Export Controls

Catching up with the 'Export Controls and Human Rights Initiative Code of Conduct' released at the Summit for Democracy in March this year. 

The US State Department comments

 The United States continues to put human rights at the center of our foreign policy. The Export Controls and Human Rights Initiative – launched at the first Summit for Democracy as part of the Presidential Initiative for Democratic Renewal – is a multilateral effort intended to counter state and non-state actors’ misuse of goods and technology that violate human rights. During the Year of Action following the first Summit, the United States led an effort to establish a voluntary, nonbinding written code of conduct outlining political commitments by Subscribing States to apply export control tools to prevent the proliferation of goods, software, and technologies that enable serious human rights abuses. Written with the input of partner countries, the Code of Conduct complements existing multilateral commitments and will contribute to regional and international security and stability. 

In addition to the United States, the governments that have endorsed the voluntary Code of Conduct are: Albania, Australia, Bulgaria, Canada, Costa Rica, Croatia, Czechia, Denmark, Ecuador, Estonia, Finland, France, Germany, Japan, Kosovo, Latvia, The Netherlands, New Zealand, North Macedonia, Norway, Republic of Korea, Slovakia, Spain, and the United Kingdom. The Code of Conduct is open for all Summit for Democracy participants to join.

Indeed, Bulgaria and Albania 

The Code of Conduct calls for Subscribing States to:

• Take human rights into account when reviewing potential exports of dual-use goods, software, or technologies that could be misused for the purposes of serious violations or abuses of human rights. 

• Consult with the private sector, academia, and civil society representatives on human rights concerns and effective implementation of export control measures. 

• Share information with each other on emerging threats and risks associated with the trade of goods, software, and technologies that pose human rights concerns. 

• Share best practices in developing and implementing export controls of dual-use goods and technologies that could be misused, reexported, or transferred in a manner that could result in serious violations or abuses of human rights. 

• Encourage their respective private sectors to conduct due diligence in line with national law and the UN Guiding Principles on Business and Human Rights or other complementing international instruments, while enabling non-subscribing states to do the same. 

• Aim to improve the capacity of States that have not subscribed to the Code of Conduct to do the same in accordance with national programs and procedures.

Surveillance

'Under Their Eye: The Surveilled Student' by Danielle Keats Citron in (2023) 76 Stanford Law Review (forthcoming) argues 

We live in a golden age of student surveillance. Some surveillance is old school: video cameras, school resource officers, and tip lines. Old-school surveillance, which is largely cabined in time and location, is now paired with new-school surveillance, which extends monitoring far beyond school hours and hallways. School-provided laptops have corporate software installed that does two things: first, it blocks “objectionable” material and informs administrators about the content that students tried to access; second, it scans students’ online activities wherever (home) and whenever (weekends). If inclined, teachers and school resource officers can watch in real-time students’ searches, browsing, emails, chats, photos, calendar invites, geolocation, and more. Companies continuously monitor students’ laptop activity in the name of safety. Student surveillance is 24 hours a day, seven days a week, 365 days a year. There is no reprieve. 

This essay does what many school districts and companies refuse to do in the open—provide a clear-eyed analysis of the costs and benefits of student surveillance. My assessment is limited to what investigative journalists, advocacy groups, and researchers have discovered about opaque corporate practices and companies reveal. What we know is too little—the lack of transparency is part of the problem. Lawmakers and the public need a full view of the stakes, so they can have a meaningful say. 

Children’s safety is a paramount value. The question remains whether student surveillance protects students from self-harm, violence, and cyber bullying, as companies claim. School administrators say that the monitoring services make them “feel” safer and better informed. But feeling isn’t fact. Continuous and indiscriminate monitoring of students’ online activities is “security theater.” From what we know, students may be less safe and less well-off. Companies claim that their algorithms detect suicidal ideation, bullying, and impending violence, and that content moderators alert school officials and law enforcement so they can prevent harm. Proof of concept is scant, but from what we do know, most often, alerts from surveillance companies create a chain reaction of discipline for minor infractions. Serious punishment, like suspension, is disproportionately meted out to Black female and male students. Monitoring systems “out” LGBTQ+ students to teachers and parents (who may be unsupportive or worse). These costs are mostly borne by students from disadvantaged backgrounds—a blow to equal opportunity. 

Dragnet-style surveillance exacts profound costs to what I describe as student intimate privacy. Student intimate privacy is essential for children’s self-development and self-expression. Unlike most other periods in their lives, students experience tremendous personal growth and development. Students’ job is learning, listening, reading, speaking, exploring, and befriending. It is figuring out who they are and want to become. Schools play a central role in all of that—their job is preparing and cultivating an engaged citizenry. Student surveillance diminishes that potential. It harms students as listeners because filtering software blocks sources of knowledge, including news stories and resources for sexual health; it harms students as speakers because it creates an atmosphere of fear and intimidation that results in self-censorship and conformity. 

Schools justify their contracts with surveillance companies by pointing to a federal law designed to prevent students from accessing obscene material, a law that by its own terms rejects continuous tracking of students’ online activities. Congress must step in to clear up the confusion. Lawmakers should provide incentives to schools to ensure that surveillance technologies work and that they minimize intrusions on student intimate privacy, free expression, and equal opportunity to the greatest extent possible. Reforms providing vigorous protection for students’ intimate privacy are crucial to students’ free expression and schools’ role in cultivating democratic citizens.

Moderation

'The effectiveness of moderating harmful online content' by Philipp J Schneider and Marian-Andrei Rizoiu in (2023) 120(34) PNAS comments 

 In 2022, the European Union introduced the Digital Services Act (DSA), a new legislation to report and moderate harmful content from online social networks. Trusted flaggers are mandated to identify harmful content, which platforms must remove within a set delay (currently 24 h). Here, we analyze the likely effectiveness of EU-mandated mechanisms for regulating highly viral online content with short half-lives. We deploy self-exciting point processes to determine the relationship between theregulated moderation delay and the likely harm reduction achieved. We find that harm reduction is achievable for the most harmful content, even for fast-paced platforms such as Twitter. Our method estimates moderation effectiveness for a given platform and provides a rule of thumb for selecting content for investigation and flagging, managing flaggers’ workload. 

