for Collectors and Creditors’ issued by the Australian Competition and Consumer Commission (ACCC) and the Australian Securities and Investments Commission (ASIC). Examples of such documents already exist at both federal and state levels. Any such policy should also prescribe how Services Australia undertakes to engage with debtors, including that staff must: • ensure any debt recovery action is always ethical, proportionate, consistent and transparent • treat all recipients fairly and with dignity, taking each person’s circumstances into account before commencing recovery action • subject to any express legal authority to do so, refrain from commencing or continuing recovery action while a debt is being reviewed or disputed, and • in accordance with legal authority, consider and respond appropriately and proportionately to cases of hardship. Services Australia should ensure that recipients are given ample and appropriate opportunities to challenge, review and seek guidance on any proposed debts before they are referred for debt recovery. 

Recommendation 18.2: Reinstate the limitation of six years on debt recovery 

The Commonwealth should repeal s 1234B of the Social Security Act and reinstate the effective limitation period of six years for the bringing of proceedings to recover debts under Part 5.2 of the Act formerly contained in s 1232 and s 1236 of that Act, before repeal of the relevant sub-sections by the Budget Savings (Omnibus) Act (No 55) 2016 (Cth). There is no reason that current and former social security recipients should be on any different footing from other debtors. 

Lawyers and legal services 

Recommendation 19.1: Selection of chief counsel 

The selection panel for the appointment of chief counsel of Services Australia or DSS (chief counsel being the head of the entity’s legal practice) should include as a member of the panel, the Australian Government Solicitor. 

Recommendation 19.2: Training for lawyers – Services Australia 

Services Australia should provide regular training to its in-house lawyers on the core duties and responsibilities set out in the Legal Practice Standards, including: • an emphasis on the duty to avoid any compromise to their integrity and professional independence and the challenges that may be presented to a government lawyer in fulfilling that obligation. • appropriate statutory and case authority references in advice writing. 

Recommendation 19.3: Legal practice standards – Social Services 

DSS should develop Legal Practice Standards which set out the core duties and responsibilities of all legal officers working at DSS. 

Recommendation 19.4: Training for lawyers – Social Services 

DSS should provide regular training on the core duties and responsibilities to be set out in the Legal Practice Standards which should include: an emphasis on the duty to avoid any compromise to their integrity and professional independence and the challenges that may be presented to a government lawyer in fulfilling that obligation appropriate statutory and case authority references in advice writing 

Recommendation 19.5: Draft advice – Social Services 

DSS should issue a further direction providing that, if the administering agency decides that a draft advice need not be provided in final form, that decision and the reasons for it must be documented. One of those steps – finalisation, or a documented decision against finalisation – should have been taken within three months of the receipt of the draft advice. 

Recommendation 19.6: Draft advice – Services Australia 

Services Australia should issue a direction that legal advice is to be left in draft form only to the extent that the administrative step of finalising it has not yet been undertaken by lawyers or there are remaining questions to be answered in relation to the issues under consideration and that, if the administering agency decides that a draft advice need not be provided in final form, that decision and the reasons for it must be documented. One of those steps – finalisation, or a documented decision against finalisation – should have been taken within three months of the receipt of the draft advice. 

Recommendation 19.7: The Directions 1 

The Legal Services Directions 2017 should be reviewed and simplified. 

Recommendation 19.8: Office of Legal Services Coordination to assist agencies with significant issues reporting 

The OLSC should provide more extensive information and feedback to assist agencies with the significant legal issues process. 

Recommendation 19.9: Recording of reporting obligations 

The OLSC should ensure a documentary record is made of substantive inquiries made with and responses given by agencies concerning their obligations to report significant issues pursuant to para 3.1 of the Directions. 

Recommendation 19.10: The Directions 2 

The OLSC should issue guidance material on the obligations to consult on and disclose advice in clause 10 of the Legal Services Directions 2017. 

Recommendation 19.11: Resourcing the Office of Legal Services Coordination 

The OLSC should be properly resourced to deliver these functions. 

Recommendation 19.12: Chief counsel 

The Australian Government Legal Service’s General Counsel Charter be amended to place a positive obligation on chief counsel to ensure that the Legal Services Directions 2017 (Cth) are complied with and to document interactions with OLSC about inquiries made, and responses given, concerning reporting obligations under those Directions. 

Recommendation 19.13: Review of the Bilateral Management Agreement 

The revised Bilateral Management Agreement should set out the requirement to consult on and disclose legal advices between the two agencies where any intersection of work is identified. 

Administrative Appeals Tribunal 

Recommendation 20.1: AAT cases with significant legal and policy issues 

Services Australia should put in place a system for identifying AAT1 cases which raise significant legal and policy issues and ensuring that they are brought to the attention of senior DSS and Services Australia officers. 

Recommendation 20.2: Training for DHS legal officers 

Services Australia legal officers whose duties involve the preparation of advices in relation to AAT1 decisions should receive training which emphasises the requirements of the Standing Operational Statements in relation to appeal recommendations and referral to DSS; Services Australia’s obligations as a model litigant; and the obligation to pay due regard to AAT decisions and directions. 

Recommendation 20.3: Identifying significant AAT decisions 

DSS should establish, or if it is established, maintain, a system for identifying all significant AAT decisions and bringing them to the attention of its secretary. 

Recommendation 20.4: Publication of first instance AAT decisions 

The federal administrative review body which replaces the AAT should devise a system for publication on a readily accessible platform of first instance social security decisions which involve significant conclusions of law or have implications for social security policy. 