Social media platforms are the new town squares (1)—dematerialized, digital, and unregulated town squares. In 2022, Elon Musk acquired Twitter with the stated goal of preserving free speech for the future. However, alongside free speech, harmful content disseminates and prospers in this unregulated space: mis- and disinformation that spreads faster than its debunking (2), social bots that infiltrate political processes (3), hate speech against women, immigrants, and minorities (4) or viral challenges that put teens’ lives at risk. In response, there have been calls for the governments to intervene and regulate. As the first move of its kind, the European Council introduced the Digital Services Act (DSA) and the Digital Markets Act (DMA) (5), EU legislation aimed at projecting the regulations of our offline world onto the digital one. It implements notice and action mechanisms (cf. Art. 16) to report harmful online content. Furthermore, the regulation introduces a process for appointing trusted flaggers, subject matter experts in detecting harmful content (cf. Art. 22). Once such content is flagged, platforms must promptly remove the content. However, online content is notorious for its “virality”—it spreads at high speeds and has short lifespans. Therefore, we ask about the effectiveness of this new legislation: how to quantify the likely harm caused by harmful content and how to determine the response time for effective mitigation? 

In this work, we leverage state-of-the-art information spread modeling to assess the effectiveness of the DSA regulation and the EU code of conduct for countering harmful online speech. Fig. 1 conceptualizes an online discussion, where each post (or) draws more people into the discussion and generates more posts, referred to as offspring. This phenomenon of content spreading is known as the self-exciting property. A harmful post() will therefore generate potentially other harmful posts (and) with a decreasing intensity, shown by the red dashed line on the Bottom panel of Fig. 1. How would the new EU legislation potentially stop the propagation of the harm? The core concept is to limit harmful posts’ reach and the offspring generation. We denote the number of harmful, direct offspring as the potential harm—denoted asn∗ and comparable in meaning to R0,the basic reproduction number of infectious diseases (6). Content moderation is achieved by removing the harmful post () at time Δ after posting and thus stemming offspring generation after this time (). In addition, we assume that any harmful direct offspring generated before Δ() are also moderated; their number defines the actual harm—labeled as n∗Δ. The harm reduction휒is the percentage of all harmful offspring avoided, both direct and indirect—i.e., offspring of the offspring generated via the recurrent branchingprocess. 

The effect of the policy heavily depends on the speed at which the discussionsunfold on social networks. We quantify this using thecontent half-life, defined as thetime required to generate half of the direct offspring. A recent (as of 2023) empirical investigation (7) determined the half-life of social media posts on different platforms:Twitter (24 min), Facebook (105 min), Instagram (20 h), LinkedIn (24 h), YouTube(8.8 d), and Pinterest (3.75 mo). A lower half-life means that most harm happens right after the content is posted, and content moderation needs to be performed quickly to be effective.

Relevance

Nice snappy articulation of 'relevance' in R v BELL (No 6) [2023] SADC 112 

 The law of relevance 

[42] Relevance is a question of law. It is most simply encapsulated in two long-cited propositions: None but facts having rational probative value are admissible; and All facts having rational probative value are admissible, unless some specific rule forbids. 

[43] A fact is relevant if it tends to directly or indirectly prove or disprove a fact in issue or to prove some relevant fact. It will be relevant where the evidence to be called relates to that other fact in a way that, according to the ordinary course of events, either by itself or in connection with other facts, proves or makes probable the past, present or future existence or non-existence of that other fact. 

[44] ‘Facts in issue’ are what the High Court has described as either ‘main facts in issue’ which are generally those that must be established to secure a conviction, establish a cause of action, or to enable some defence or answer to a case to be made out, or ‘subordinate or collateral facts in issue’ which might affect matters such as the credibility of a witness or the admissibility of particular items of evidence. Relevance will be assessed by reference to not only the elements of the offences charged, but also to the subsidiary issues that arise in relation to facts that may be probative of those ultimate issues. Importantly, these subsidiary issues may extend to matters that are necessary to contextualise and explain matters that a jury must consider and determine, including the credibility of witnesses. 

[45] Evidence will also be relevant if it provides an explanatory framework for other evidence; for example, if it may explain a statement or an event that would otherwise appear curious or unlikely; it may cut down, or reinforce, the plausibility of something a witness has said; or it may provide a context that is helpful or necessary for an understanding of the narrative. 

[46] Relevance must obviously be assessed with reference to the issues at trial, the purpose of the tender, and the state of the other evidence in the trial. 

[47] In cases involving circumstantial evidence, relevance must be resolved by reference to the whole of the evidence in the case. 

[48] The law recognises that particularly where, as here, the trial is by jury and consequently the Court is being asked to rule on questions of relevance prior to the commencement of the jury trial, and consequently before all the issues that may become relevant in the trial become apparent, it is undesirable and unnecessary to set the hurdle of relevance too high.

Comparative IP Law

'Everything You Want: The Paradox of Customized Intellectual Property Regimes' by Derek E Bambauer in  Berkeley Technology Law Journal,(Forthcoming)  comments 

Special interest groups share a dream: enacting legislation customized for, and hopefully drafted by, their industry. Customized rules created via legislative capture, though, are the worst case scenario from a public choice perspective: they enable narrow interests to capture rents without generating sufficient societal benefits. American intellectual property law offers useful case studies in legislative capture: special interests have created their own rules three times in the past forty years with the Semiconductor Chip Protection Act, Audio Home Recording Act, and Vessel Hull Design Protection Act. Paradoxically, though, these customized IP systems have consistently disappointed their drafters: all three of these systems lie in desuetude. This result challenges the conventional wisdom about regulatory capture by special interests, suggesting there is less to fear from legislative capture than most legal scholars believe, in intellectual property and beyond. The puzzle is why, when given free rein to design the rules that govern them, interest groups have done such a poor job in seizing that advantage. 

 

This Article brings together two scholarly debates. The first is within intellectual property: should IP doctrines be tailored by industry or comprise rules of general application? The second is within public choice: how risky is regulatory capture by special interests? 

 

The Article identifies two key reasons for the ineffectiveness of customized regimes. First, industry groups are fragile, fractal-like coalitions of disparate interests that often fracture between creators and copyists. Groups must choose between narrower, more politically attainable legislation and broader, more rewarding proposals that strain the coalition. Second, interest groups embed current business models and technologies into these systems, making regulation vulnerable to disruptive innovation. It explores how these findings affect proposals for customized regimes for artificial intelligence, weather data, traditional knowledge, privacy, and fashion. The Article concludes with a cautionary tale for interest groups that is otherwise welcome news: customized regimes are often less effective, and less threatening, than previously supposed.