Recommendation 20.5: Administrative Review Council 

Re-instate the Administrative Review Council or a body with similar membership and similar functions, with consideration given to a particular role in review of Commonwealth administrative decision-making processes. 

The Commonwealth Ombudsman 

Recommendation 21.1: Statutory duty to assist 

A statutory duty be imposed on departmental secretaries and agency chief executive officers to ensure that their department or agency use its best endeavours to assist the Ombudsman in any investigation concerning it, with a corresponding statutory duty on the part of Commonwealth public servants within a department or agency being investigated to use their best endeavours to assist the Ombudsman in the investigation. 

Recommendation 21.2: Another power to obtain information 

The Ombudsman Act be amended to confer on the Ombudsman a power in equivalent terms to that in s 33(3) of the Auditor-General Act.  

Recommendation 21.3: Oversight of the legal services division 

Departmental and agency responses to own motion investigations by the Ombudsman should be overseen by the legal services division of the relevant department or agency. 

Recommendation 21.4: Log of communications 

The Ombudsman maintain a log, recording communications with a department or agency for the purposes of an own motion investigation. 

Recommendation 21.5: Powers of referral 

The AAT is soon to be replaced by a new administrative review body. S 10A and s 11 of the Ombudsman Act should be amended so as to ensure the Ombudsman has the powers of referral and recommendation of referral in respect of that new administrative review body. 

Improving the Australian Public Service 

Recommendation 23.1: Structure of government departments 

The Australian Government should undertake an immediate and full review to examine whether the existing structure of the social services portfolio, and the status of Services Australia as an entity, are optimal. 

Recommendation 23.2: Obligations of public servants 

The APSC should, as recommended by the Thodey Review, deliver whole-of-service induction on essential knowledge required for public servants. 

Recommendation 23.3: Fresh focus on “customer service” 

Services Australia and DSS should introduce mechanisms to ensure that all new programs and schemes are developed with a customer centric focus, and that specific testing is done to ensure that recipients are at the forefront of each new initiative. 

Recommendation 23.4: Administrative Review Council 

The reinstated Administrative Review Council (or similar body) should provide training and develop resources to inform APS members about the Commonwealth administrative law system. (see Automated Decision-Making and the Administrative Appeals Tribunal chapters) 

Recommendation 23.5: “Knowledge College” 

The Commonwealth should explore the feasibility of establishing an internal college within Services Australia to provide training and development to staff linked to the skills and knowledge required to undertake their duties. 

Recommendation 23.6: Front-line Service 

SES staff at Services Australia should spend some time in a front-line service delivery role and with other community partnerships. 

Recommendation 23.7: Agency heads being held to account 

The Public Service Act should be amended to make it clear that the Australian Public Service Commissioner can inquire into the conduct of former Agency Heads. Also, the Public Service Act should be amended to allow for a disciplinary declaration to be made against former APS employees and former Agency Heads. 

Recommendation 23.8: Documenting decisions and discussions 

The Australian Public Service Commission should develop standards for documenting important decisions and discussions, and the delivery of training on those standards. 

Closing observations 

Section 34 of the Cth FOI Act should be repealed The Commonwealth Cabinet Handbook should be amended so that the description of a document as a Cabinet document is no longer itself justification for maintaining the confidentiality of the document. The amendment should make clear that confidentiality should only be maintained over any Cabinet documents or parts of Cabinet documents where it is reasonably justified for an identifiable public interest reason.

RoboDebt Royal Commission Findings

The final report of the Royal Commission into the Robodebt Scheme comments 

 Robodebt was a crude and cruel mechanism, neither fair nor legal, and it made many people feel like criminals. In essence, people were traumatised on the off-chance they might owe money. It was a costly failure of public administration, in both human and economic terms. 

The report features damning comments on individuals and agencies, including the Office of the Australian Information Commissioner and the Commonwealth Ombudsman's Office.

The report states 

 There are different mindsets one can adopt in relation to social welfare policy. One is to recognise that many citizens will at different times in their lives need income support - on a temporary basis for some as they study or look for work; longer-term for others, for reasons of age, disadvantage or disability - and to provide that support willingly, adequately and with respect. An alternative approach is to regard those in receipt of social security benefits as a drag on the national economy, an entry on the debit side of the Budget to be reduced by any means available: by casting recipients as a burden on the taxpayer, by making onerous requirements of those who are claiming or have claimed benefit, by minimising the availability of assistance from departmental staff, by clawing back benefits whether justly or not, and by generally making the condition of the social security recipient unpleasant and undesirable. The Robodebt scheme exemplifies the latter. ... 

In September 2013, the Liberal-National Coalition, led by the Hon Tony Abbott MP, won government. Interviewed by the Australian Financial Review in December 2012, Mr Abbott had made some expectations clear, in what the writer described as a “blunt warning to public servants:” Because what normally happens is that a government comes in, they’ve got all these policies and they rely for the implementation on the public service ... There’s nothing wrong with that as such, but what I’d like to be able to say to the public service is, ‘Look, this is how we think it needs to be done’. Rather than relying on them to tell us, I’d like to be in a position to tell them on day one. 

The executive government depends on the public service for its administration, but the more authoritatively the government of the day can speak to the public service, the more likely it is that the public service will administer your policy in a way which recognises its spirit and its letter. 

Budget control and debt reduction had been second in the Coalition’s list of policy priorities in its election manifesto. Consistent with that policy, in July 2014 the Hon Kevin Andrews MP, the Minister responsible for the Department of Social Services (DSS), proposed the setting up of an interdepartmental committee to develop a whole-of-government strategy for recovery of debt owed by members of the public to the Australian Government. The terms of reference included examining data matching, using online and self-servicing options, using external debt collection agencies and applying a standardised interest charge to debts. And in relation to welfare services, in January 2015 the newly-appointed Minister for Social Services, Mr Morrison described himself in an interview as planning to be a “strong welfare cop on the beat;” because Australians were “not going to cop people who are going to rort [the social security] system.” 

It was in this climate that the essential features of the Robodebt scheme were conceived by employees of the Department of Human Services (DHS), were put by way of an Executive Minute in February 2015 to the Minister for Human Services, Senator the Hon Marise Payne, and to Mr Morrison as Minister for Social Services. Approved by the latter, they made their way in the form of a New Policy Proposal (NPP) through Cabinet with remarkable speed. In May 2015, as part of its 201516 Budget, the government adopted a measure named Strengthening the Integrity of Welfare Payments. Described as a package for “enhancing ... fraud prevention and debt recovery and improving assessment processes” in relation to the payment of social security benefits, it was expected to save $1.7 billion over five years. Most of those savings were to come from the Employment Income Matching measure, the initiative which began Robodebt, which was proposed to recover overpayments resulting from incorrect declarations of income. Another measure in the package, titled “Taskforce Integrity”, involved the secondment of Australian Federal Police officers and was designed to crack down on welfare fraud. The two were often, and not coincidentally, mentioned in the same breath. 

In summary, the Employment Income Matching measure entailed a process of data-matching and debt raising to be applied to some 866,857 instances of possible overpayment for the financial years 201011, 201112 and 201213 identified through a comparison of Australian Taxation Office (“ATO”) and DHS data. DHS would obtain information from the ATO as to what a benefit recipient’s employers had returned as the income earned by the recipient in the relevant financial year (“PAYG data”), compare it through an automated system with what had been declared to DHS by the recipient, and in the event of discrepancy would require the recipient to go online to explain it. 

If the recipient did not respond or provide details which explained the discrepancy, or agreed with the PAYG data, the amount declared by the employer would be averaged across a period of time, which was often whatever employment period the employer had indicated. The system applied some rules which attempted to account for the varied circumstances of income support recipients; however, the basic premise was that the amount declared by the employer would be divided up evenly, and allocated into the number of fortnights included in the period being reviewed. (That process was variously referred to income “averaging”, “smoothing” or “apportioning”.) 

Where, in any given fortnight, the averaged fortnightly amount exceeded the income the recipient was entitled to receive before reduction of benefit, it would be taken that there had been an overpayment, a debt would be raised accordingly and steps would be taken to recover it. Where the recipient was still on benefit, deductions would be made from the income support currently being paid. Where the recipient was no longer on benefit, they would be required to enter a repayment arrangement. Debt collectors would be involved if they did not respond, and they were liable to have any income tax refund they were entitled to receive garnished. Robodebt began with some pilots in 2015, was rolled out with its online platform in September 2016 and continued in various iterations for four years. 

In a broad sense, certain elements of the Robodebt scheme were not new. DHS had for some years undertaken data-matching with the ATO to identify discrepancies between employer-reported and recipient-declared income. In the past, such discrepancies had served as a trigger for a manual review of those files exhibiting the strongest likelihood of overpayment and the highest levels of discrepancy (about 20,000 such files a year). Those reviews involved a DHS compliance officer checking the file for relevant information, contacting the recipient to see if any discrepancy could be readily reconciled and, if not, requiring their employers to provide more specific payment information. The raising of a debt and its recovery might then follow. 

There were five significant differences under Robodebt. 

The first and major difference was that the PAYG data was to be regarded as the primary source of earned income information, which could be acted on to raise debts although unconfirmed by the employer or the recipient. 

Secondly, where in the past compliance officers had engaged with recipients, examined the file and used powers under the Act to seek information from employers in order to determine whether a debt existed, now recipients were given a gross income figure with a period which might or might not accurately reflect the period worked, with the onus placed on them to provide details to contradict it, or have a debt and, prospectively, a 10 per cent penalty automatically raised against them. 

Thirdly, where averaging had previously been used to arrive at a fortnightly income figure in limited circumstances and often with the agreement of the recipient that it gave a figure which reflected his or her actual income, the PAYG data averaged on a fortnightly basis for the declared period was now applied automatically where alternative information was not provided and accepted. That was despite the fact that entitlement to income support was to be determined under the Social Security Act 1991 by reference to the actual fortnightly income of the recipient, and it could not safely be assumed that recipients earned precisely the same amounts each fortnight they worked or that they worked every fortnight during the period nominated by an employer (which did not need to be more precisely stated than the relevant financial year). In basing entitlement on actual fortnightly income, the Social Security Act reflected the policy aim of social welfare payments: to support people in their periods of real need so that a recipient who earned little or nothing in a given fortnight would be assisted then. 

Fourthly, critical to achieving the predicted savings, where previously compliance officers had been involved, it was now anticipated that in most instances the entire process would be conducted online, the aim being to reduce (and preferably obviate) human involvement at the DHS end. 

The fifth and final difference: where data-matching and consequent reviews had in the past been conducted on an annual basis, now recovery efforts would be directed over several years, going back some five years from the implementation of the program. (The measure was extended to include the 2013-14 and 2014-15 financial years in the 2015 MYEFO, and the 2015-16, 2016-17 and 2017-18 years in the 2016-17 MYEFO.) This seems to have been based on a notion that because discrepancies in the hundreds of thousands had been identified in previous financial years there must also be debts in the hundreds of thousands of dollars in those years awaiting recovery; ignoring the facts, firstly, that a discrepancy did not necessarily indicate an overpayment and secondly, that the 20,000 or so files involving discrepancy which had already been reviewed for each of those years had probably already yielded the bulk, in monetary terms, of the overpayments in those years. 