Pharmaceuticals

'Off-Label Speech' by David A. Simon in (2023) 72 Emory Law Journal 549 comments 

This Article argues that the Food and Drug Administration (“FDA”) should regulate drug manufacturer speech about off-label uses based on the evidentiary support for the relevant use. The more evidence that an off-label use is safe and effective, the less restrictive the regulation should be. The less evidence that an off-label use is safe and effective, the more restrictive the regulation should be. Although intuitive, this is not exactly how current regulation of off-label information works. If the FDA approves a drug, the manufacturer can advertise to doctors and patients for the approved indication. Drug manufacturers cannot, however, promote or provide information about an approved drug for an unapproved use—so-called “off-label” use—unless they fall within two narrow safe harbors. Yet many off-label uses are just as safe and effective as on-label (approved) ones. Other off-label uses are supported by quality clinical trial data even though they are not approved. 

While the FDA recognizes that not all off-label uses are equally (un)supported by the same level of evidence, it has faced legal and practical challenges regulating information about them in a nuanced way. Courts have held unconstitutional the FDA’s regulations purporting to ban promotional off-label speech by drug manufacturers. And the safe harbors it has constructed are too shallow for much useful speech. To address these challenges, this Article proposes a new approach: working collaboratively with the Centers for Medicare and Medicaid Services, the FDA can use drug compendia—which identify, evaluate, and rate off-label uses—to create a graded system for regulating how drug manufacturers disseminate information about off-label uses that links informational restrictions to the level of evidence supporting the disseminated use. Not only does this system enable a flexible and evidence-based regulatory regime, it also can be easily designed to survive constitutional scrutiny. ... 

Doctors need information about drugs. And drug companies are ready to give it to them. When the information concerns a use of a drug the Food and Drug Administration (“FDA”) approved, drug companies can promote their approved drugs to physicians. Drug companies that want to provide information to physicians about an unapproved use of an approved drug, on the other hand, cannot do so except in limited circumstances. 

There are two reasons why. The first is that unapproved uses of approved drugs—so-called off-label uses—often pose greater risks, both physically and monetarily, to patients than approved, on-label uses. Because the FDA has not vetted unapproved uses, they may lack the evidentiary support enjoyed by their on-label counterparts. When drug companies promote off-label uses, they increase the probability that a physician will prescribe a drug off-label—and, hence, increase the risk that the patient suffers harm from the unapproved use. 

The second is that promoting off-label uses undermines the FDA approval process. Currently, a primary function of FDA approval is to incentivize firms to generate and disclose clinical trial data about a drug’s safety and efficacy. If companies can promote drugs off-label once a drug is approved, they have little incentive to conduct clinical trials to obtain approval for off-label uses. Rather than spend large sums of money to conduct clinical trials for an uncertain result (an FDA approval determining a drug is safe and effective), drug companies can spend much smaller amounts for a sure thing (promote the off-label use and obtain additional sales regardless of safety/efficacy). 

Yet many off-label uses are necessary and appropriate.6 For some patients, they are the only available treatment; for others, they represent the medically accepted “standard of care.” Here, dissemination of off-label information can have positive, rather than negative, effects. By providing the physician information about a previously unknown treatment option, dissemination of off-label information increases the chance that a physician will prescribe a drug off- label to a patient who needs it. Limiting promotion of off-label uses, in this case, increases the risk that a physician will not prescribe a needed off-label treatment. 

In the FDA’s view, the risk of too much off-label information outweighs the risk of too little. Despite the FDA’s position that off-label drug promotion is illegal, however, courts have not been inclined to agree. Indeed, recent judicial decisions have called into question whether any prohibition on off-label promotion is constitutional. 

Responding to these judicial losses, the FDA has carved out safe harbors for manufacturer off-label speech. Unfortunately, these safe harbors are rather wooden and impractical. Drug manufacturers must provide an excessive amount of information in a format that is not useful to physicians. And there are few gradations on the kind, nature, and content of information drug manufacturers can provide if they fall within the safe harbors. All off-label uses that qualify for a safe harbor can be distributed in only the prescribed manner—a manner a physician is unlikely to find helpful. 

Both of these challenges—the practical and the legal—are fundamentally about the quality and kind of evidence that supports an off-label use. When there is weak or no evidence supporting an off-label use, the risks posed by dissemination of off-label information are high. Restrictions on speech in such cases are likely to be constitutional because manufacturer statements about potential off-label uses are unlikely to be supported by evidence. When strong evidence supports an off-label use, by contrast, the risks posed by dissemination of off-label information are low—and the risk of not disseminating enough information is high. Here, restrictions on off-label information dissemination are unlikely to be constitutional because manufacturer statements about potential off-label uses are likely to be supported by evidence. Put differently, restrictions on unsupported statements will be more likely to satisfy the constitutional test than will restrictions on supported statements. Since both the legal and practical challenges of off-label promotion relate directly to the evidence supporting off-label uses, this Article argues that the best way to address them is to tie informational restrictions of off-label uses directly to the evidence base for the disseminated use. Uses supported by strong evidence could be disseminated more than those supported by weak or no evidence. 

To tie dissemination to evidence, this Article argues that the FDA, working with the Centers for Medicare and Medicaid Services (“CMS”), should regulate and use drug compendia: privately produced, publicly regulated publications that collect, evaluate, organize, and rate information about drugs. In this system, off-label uses with higher evidentiary ratings can be disseminated more freely than those with low ratings. The graded approach allows for regulations with a tighter fit to evidence, which, in turn, enables a greater flexibility in information dissemination activities. Because regulations will be tied directly to vetted evidence, the FDA can increase the kind and nature of information dissemination it allows. At the same time, it can limit these activities sufficiently to preserve traditional incentives for FDA approval. 

Linking information dissemination to evidence using compendia also enables the FDA to develop and use a new tool: a simplified and uniform disclosure document that can be included in manufacturer communications to physicians about off-label uses. This form—an example of which appears in the Appendix—effectively communicates to physicians complete and relevant information about evidence supporting an off-label use. 

This approach not only solves the legal and practical problems with current regulation, but it also balances the two problems faced by public and private solutions posed by other scholars. Public-oriented solutions rely on a centralized authority, usually the FDA, to either conduct its own research or independently review evidence for off-label uses. Determinations about the evidence for a use could then inform decisions about whether promotional activities can occur. Because they fear promotional false positives—allowing promotion of uses that are not safe and effective—these proposals tend to overregulate at great expense, requiring significant government funding, gatekeeping, and administration. 

Private-oriented solutions, on the other hand, typically allow off-label dissemination once a private organization determines a particular use meets certain evidentiary requirements. Unlike their public-oriented counterparts, private-oriented proposals fear promotional false-negatives: not allowing promotion of uses that are safe and effective. As a result, these solutions are cheaper but lack enforcement and underregulate the conflicts likely to arise in a private market. 

Using drug compendia to link information dissemination to the evidence supporting the disseminated use marries the best of both solutions—leveraging the efficiency benefits of private-oriented solutions with the oversight function of public-oriented ones. Because compendia are privately run, they have low administrative costs. But they are also subject to public regulation by the FDA and the CMS, which ensure that the process by which they evaluate and rate off- label uses is unbiased, reliable, and transparent. To the extent that promotional false positives and negatives exist, they will result from bad evidence, not bad regulation. In short, using compendia to regulate dissemination of off-label promotion is likely to be cheaper than most public-oriented solutions and more effective than most private-oriented ones. 

Compendia, though, have their own set of problems. Central among them are opacity, bias, and unreliability. Because these are significant problems, this Article does not propose using compendia in their current form. Instead, the FDA—working with the CMS—should regulate compendia directly and indirectly. Direct regulation specifies conditions, which, if met, would entitle a compendium to “recognized” status under current law. This includes uniform systems of (1) identifying, evaluating, and grading evidence; (2) identifying, evaluating, and acting on conflicts of interest and bias; and (3) publishing all information about (1) and (2). It could also entail additional compliance mechanisms that do not currently exist, including a requirement that compendia apply to “renew” their recognized status periodically and the audit or inspection of compendia by the CMS and/or the FDA. Because the CMS already has the statutory authority to regulate compendia this way—and because compendia are in need of reform—this aspect of the proposal is both practical and desirable. 

Direct regulation, however, is not sufficient to link promotion to evidence. To do so, the FDA must regulate compendia indirectly. Currently the CMS indirectly regulates compendia by specifying what evidentiary ratings are sufficient to guarantee reimbursement. This Article proposes that the FDA do the same for purposes of information dissemination of off-label uses: it should specify the level of permissible information dissemination by reference to the evidence grade assigned for the disseminated use. Under this system, uses assigned high evidentiary grades could be disseminated with fewer restrictions than those assigned low evidentiary grades. Because compendia will not produce uniform assessments of evidence, this also gives the FDA flexibility in how it interprets the evidence base for a given use. 

This Article proceeds as follows. Part I explains the current framework for regulating manufacturer speech about off-label uses. It highlights how the FDA’s current approach to off-label information faces serious practical and legal challenges. It then argues that the best method for overcoming both of these obstacles is to link information regulation of off-label uses to the evidence supporting the use in question by relying on drug compendia. Part II explains drug compendia and their current weaknesses. Part III then reviews five different methods for using drug compendia to link the level of off-label information dissemination to the evidence base supporting that use. It argues that while drug compendia can provide this linkage, they need to be regulated more closely to do so effectively. After describing the proper nature and scope of this additional regulation, this Article illustrates how this proposal could work in practice using three examples.

Norfolk

In Australia and New Zealand Banking Group Limited v Evans [2023] NSWSC 1018 - one of many judgments regarding loan recovery of funding of Evans' farm - the NSWSC considered pseudo law identity and jurisdiction claims

[7]At the commencement of the hearing “Tony” announced his appearance, insisting that he not be referred to by the name Anthony Evans. He explained that Anthony Evans was an entity defined in the Taxation Administration Act 1953 (Cth); that he was a man, not an entity; and that he controlled the trust, Anthony William Evans referred to in the various pleadings and motions, and that he did not recognise that name as referring to him. 

[8] If he was not Anthony William Evans, Tony, of course, had no right to appear in the proceedings, not being a party to them. 

[9] But it emerged that it was Tony who had used the name Anthony William Evans when he swore an affidavit in support of one of the motions filed by Anthony William Evans, before a justice of the peace. In the result I was satisfied that Tony was Anthony William Evans, the name he had used not only when he and Mrs Evans borrowed from the Bank and entered various agreements with it, but also later when filing documents in these proceedings, including the defence, cross-claim and the motions which Tony appeared to advance. ... 

[37] Despite his abandonment of the hearing , the case which Tony advanced in the various documents in evidence and his oral submissions have to be considered. They were somewhat difficult to follow, resting as they did on notions such as the location of Norfolk Island, out of which he claimed the Court operates, because “You people moved off shore in 1973”. 

[38] The result was claimed to be that it has no jurisdiction to take the land which he claims has been in his family since 1875. At one point he said that it was located in a colony of New South Wales. Later, however, he submitted that it was not in New South Wales, which was a corporate state, which had nothing to do with the land he lived on. 

[39] Tony also claimed at the hearing that the matter was a tax matter only, given s 55 of the Constitution; that a tax treaty was the highest law that governed him; that I was “an international servant in the international monetary fund”; and that all the other “nonsense” on which the Bank relied was null and void.

Nudges and Influence Policing

The report by Ben Collier, James Stewart, Shane Horgan, Lydia Wilson and Daniel R. Thomas on Influence Policing: Strategic communications, digital nudges, and behaviour change marketing in Scottish and UK preventative policing states 

Influence policing is an emerging phenomenon: the use of digital targeted ‘nudge’ communications campaigns by police forces and law enforcement agencies to directly achieve strategic policing outcomes. While scholarship, civil society, and journalism have focused on political influence and targeting (often by malicious actors), there has been next to no research on the use of these influence techniques and technologies by governments for preventative law enforcement. With grant funding from SIPR and support from The Scottish Centre for Crime and Justice Research (SCCJR), we have studied how this novel mode of police practice is developing through an in-depth study of Police Scotland’s strategic communications unit and a wider systematic overview of these campaigns across the UK. 