In late 2014, in response to DHS’s initial canvassing of the Robodebt concept, DSS had obtained an opinion from its employed “in-house” lawyers. Their advice had emphasised the requirement in the statutory benefit entitlement rate calculators to consider actual fortnightly earning or receipt of income, expressing concern that averaging might, therefore, not be consistent with the legislative framework. A policy advice given at the same time similarly pointed out that calculation by averaging did not accord with the legislation and a debt amount calculated in that way might be wrong. 

In February the following year, DHS officers provided the Ministers for Social Services and Human Services with the Executive Minute containing a number of proposals including Employment Income Matching (Robodebt). It pointed out that (consistently with its 2014 advice) DSS had advised policy change might be, and legislative change would be, needed to implement the Employment Income Matching initiative. On 20 February 2015, Mr Morrison signed the Minute, indicating his agreement that initiatives including Employment Income Matching be developed as a package of NPPs and that DHS work with DSS to advance consideration of the necessary policy and legislative change. 

By 3 March 2015 an NPP reflecting the Employment Income Matching initiative had been prepared for inclusion in an exposure draft of a Social Security Portfolio Budget Submission. It contained no reference to legal risks and said that legislation was not required. The Scheme was approved by Cabinet and proceeded without the legislative change to support averaging which DSS had said was needed. That awkward question was avoided in the NPP by the simple expedient of not mentioning averaging and saying instead, falsely, that the new approach would not change how income was assessed or payments calculated. 

Given that it was still proposed to undertake 866,857 compliance reviews (or “interventions”) for the 201013 financial years producing gross savings of $1.1 billion (as compared with an estimated $1.2 billion in the Executive Minute) and given the speed with which the NPP was developed and approved for presentation to Cabinet, it is not credible that anyone closely involved with the measure could have believed that there had been some fundamental change to the proposal so that it no longer entailed averaging or for some other reason ceased to require legislative change. It is worth considering for a moment what legislative change to enable the reliance on averaging inherent in the Robodebt scheme would have entailed: a retrospective change to the statutory basis on which social security recipients had been entitled to receive, and had received, income support going back years. It would certainly have encountered parliamentary and public opposition. 

The use of averaging was by no means the only in the Robodebt scheme. No consideration seems to have been given to the legal basis on which DHS could ask recipients to provide information in response to it. The letters sent to recipients during the various iterations of the program used language indicating that a response was required, not just requested (“You need to tell us ...”) but they were not said to be notices from the secretary of DHS requiring information under any of the provisions of the Social Security (Administration) Act which enabled information to be obtained in that way. Similarly, there is no evidence that any thought was given to the grounds on which a penalty of 10 per cent (euphemistically called a “recovery fee”) was added to the debts raised against recipients. In subsequent internal legal advice, there seems to have been an assumption that if averaging resulted in a debt, it could be assumed that the recipient must have failed to inform DHS of a change in their income. That was an extraordinary assumption. The notion that averaging without more could prove a debt was unsound in the first place, but to charge a penalty required a conclusion that the recipient had committed a breach of the Social Security (Administration) Act by failing to report a change in income, and required correspondingly compelling evidence to justify it. That seems not to have crossed anyone’s mind. 

Those were respects in which the Scheme was devised without regard to the social security law. More fundamentally, the way averaging was used in the Scheme was essentially unfair, treating many people as though they had received income at a time when they had not, and did not need support when they did, with the further fiction that they now owed something back to the government. It subverted the rationale on which income support was provided in the first place: as a safety net to ensure that people received help when they most needed it. 

There were other fundamental unfairnesses in the program. No regard was had to the sheer unreasonableness of placing the onus on recipients to attempt to establish what their earnings were for periods going back as long as five years when they had been given no reason to expect anything of the kind at the time they declared their income and received their benefits. (DHS’s own website, at least at the start of the Robodebt scheme, contained the information that it was necessary to retain payslips only for a period of six months.) Some recipients were unable to produce payslips because employers had gone out of business or were unhelpful. Others were reluctant to approach employers for a variety of reasons, including poor relations with them, an unwillingness to trouble them, or embarrassment at having to disclose receipt of welfare benefits. 

The system was set up with the intention of forcing recipients to respond online to the PAYG data and to minimise contact with DHS officers, in the interests of economy; this was vital to the anticipated savings. (Indeed, having had the benefit of “behavioural insights,” DHS employees setting up the system made a conscious decision not to include any telephone number for the Customer Compliance division in the letters sent to recipients, so as to force them to respond online, while compliance officers were told to direct recipients online.) No outside parties with an interest in welfare were consulted in order to understand how the Scheme might actually affect people. There appears to have been an obliviousness to, or worse a callous disregard, of the fact that many welfare recipients had neither the means nor the ability to negotiate an online system. The effect on a largely disadvantaged, vulnerable population of suddenly making demands on them for payment of debts, often in the thousands of dollars, seems not to have been the subject of any behavioural insight at all. 

Some of the difficulties in the system in its initial online iteration (the Online Compliance Intervention (OCI)) were the result of its being put into operation in haste, rather than conscious decision-making. A pilot and a manual version of the program were conducted in 2015, using manual rather than automated intervention but relying on the PAYG data to raise a debt in the absence of a response. The online component of the Scheme was the subject of a limited release in July 2016, but it was fully rolled out in September of that year although no proper evaluation of the pilot or manual program had taken place and there were numbers of unresolved problems. The system sometimes deleted details of previously declared income; there were failures in employer name matches which led to wrong duplication of earnings; particular allowances and payments were wrongly treated. No user testing had been done on the screens presented to recipients when they responded to the DHS initial letter; that was supposed to be done in 2017. Recipients had difficulty uploading data and from time to time the platform went down altogether. It was not just recipients who struggled with the system; so did DHS compliance officers. 