Key findings: Police Scotland 

1. Since 2018, Police Scotland has had a dedicated team devoted to strategic communications marketing campaigns - developing methods for crime prevention through communications. These adapt classic forms of ‘strategic communications’ and ‘social marketing’ to incorporate novel techniques and tools, tailoring them to crime prevention - particularly the use of behaviour change theory and digital targeting and segmentation infrastructures 

2. These influence (including ‘nudge’) communications go beyond ‘information’ campaigns or those which simply tell or ask the public to do something, and instead incorporate psychological design elements which attempt to alter the decision environment in which members of the public make choices about their behaviour - often linking up with other interventions such as the redesign of public services. 

3. In a wider policing context, these innovations can be understood as a development of problem-oriented and intelligence-led policing models in a digital context 

4. The campaigns - focusing on areas with a perceived ‘online’ component, such as violence against women and girls, online grooming, and hate crime - are conceived as part of a public health prevention approach, often using perpetrator-focused adverts to deliver messages to those profiled as ‘at risk’ of offending. This is part of a move away from campaigns which simply rely on telling the public what to do, or which focus on putting the responsibility for crime prevention on victims. 

5. There are two main elements to campaigns - the first are attempts to directly change people’s behaviour through ‘nudge’ communications, and the second are wider attempts to shape the cultural narratives that are perceived to contribute to crime.

6. In Scotland, digital targeting is mostly used at the broad demographic level (i.e. age and gender), although some use of fine-detail location and interest- based targeting is evident. 

7. Online targeted paid advertising is used in conjunction with conventional media buying, and organic and ‘earned’ communication with stakeholders and civil society partners. 

8. Campaigns are largely developed in house, but the media buying and some campaign development is done with commercial advertising and marketing partners. Civil Society stakeholders play a key role in consultation and development of campaigns, and in the ‘organic’ promotion. 

9. The digital platforms themselves play a major role in shaping what is possible, sometimes redirecting the intervention through algorithmic processes or promoting organic sharing. 

10. Evaluation of the campaigns is able to use some outcome measures but also still relies heavily on ‘vanity’ metrics (such as apparent views and click- throughs) provided by the platforms - and effects are difficult to measure. 

11. The use of influencers (usually well-known public figures) in some campaigns to amplify messages is a clear innovation - though raises some concerns. These influencers have legitimacy with and knowledge of targeted communities, and generally retain their audiences across multiple platforms (even when these platforms change or fail). 

12. We suggest the term Influence officers to describe the professional police communications specialists who design and develop these campaigns, who represent a growing new role in ‘frontline’ policing. 

13. The centralised unit and single national force structure in Scotland has had some positive effects when compared to English forces, providing mechanisms for accountability (and saying ‘no’ to unsuitable or harmful campaigns) where more formal structures don’t yet exist. However, this is reliant on the tacit knowledge and expertise of a small group of practitioners - and some aspects of this approach would benefit from being on a more formal institutional footing. 

14. Despite its proliferation across the UK, this is a distinctively Scottish mode of ‘influence policing’ and the ‘influence officer’ as a possible emerging role within policing. 

Key findings: law enforcement and security in the wider United Kingdom 

1. The use of targeted digital influence, or behaviour change, campaigns is widespread across UK law enforcement, but there is enormous variation in models, practices, theories, and institutional relationships between different forces and agencies; this often looks very different to how things are done in Scotland. 

2. Within an extremely diverse range of practices, we identify six broad models underpinning these campaigns: based respectively on choice, risk, co- ordination, community, opportunity, and territory.  

3. Campaigns are run by many different kinds of law enforcement bodies and their partners - including local divisions and forces, centralised agencies, government departments, security services, charity partners, local PCCs, and others. 

4. There is a major focus on violence prevention (often through local VRUs), counter-radicalisation, and security themes. More recent campaigns include action around online harms and there has been a large increase in communications prevention activity around violence against women and girls in the last two years; though topics vary extremely widely in line with local police strategic priorities. 

5. Targeting ranges from the very broad (all men in Manchester, or all people in England) to the hyper-specific, incorporating interests, behaviours, and very detailed location data (combining MOSAIC marketing, Census data and police intelligence with social media platform profiling techniques). Police are able to develop ‘patchwork profiles’ built up of multiple categories provided by ad platforms and detailed location-based categories using the platform targeting categories to reach extremely specific groups. 

6. Paradoxically, as platforms have refined or in some cases removed the ability to target people by ethnicity and religion directly, this appears to have caused many law enforcement actors to adapt by adopting extremely invasive targeting via proxies for these protected characteristics, such as low-level postcode location data or microtargeting via interests and behaviours. 

7. We have found evidence of some unethical and harmful practices in particular areas - most notably, the invasive targeting of extremely vulnerable refugees by the Home Office. More generally, we see the repeated use of language, interest and fine-detail location as proxies to access protected characteristics, such as ethnicity and sexual orientation. There is some particularly troubling and invasive targeting of Muslim and Black communities. The ethics of targeting are extremely complex, and law enforcement and public sector campaigns add a new dimension to these issues. Paradoxically, as platforms have refined or in some cases removed the ability to target people by ethnicity and religion directly, this appears to have caused many law enforcement actors to adapt by adopting extremely invasive targeting via proxies for these protected characteristics, such as low-level postcode location data or microtargeting via interests and behaviours.

8. The different forms this takes are clearly shaped by local strategic priorities, wider political environments, and the operational history of particular forces and agencies - particularly where there is a history of significant counter-terror activity and counter-radicalisation work. 

9. Commercial marketing and advertising partners are promoting their expertise to forces, and work as contractors in development and media buying. 

10. Some forces are being ‘left behind’ and doing essentially no strategic marketing - in these areas, much is being done by PCCs, charities, NGOs, delivery partners, charities, and other non-police actors, including national agencies 

11. There is generally more emphasis on ‘hotspots’ and predictive policing approaches (often under risk or opportunity models) in England, with nudge communications offering a ‘smart policing’ complement to operational deployments. 

12. There appears to be little central oversight at the bureaucratic or political level, and the legal and political position of these approaches is unclear - campaigns are often visible but the targeting is hidden. Some centralised agencies (e.g. the NCA) are much more developed in terms of accountability, legal case, proportionality, and ethics 

13. Emerging platform Ad Libraries of political and social campaigns, particularly that of Meta, are making the use and reach of public sector advertising more transparent. We note that this has resulted in the platforms potentially revealing information intended by government agencies to be kept secret. 