Other problems were inevitable. Former recipients were contacted through the addresses held for them on DHS records – a postal address or a myGov account – although, since the debts went back some years, they might well have moved away or ceased to monitor their myGov account for any Centrelink notices. Their inevitable failure to respond resulted in income averaging being applied and debts raised against them. The 2015 pilots showed that only about 40 per cent of customers were making contact. On that evidence it could reasonably be expected that a majority of recipients would, when the automated system began, be the subject of automated debt raising using averaging because they did not receive the notifications, did not understand what they needed to do, or thought their dealings with Centrelink were long past. Others did log on and, as the initial letter instructed, confirmed the information presented – the employer’s name and the amount of earnings in the period nominated by the employer – on the basis that it did represent their income for the financial year in question. They were given no warning that their answer would then be used to raise a debt against them by way of averaging over the employer- nominated period, often the entire financial year, even where they had worked for shorter periods. (DHS’s own figures showed that as at 27 January 2017, 76 per cent of those who were subject to the OCI had debts raised based on averaging of their earnings: 99,404 recipients). And no-one could understand how the debts were calculated, because the debt notices gave no explanation. 

The disastrous effects of Robodebt became apparent soon after it moved, in September 2016, from the last part of the limited release, involving around 1000 recipients, to sending out 20,000 notifications per week. In December 2016 and January 2017 the media, traditional and social, were saturated with articles about people who had had demonstrably wrong debts raised against them, and in many instances heard of it first when contacted by debt collectors. The human impacts of Robodebt were being reported: families struggling to make ends meet receiving a debt notice at Christmas, young people being driven to despair by demands for payment, and, horribly, an account of a young man’s suicide. The Australian Council of Social Services, the peak body for community services supporting recipients, wrote to the Minister for Human Services in December 2016, pointing out the inaccuracies which were being produced by averaging instead of applying actual fortnightly income figures, the unfairness of charging a penalty where it was not established that a recipient had even been contacted, the difficulty for people in recovering information from employment years past, the technical difficulties with the online system, the lack of assistance from Centrelink officers and the commencing of debt collection often without warning to the recipient. 

The beginning of 2017 was the point at which Robodebt’s unfairness, probable illegality and cruelty became apparent. It should then have been abandoned or revised drastically, and an enormous amount of hardship and misery (as well as the expense the government was so anxious to minimise) would have been averted. Instead the path taken was to double down, to go on the attack in the media against those who complained and to maintain the falsehood that in fact the system had not changed at all. The government was, the DHS and DSS ministers maintained, acting righteously to recoup taxpayers’ money from the undeserving. 

DSS obtained cover in the form of what was called a “legal” advice supporting averaging from one of its in- house lawyers. That advice expressed the view that it was open to the DHS secretary “as a last resort” to act on averaged income to raise and recover a debt where a recipient did not provide income information after being given an opportunity to do so. No legislative provision or case law was cited to support that proposition. That advice – but not the 2014 advice pointing out the inconsistency of averaging with the legislative framework – was provided to the Commonwealth Ombudsman, who was conducting an own motion investigation into the Scheme, including a consideration of its legality. 

When the Ombudsman pressed for any advice DSS had given about legislative change needed for the use of ATO data prior to the February 2015 Executive Minute, senior DSS officers provided the 2014 advice and offered this justification of its obvious inconsistency with the 2017 advice. After the 2014 advice was given, DHS had adjusted the process, giving recipients the opportunity to correct the PAYG data, so as to assuage DSS’s concerns and satisfy it that legislation would not be needed. This explanation suffered from two deficiencies: it was untrue – the opportunity to correct information had always been part of the proposal – and it made no sense. DSS reinforced its position with a letter from its secretary to the Ombudsman asserting DSS’s satisfaction that the system operated “in line with legislative requirements” and that DHS had made no changes to the way it assessed PAYG employment income. 

Uncompelling though DSS’s 2017 advice and explanation were, the Ombudsman decided against raising questions in his report about whether averaging under the scheme had legislative authority. With a good deal of input from DHS employees, he reported in April 2017 that, while there were numerous technical problems with the operation of the OCI, after examination of the underpinning business rules, he was satisfied that it raised accurate debts based on the available information. Those business rules, the Ombudsman concluded, “accurately capture[d] the legislative and policy requirements.” Thereafter, ministers and departmental representatives relied on the Ombudsman’s report as proof of the legality and appropriateness of Robodebt against all comers: the media, opposition politicians, social welfare bodies, critics in academia and a Senate Committee which made adverse findings. 

(In 2018, the Ombudsman again raised concerns about the legality of averaging but was fobbed off with explanations that it involved the best available evidence and was only used where the customer had not taken the opportunity to provide information. DHS dissuaded the Ombudsman from mentioning the legality issue at all in his 2019 report into implementation of the recommendations in the 2017 report.) 

Meanwhile, the Scheme trundled on, with the government engaging PricewaterhouseCoopers to assist with some of its clumsier components (although never taking receipt of a critical report prepared by the consultancy). It had to accept that the Scheme was not functional in many respects. One was that the online component was an abject failure, with the result that large numbers of employees had to be drafted on short-term contracts or by way of labour hire into the DHS to cope with enquiries. And it became apparent, partly as a result of that factor, but also because of the overestimation in the first place of the numbers of debts and their average amount, that the touted savings would never be reached. 