14. The strategic priorities of the Government Communications Service (GCS), including innovative use of new technology, sharing of audience data, professionalisation, and partnership working can draw directly on developments within policing in the UK, but also needs to support and reinforce the unique requirements of policing and the particularly sensitive nature of the social issues addressed in police communications 

Outline and recommendations 

The spread of this approach shows the clear (if still embryonic) emergence of a novel mode of operational policing (influence policing) - and a new kind of ‘frontline’ police sub-profession (the influence officer). Police communications officers are attempting to shape the culture and the behaviour of the public directly through behavioural marketing campaigns in order to achieve core strategic priorities around crime prevention. The digital tools provided by social media platforms allow them to find specific groups that are harder to reach - to project power and stake ownership of crime problems and online harms in digital spaces in which the police presence has struggled to establish itself. 

We begin with an overview of the current landscape of digital communications, setting out the history and context of Police Scotland’s use of strategic communications approaches. We then discuss our study design and methods. This empirical section of this study is split into three sub-reports. The first of these is a study of Police Scotland’s strategic communications team, involving interviews and document-based research. The second is a review of four case studies of campaigns run by law enforcement in Scotland, based on analysis of key campaign documents. The third report extends the scope to all law enforcement digital campaigns run in the UK on Meta platforms, and is accompanied by a dataset of 12,000 campaign segments, how they were targeted, and audience data. We then discuss our key findings across the research project. In our final chapter, we give a set of key conclusions and recommendations. Based on our research, we make a number of recommendations within the following five key areas. Our detailed recommendations can be found in Chapter 7 of the report. 

Recommendation 1: Transparency 

There is a clear need for improved transparency around the use of digital targeting for strategic communications campaigns by law enforcement; we recommend the creation of a public register of digital campaigns and the targeting approaches used. 

Recommendation 2: Formalising regulation and oversight 

While some areas of good practice are emerging, there is little consistency between different forces and agencies, and no formal regulation within law enforcement other than that used for traditional communications. Much of the good and ethical practice is reliant on ‘load-bearing’ experts and their professional experience, and there are numerous examples of unethical practice in the wider UK. We recommend the formalisation of law-enforcement-specific best practices and accountability frameworks that recognise the unique environment of law enforcement, and the additional capacities and risks of these approaches compared to traditional communications. 

Recommendation 3: Improving monitoring and evaluation 

Although some campaigns appear to have promising pro-social results, evaluation is extremely difficult and based largely on ‘vanity’ metrics provided by the platforms. Significant additional investment is required for monitoring and evaluation, especially to assess the potential for unintended consequences and ‘blowback’. 

Recommendation 4: Co-production and consent 

The emerging Police Scotland model contains many distinctively ‘Scottish’ aspects, particularly an emphasis on partner engagement and some examples of fully co-produced campaigns. We recommend the further development of democratic and deliberative involvement of the public - especially targeted communities - in the development of campaigns. 

Recommendation 5: Public awareness and engagement with political actors/civil society 

There is still little public knowledge (including among politicians, policymakers, and law enforcement themselves) of the use of digital targeted influence campaigns for preventative law enforcement. This needs to be part of a wider public discussion of these approaches. Further, these approaches are becoming a core part of law enforcement reactions to ‘online’ or ‘emerging’ harms - and need to be systematically considered and explicitly set out in strategy and law relating to online harms, including the potential harms and risks which they themselves may pose. 

Further Research 

This report covers an initial overview of the use of strategic communications in the UK, with a particular focus on Scotland. However, several key questions remain unanswered or only partly-understood; substantial additional research is needed into this important emerging phenomenon. Further research is needed into how law enforcement practitioners across the UK (and across a range of policy areas) are adapting these communications techniques for preventative law enforcement. The role of private sector consultancies across this landscape is a crucial aspect of this developing set of practices; we also have little understanding of how the platforms and social media sites - Facebook, Twitter, Google, and others - are adapting to these new use cases. Complementing this research, there is a need for a better appraisal of how these campaigns are being experienced by the public (especially communities that are heavily targeted).

Regulation

'Regulatory Issues of Data and Algorithms for the Data-Driven Economy' by Kung-Chung Liu in (2023) GRUR International comments 

Data and algorithms are the lifeblood of the data-driven economy. Big data and big algo are bringing new challenges and legal issues to the fore. This article deals with some aspects of these issues and tries to put forward an analytical framework for typifying, securing access to and use of data, and ultimately maximizing the generation and flow of data. This article then deals with algorithms and endeavours to propose six principles for auditing algorithms and a brand new international governance framework for algorithms and their auditing via a treaty and relevant mechanisms. ... 

With the ubiquitous take-up of digital technology and the digitization of products, services, and business processes, we find ourselves in a data-driven economy whose two pillars are data and algorithms. Data and especially big data generated and collected by netizens and machines (devices) connected via the internet of things (IoT) are essential elements of the development of new products or services, business models and competition. Another even more important pillar of the data-driven economy is algorithms, as they decide the collection, compilation and analysis of data, and shape the final decision-making of artificial intelligence (AI). Controversies are on the rise about algorithms being biased or even designed to distort competition and harm consumers, whether algorithm-driven market interactions call traditional economic models of competition law into question (explicit versus tacit collusion1), and whether and how new regulations for algorithms must be developed. How can we best regulate data and algorithms to boost the data-driven economy? How can we overcome the intellectual property (IP) hurdles, copyright and trade secrets in particular, of data and algorithms that might hinder the data-driven economy? 

This article is dedicated to the clarification of some of the regulatory issues of data and algorithms ‒ no solution can be offered as it is not targeted at one specific national legal regime – with the concerns for the data-driven economy. It will first focus on data by discussing its typology (identifying three types of data), protection, access and use. The second focal point of this article deals with algorithms and their auditing, and endeavours to propose six principles for auditing algorithms and a new treaty and mechanisms to tackle these issues from the perspectives of global governance.

Consent

'Murky Consent: An Approach to the Fictions of Consent in Privacy Law' by Daniel J Solove in (2023) 104 Boston University Law Review (Forthcoming) comments 

Consent plays a profound role in nearly all privacy laws. As Professor Heidi Hurd aptly said, consent works “moral magic” – it transforms things that would be illegal and immoral into lawful and legitimate activities. Regarding privacy, consent authorizes and legitimizes a wide range of data collection and processing. 