The cover-up continued. Social Security recipients against whom a debt was raised could seek review from the first level, or Tier 1, of the Administrative Appeals Tribunal (the AAT). To do so required some understanding of what had actually happened, which was virtually impossible to ascertain on the DHS documents, as well as the confidence and capacity to seek review. Still, a number of decisions was made by AAT members setting aside debts raised under Robodebt in its various incarnations for the reason that averaging, of itself, could not provide evidence of actual income or, it followed, overpayment and debt. Section 8(f) of the Social Security (Administration) Act requires the DSS secretary to apply government policy with due regard to relevant decisions of the AAT. If the secretary disagreed with them, Tier 1 decisions could be appealed to Tier 2, a higher level of the AAT. Arrangements between DHS and DSS required that DHS refer AAT decisions to DSS where there was a significant error of law, a significant issue of policy or administrative practice, or the matter had attracted or was likely to attract media or parliamentary attention. And DHS and DSS had adopted joint litigation principles, which required that the decision whether to appeal any decision would be made with regard to whether there was need for clarification of a significant point of law or stated Government policy. 

The AAT decisions setting aside Robodebts on the ground that evidence of averaging was not capable, without more, of proving a debt met those criteria. Because DHS disagreed with them, it ought to have referred them to DSS for consideration of appeals and it certainly should not have continued to use averaging in disregard of what was said in them. However, DHS took the course instead of taking whatever steps were directed by the AAT to rectify the individual cases by obtaining other evidence, but otherwise ignoring the decisions. The fact that Tier 1 AAT decisions were not published made it easier for it to do so. 

DSS seems to have taken little interest in the AAT cases until mid-2018, when DHS referred an AAT decision that income averaging was unlawful to it. The AAT member had placed reliance on an article by Professor Carney, a former AAT member, raising a number of legally-based criticisms of averaging. The combination of the case and article prompted a decision to obtain an advice from solicitors, Clayton Utz, as to the lawfulness of using averaging to determine income. The draft advice which the solicitors provided said that it was not permissible to determine a recipient’s entitlement to benefit by averaging employer-reported income from the ATO. It was received in August 2018 and should have prompted, if not the immediate suspension of Robodebt averaging, at the least the immediate obtaining of further advice from the Solicitor-General. However, it was never put into final form or acted on. 

It took two applications for judicial review made to the Federal Court in 2019, Masterton and Amato, to finally change the government’s position on Robodebt averaging, but that did not come quickly. In relation to the first, Masterton, lawyers with the Australian Government Solicitor’s office advised DHS in March 2019 that, given that the applicant had not been receiving a consistent fortnightly income, averaging could not provide an accurate assessment of her income or establish the existence of a debt, and there was no statutory basis for deeming that it could. DHS then had two options: it could run its averaging argument and get a Federal Court ruling as to its legality or it could recalculate on other evidence to arrive at a nil debt figure in the hope of ending the proceeding. Digging in, DHS chose the second course but, at the Australian Government Solicitor’s suggestion, took steps to obtain further advice from the Solicitor-General. In September 2019, the Solicitor-General advised that averaged PAYG data could not support a conclusion as to the amount or existence of a debt in the absence of further evidence that the recipient earned a consistent fortnightly income over periods precisely aligning with the periods declared by the employer to the ATO. That advice led to the settlement of the second application for review, Amato, with an accompanying declaration by the Federal Court that averaged PAYG income information was not capable of satisfying a decision-maker of the existence of a debt. Shortly before the settlement of Amato was formalised, on 19 November 2019 the Minister for Government Services announced that debts would no longer be raised solely on the basis of PAYG data. On the same day, recipients present and past, against whom debts had been raised using the averaging process, commenced a class action against the Australian Government. (Soon after, DHS, which had been renamed Services Australia, ceased to exist, being recreated as an agency within the Social Services portfolio.) In May 2020, the Solicitor-General advised that the government was bound to fail in defending the claim for unjust enrichment made in the class action. That was followed by the government’s announcement that it would refund debts raised wholly or partly on the basis of averaging if they had been repaid, and would reduce them to zero (“zero” them) if they had not. This involved reimbursement of $746 million to some 381,000 affected individuals and writing off debts amounting in total to $1.751 billion. In November 2020, on the day it was set for trial, the government settled the class action. 

Declaring income earned was not necessarily straightforward for income support recipients because their earnings might be irregular and the periods over which they earned would not necessarily match the Centrelink fortnight on which income was calculated. Inaccuracies could be hard to avoid. But DHS did nothing by way of investigation of discrepancies before demanding explanations from recipients. For people who were able to prove they did not owe a debt, it was a stressful and time-consuming process. Undoubtedly some people paid amounts they did not owe because they were not in a position, practically or psychologically, to demonstrate otherwise. 

For other people who might have owed what would, certainly to them, have been significant amounts, the process was unreasonable: suddenly and unexpectedly being confronted with demands for information and payment in respect of benefits which might have been received and spent long ago. People who did owe some amount were unable to get any clear information as to what they owed and why. Of those people who were overpaid, it is questionable how many of them owed debts at a level which justified interrupting their lives years later to demand repayment and it is unknown how many of the debts recovered during the life of the Robodebt scheme actually proved, once payslips were provided, to have been of too small an amount to meet the cost of recovery. 

Identity Crime

The Second Reading speech for the South Australian Statutes Amendment (Identity Theft) Bill 2023 - to amend the Criminal Law Consolidation Act 1935 (SA), the Criminal Procedure Act 1921 (SA), the Sentencing Act 2017 (SA) and the Youth Court Act 1993 (SA) - states

This bill updates the provisions in part 5A of the Criminal Law Consolidation Act to make it easier to prosecute identity theft and to increase penalties associated with the crime. It changes the law so as to support victims by making it easier to quickly obtain verification from a court that they have been the victim of identity theft, which will assist the victims to restore their creditworthiness. 

 

The bill inserts a new offence into the Criminal Law Consolidation Act of possessing or using another person's identification information without reasonable excuse. The new offence, in section 144DA, places the onus of proof on the defendant to show that they have a reasonable excuse for possessing another person's personal identity information. 

 

This offence is a summary-level offence carrying a maximum penalty of two years' imprisonment. The reverse onus nature of the offence aims to address the fact that identity theft offences are becoming increasingly prevalent and are generally committed remotely from the victim, leaving little physical evidence, and are far harder to track than many other property offences. 

 

Varying the burden of proof in this way recognises that the reasonable excuse of possessing another person's identity information relates to the facts which, if they exist, are readily provable by the accused as matters within his or her own knowledge or to which they have ready access. 

 

The new offence is limited to possession of personal identification information of natural persons rather than bodies corporate. The new offence does not include the possession of public identification information. This is defined to include name, address or other contact details, date or place of birth, marital status and relatives. These details are often readily available publicly and possession of them does not constitute an offence. 

 

When this council last considered a similar bill, I supported amendments aimed at removing some of the reverse onus of proof provisions in this clause. Upon coming into government, I consulted with the police commissioner and inquiries were made about whether this bill could be effective without the reverse onus of proof. The commissioner's response noted his support for the inclusion of these matters in this bill. He noted that it was not uncommon in legislation and is utilised in a number of offence settings, including summary offences of unlawful possession and carry offensive weapon. 

 

Given such feedback, we have formed the view that this element should be maintained. However, an additional exemption has been added to the bill beyond what has previously been included. There are a number of exemptions to the reverse onus of proof aspect of the offence, including for the use in the ordinary course of a lawful occupation or activity, where the defendant is a close relative of the victim, where the defendant holds the power of attorney for the victim, where the defendant is a guardian or administrator for the victim, or where the personal identification information consists of a single set of personal identity information that was readily publicly available. 

 

Where the defendant falls into one of the above-mentioned categories, the onus is then on the prosecution to prove beyond reasonable doubt that the defendant had possession of the relevant material without reasonable excuse. 

 

The existing identity theft offences are very narrow. Currently, sections 144B and 144C require the prosecution to prove that the assumption of the false identity or the misuse of the personal identity information was done to commit a serious criminal offence. A serious criminal offence is defined in section 144A as an indictable offence or one prescribed by regulation. 

 

This requirement has meant that the threshold for the prosecution has been unreasonably high and failed to capture many modern identity theft schemes. For instance, 'card not present' fraud, skimming, payWave and other high volume and low value offences are not usually captured. It is proposed in this bill to remove the requirement for intent to commit a serious criminal offence and simply refer to a criminal offence. With this amendment, law enforcement will be able to target a wider spectrum of offending. 

 

This bill also increases the penalty for the existing offences of producing or possessing prohibited material in section 144D from three to five years' imprisonment to provide a greater deterrent for this type of behaviour. 

 

Finally, the bill modifies existing provisions regarding the issuing of identity theft certificates. An identity theft certificate is a document that can be provided by a court to verify that the victim is a victim of identity theft. Victims then use the certificate to prove to relevant authorities that their identity has been compromised. Under the current framework, many victims are not able to obtain an identity theft certificate. Currently, section 125 of the Sentencing Act requires first, the conviction of the offender, and secondly, an application by the victim to the court that arrived at the finding of guilt for a certificate to be issued. 

 

This process presents difficulties for many victims. Many perpetrators are never found or charged, as it is common for them to be located outside of Australia and, even if the perpetrator is found and charged, it can take years for a prosecution to be completed. There is also a low rate of successful prosecutions. In the meantime, victims can spend significant amounts of time and effort convincing government departments, agencies, utilities or credit reporting agencies that their identities have been compromised before it is possible for them to obtain credit services. 

 

In cases where there is a prosecution, the long wait for a court outcome exacerbates the financial detriment and emotional stress experienced by victims. The bill inserts a new section 84 in the Criminal Procedure Act 1921 enabling the Magistrates Court or, in the case of minors, the Youth Court to issue a certificate to victims of identity theft where the court is satisfied on the balance of probabilities that they are the victim of identity theft. 

 

As the ability to obtain a certificate is no longer contingent on a conviction of the perpetrator, the provision has been moved from the Sentencing Act to the Criminal Procedure Act. The bill also makes consequential amendments to the Youth Court Act to allow the Youth Court to also issue identity theft certificates where the victim is a minor. 

 

Finally, I note that the former version of this bill introduced under the former Liberal government included further provisions which rolled back the current exclusions of persons under 18 from the identity theft provision already in the Criminal Law Consolidation Act. Labor, then in opposition, opposed these provisions at the time and we have removed them from the bill that is introduced today.

Interregnum and Treason

Tracy Neal of the NZ Herald reports - under 'Court action follows Tasman couple’s refusal to pay rates based on 1649 proclamation' (5 July) - on a pseudolaw argument by Robert (Dave) and Janis (Jan) Richardson in refusing to pay rates. 