 

There are generally two approaches to consent in privacy law. In the United States, the notice-and-choice approach predominates, where organizations post a notice of their privacy practices and then people are deemed to have consented if they continue to do business with the organization or fail to opt out. In the European Union, the General Data Protection Regulation (GDPR) uses the express consent approach, where people must voluntarily and affirmatively consent. 

 

Both approaches fail. The evidence of actual consent is non-existent under the notice-and-choice approach. Individuals are often pressured or manipulated, undermining the validity of their consent. The express consent approach also suffers from these problems – people are ill-equipped to make decisions about their privacy, and even experts cannot fully understand what algorithms will do with personal data. Express consent also is highly impractical; it inundates individuals with consent requests from thousands of organizations. Express consent cannot scale. 

 

In this Article, I contend that in most circumstances, privacy consent is fictitious. Privacy law should take a new approach to consent that I call “murky consent.” Traditionally, consent has been binary – an on/off switch – but murky consent exists in the shadowy middle ground between full consent and no consent. Murky consent embraces the fact that consent in privacy is largely a set of fictions and is at best highly dubious. 

 

Abandoning consent entirely in most situations involving privacy would involve the government making most decisions regarding personal data. But this approach would be problematic, as it would involve extensive government control and micromanaging, and it would curtail people’s autonomy. The law should allow space for people’s autonomy over their decisions, even when those decisions are deeply flawed. The law should thus strive to reach a middle ground, providing a sandbox for free play but with strong guardrails to protect against harms. 

 

Because it conceptualizes consent as mostly fictional, murky consent recognizes its lack of legitimacy. To return to Hurd’s analogy, murky consent is consent without magic. Instead of providing extensive legitimacy and power, murky consent should authorize only a very restricted and weak license to use data. This would allow for a degree of individual autonomy but with powerful guardrails to limit exploitative and harmful behavior by the organizations collecting and using personal data. In the Article, I propose some key guardrails to use with murky consent. 

Zombies and Lexomancy

The Weapons Prohibition Act 1998 (NSW) provides under '7 Offence of unauthorised possession or use of prohibited weapon': 

 (1) A person must not possess or use a prohibited weapon unless the person is authorised to do so by a permit. Maximum penalty—imprisonment for 14 years.

A 'prohibited weapon means anything described in Schedule 1' . 

Schedule 1(8) refers to

A zombie knife or other device that has a multi-edged blade, including a serrated section of blade, and— (a) is advertised or otherwise made available for sale using images or words that suggest the knife or device is intended to be used for violence, whether actual or threatened, against a person or fictional creature (such as a zombie), or (b) has, on the blade or handle, images, words or markings that suggest the knife or device is intended to be used for violence, whether actual or threatened, against a person or fictional creature (such as a zombie), or has been used to inflict violence. 

There is reference the weapon in R v Ford [2023] NSWDC 86, NSW Land and Housing Corporation v Traynor [2021] NSWCATAP 383, James v NSW Land and Housing Corporation [2020] NSWCATAP 64, R v Richards [2021] NSWDC 603 and other reports. 

In R v Bagnall [2021] NSWDC 738 the Court states 

In the offender’s right rear jeans pocket, police located a spring-loaded wooden handled flick knife. A flick knife is a prohibited weapon under Schedule 1 of the Weapons Prohibition Act 1988. (I note that in terms of the items covered under Sch 1 that a flick knife, in my view, falls towards the lower end of seriousness. Schedule 1 contains such items as a push dagger, a trench knife, which is a knife which has knuckledusters over the handle, what is referred to as a zombie knife, but also bombs, grenades, rockets, missiles, and mines, slingshots, blowguns or blow darts, flamethrowers, and Taser guns, as well as items with concealable blades, such as walking sticks, or a Bowen knife belt. In my view, a flick knife is towards the lower end of seriousness in terms of the prohibited weapons listed in Sch 1).

'Lexomancy: law and magic in the pseudolegal writings of the sovereign citizen movement' is a doctoral dissertation by David Griffin (Cardiff, 2022): 

 The Sovereign Citizen movement is a loosely organized collection of anti-government conspiracy theorists found around the world. According to their pseudolegal theories, Sovereign Citizens believe that through the filing of certain forms and the raising of certain arguments in court, they can force the legal system and its representatives to do (or not do) anything they desire, including give them access to secret government funds or dismiss criminal charges against them. Though there are clear similarities between the documents that Sovereign Citizens submit to courts and those submitted by actual attorneys, Sovereign Citizen documents often contain features that are completely out of place in standard legal discourse, including the use of thumbprints as seals and atypical formatting when writing personal names (e.g. “first-middle;last”). With its focus on American Sovereign Citizens and the specific legal documents that they are imitating, this thesis is the first thorough linguistic examination of the relationship between the Sovereign Citizen pseudolegal courtroom filing (“PCF”) and legitimate courtroom filing (“LCF”) genres. The PCF genre, it is proposed, is best understood as a “parasitic” genre preying upon its “host,” the LCF genre. By incorporating aspects of LCFs into their own writings, the authors of PCFs hope to imbue them with the authority of the legitimate legal system. In this way, PCFs can also be understood as instances of imitative magical practice and their more distinctive elements as the magical “heightening” of features which their authors view as particularly emblematic of legitimate legal authority. Because the comparison of the PCF and LCF genres requires a greater understanding of the natute of legal language than currently exists in the literature, this thesis also makes a significant new contribution to the linguistic knowledge of the register of legal English. It is hoped that an increased understanding of the nature of Sovereign Citizen pseudolegal discourse will help representatives of the legal system understand and combat the spread of the Sovereign Citizen movement and related conspiracy theories.

Health Capability Review

The Australian Public Service Commission 'Capability Review of the Department of Health and Aged Care' notes that 

In 2023–24, the department will administer 20 programs across 4 outcomes. Administered funding totals $103.3 billion, mainly payments for personal benefits of $65.1 billion (63% of the total), including those for medical services, pharmaceutical services, and private health insurance rebates. Subsidies, predominantly for aged care, amount to $20.9 billion (20% of the total). Grants expenditure is expected to be $14.0 billion (14% of the total), most paid to not-for-profit organisations. The department also provides shared services to 17 portfolio agencies. 