The Richardsons modestly argue the Local Government Rating Act 2002 (NZ) is invalid because “all statutes in New Zealand were Ultra Vires” (unlawful) and that the court has no jurisdiction, thus providing a letter stating “Thank you for your invitation to appear in court but we decline your offer”. The couple designated the land as allodial, reportedly claiming absolute ownership of the land and not being bound by any law. 

The Herald reports 

The Richardsons claimed in a letter sent to the council’s rates team in December, which was read out in court, that on January 30, 1649 – the day on which Charles I was beheaded in the Tower of London, an Act of Parliament was passed “prohibiting the proclamation of any person as King of England, Ireland or the Dominions”. 

I note that Charles was not beheaded in the Tower.

The Richardsons reportedly believe that the Act mean every monarch proclaimed after the execution of Charles I was “a traitor to the Parliament of England and subsequently New Zealand”. On that basis the Governor General supposedly signed the Rating Act “on behalf of the treasonous Queen Elizabeth II of England”, and in doing so, became a traitor to New Zealand’s Parliament, which made the Act ultra vires. Further, “persons working under the purported authority of the illegal Act” acted in bad faith and may be liable for criminal or civil action. 

It is unclear what that action would involve, given that all statute law in NZ since British settlement would supposedly be ultra vires

 The Herald notes 

 Judge Zohrab noted their challenge to the court’s jurisdiction curiously relied on District Court rules, which were a product of statute. 

“Surprisingly, given they maintain all statutes are unlawful they then purport to rely on the Local Government Act, the Crimes Act, Imperial Laws Application Act, and the Criminal Procedures Act,” Judge Zohrab said.

Meanwhile 'The Travels of Treason' by Michael Lobban in Modern Law Review (online July 2023) comments 

The law of treason has been criticised for being based on ‘outdated’ statutes which are inflexible and unsuitable for modern needs. However, a historical examination of the evolution of treason in Britain and its empire suggests that the law was often adaptable. In nineteenth century England, jurists wished to rein in older constructive treasons, to leave the 1351 Act as the appropriate law for wartime treasons, while the more lenient 1848 Act was to be used against ‘political’ conspiracies to subvert the state by force. However, the ‘constructive’ treasons remained part of the law, and were given new life in imperial contexts. In Ireland and Canada, the idea that plotting the king's ‘political’ death was treason remained central to understandings of the 1351 Act. In India, the interpretation of the provision of the penal code against ‘waging war’ against the government was influenced by old English ideas of ‘constructive’ treason and used against those who challenged British rule. Imperial understandings of treason were also shaped by cases arising out of the Boer war, where the underlying law was Roman-Dutch law. Rather than being restrictive and unable to adapt to modern needs, the law of treason was flexible and malleable. 

The law of treason has attracted a good deal of attention in recent years. Much of it has focused on the fact that the basis of the law remains a statute of 1351 which codified the medieval law of treason. At the heart of the offence is the betrayal of one's allegiance to one's king. This statute defines three central manifestations of treason: compassing and imagining the king's death; levying war against the king in his realm; and giving aid and comfort to the king's enemies, either in his realm or elsewhere. A number of modern critics have argued that the ‘obscure and difficult’ language of this statute makes it hard to apply to contemporary situations, and have called for a reform of the law to modernise it. Treasonable offences can also be punished under the 1848 Treason Felony Act. Under this statute, a term of life imprisonment can be imposed on anyone who ‘within the United Kingdom or without’ shall ‘compass imagine devise or intend’ to ‘deprive or depose’ the monarch ‘from the style, honour, or royal name of the imperial crown of the United Kingdom’. A similar sentence can be imposed on those who conspire to use force to compel a change of policy or to overawe parliament, as well as on those who stir up any foreigner or stranger to invade. Although often overlooked, this legislation has also been subject to criticism. In 2003 Lord Steyn described it as ‘a relic of a bygone age’ which ‘does not fit into the fabric of our modern legal system.’ Such comments seem to suggest that the English law of treason is archaic, unworkable and in need of reform. The 1381 Act is often seen as unusable because it is too narrow and restrictive in its formulation, while the 1848 Act is seen as being too broad to be applied in practice. 

Given the repeated recent calls to revisit or reform the law of treason, this article seeks to enrich our understanding of it by offering a historical re-examination of the evolution of treason in Britain and its empire from the eighteenth to the twentieth century. It shows that the law of treason was more adaptable and flexible than is sometimes assumed, and that it operated differently in different parts of the empire. It will be seen that in Britain, the law of treason was developed in the mid-nineteenth century in a way to provide distinct tools (with distinct penalties) for different kinds of offences against the state. From the late eighteenth century onwards, attempts were made to rein in the reach of the medieval statute – which had been expanded by judges in the early modern era to cover a wide range of ‘constructive’ treasons, including political offences which did not threaten the life of the king – in order to make it primarily a legal tool to use in times of war. The legislation of 1848 was developed to provide a lesser penalty for political treasons. Despite its broad wording, the Treason Felony Act was not intended to facilitate the prosecution of newspaper editors seeking constitutional reform (or the abolition of the monarchy) but was aimed at Irish Republicans wishing to obtain a change of government policy by force. This was to adapt the law of treason in a changing political society in which the franchise was expanding and space was increasingly allowed for political protest, at least of a non-violent kind. However, as shall be seen, the law of treason was not limited to England. In an age of imperial expansion, questions were asked about what constituted treason beyond metropolitan shores. Both the medieval and Victorian statutes were applied elsewhere in the empire, but the way in which they were applied, and the meanings attributed to them could vary according to context. Within the empire, the law of treason might be used in far less liberal ways than was the case at the metropole; and ways which might, in turn, exert an influence on how the English saw their own law.