More than 5,800 people work at the department in 8 different worksites around Australia. Roles span 17 job families including: policy; project and program management; regulation and compliance; science and engineering; data, research and analysis; administration and information and communication technology. The department has been increasing its representation across Australia – at the end of April 2023, 22% of the department’s APS staff worked outside Canberra from offices in all capital cities and some regional locations. ... 

The most critical challenges were identified as the following:

• Meeting the challenge of growing demand for aged care with an ageing population, while making the improvements in quality recommended by the Aged Care Royal Commission. The challenge is further compounded by increasing workforce shortages, considering disability care and other social care workforces also face shortages, and the interface between the aged care system and the hospital system. An integrated policy solution that considers the broader system dynamics will be needed to deal with this challenge. 

• Addressing the challenges across the health workforce – particularly primary care and in rural settings. This is unlikely to be resolved simply by increasing numbers, given the declining percentage of medical graduates wanting to work in primary care. It will require rethinking and changing the roles played by the different elements of the health workforce including allied health. 

• Addressing the growing cost of hospital care, which is a large and growing share of state budgets. Addressing this will require collaboration between the Australian, state and territory governments to optimise the use of hospitals and primary care. 

• Increasing the focus on preventive health care. It is possible to prevent many chronic conditions from developing, or to reduce their impact, by creating systems and environments that support people to live a healthy lifestyle. This is important given the growing cost of acute care, the need to address inequities between different population groups and the need to improve the sustainability of the health system. 

• Being on the front foot in terms of opportunities in the rise of personalised medicine, mRNA technology, digital technologies, the promise of artificial intelligence and the revolution in genomics, while being mindful of the significant cost implications. 

• Preparing for global mega-trends, such as those outlined by the CSIRO report, Our Future World, including adapting to climate change and the expectation of increased unprecedented weather events; supply chain disruptions; geopolitical shifts characterised by disrupted patterns of global trade, geopolitical tensions and growing investment in defence; and a strong consumer and citizen push for decision makers to consider trust, transparency, fairness and environmental and social governance 

• Managing the continued shift in the mix from acute care to chronic disease management, particularly as the population ages. 

• Being prepared for the next pandemic, which may be worse than COVID-19, and ensuring the department is ‘battle ready’.

The APSC's appraisal is unduly positive, quuoting endorsements by unidentified stakeholders but erasing substantive criticism of for example the TGA. 

 The Review articulates '9 priority areas for capability improvement':

 Integrated strategic policy development capabilities 

A core challenge for Australian society over the next 4 years is providing effective and affordable health and aged care. An ageing population, more chronic rather than acute diseases and growing mental health challenges are set against increasing workforce shortages across the health, aged and disability sectors. This is creating significant challenges for access to quality affordable care. Meanwhile great strides in medical technology are creating significant opportunities for improved health outcomes. 

Continuous improvement is not going to provide sufficient solutions for these challenges. Over the next 4-plus years, significant reform is needed across the health and aged care sectors, taking account of interactions between the sectors. For example, there is a clear need to move more patients from higher-cost acute and hospital settings into primary and community care or aged care settings. But that requires policy development to address the interactions across the whole health and aged care system. Such reforms will not be possible without collaboration between the Australian, state and territory governments. 

Nearly everyone this review spoke to expect the department to take a lead in providing a ‘direction of travel’ on major system reform of the health and aged care sectors, and to lead discussions about the detail of that reform. However, stakeholders from across the Australian Government and from outside the government told the review that the department has not been consistently playing a leading role here for many years. There have been notable exceptions, such as the department’s leadership of the National Medical Workforce Strategy, the Primary Care Reform Strategy and the reforms coming out of the Aged Care Royal Commission, but broad whole- of-system reform initiatives have been limited. In part this is because, despite strong policy capabilities in particular areas, there is lack of capability in integrated policy development addressing the interactions between the various parts of the health and aged care systems. The department is not seen to have put forward systemic reform options to government or lead this discussion with the states, territories and other stakeholders. 

This may be because previous ministers have not asked the department for this advice, and capability in this area may have declined. However, the department should maintain system reform policy capabilities regardless of the needs of the minister of the day. 

The department is implementing major reforms, including the response to the Aged Care Royal Commission and Strengthening Medicare Taskforce. But with Australian Government costs of more than $100 billion per year in the health system, more work is needed to integrate policy and on-the-ground delivery of these important commitments. 

This is an area that will require sustained focus and investment over the coming years. To embed such a capability, the department could commit to producing a periodic report on the current state of the health sector and future direction of travel, along the lines of Treasury’s intergenerational report. 

Using data to inform policy 

The review heard a range of views on the department’s data capabilities. While the department was broadly viewed as having highly capable data scientists and analysts, many stakeholders said this capability was not being fully used, in some cases through a lack of willingness to engage in risk. 

The department has used a mixed model for data analysis, relying on both in-house capability and specialist firms to complement its abilities in areas such as Medicare and pharmaceutical regulation and compliance. Through the pandemic, the department relied heavily on data consultants to assist in modelling pandemic outcomes, successfully supplementing its own capabilities. 

The review heard of close collaboration with both the Australian Bureau of Statistics and the Australian Institute of Health and Welfare on data tools and modelling to support long-term health and aged care policy analysis. We also heard that the department had invested in tools to allow policy analysts throughout the organisation to perform independent analysis of linked data sets. 

However, the use of data is not yet embedded throughout the department, and key program and delivery areas, such as the Primary Health Networks (PHN), do not yet have data-driven metrics to support performance monitoring, or to assist in future policy development and design. Looking forward, the department needs to empower policy makers at various levels to improve their understanding of the availability, flaws and possibilities of data sources plus an ability to pose answerable questions, and then to use the answers to frame policy proposals and options. This will enable staff to appropriately explain clearly and succinctly to ministers, advisors and other stakeholders. 

Systemic consideration of the health and aged care workforce 

A range of stakeholders told the review team that the department needs to take a greater national leadership role in coming years in health and aged care workforce policy, as this is one of the most pressing challenges across the sector and will remain so for many years to come. 

The health workforce is perhaps the largest input to the health and aged care system. It is used at all levels and in all settings of health and aged care service delivery. It can be put to uses with greater or lesser degrees of efficiency, quality and safety in health service delivery, depending on policy structures established at all levels of government and through private providers. The health workforce is trained, regulated and governed at clinical levels via all levels of government, the education sector and professional colleges. 

Health Workforce Australia previously provided national leadership in this area and, following its closure, the department has attempted, with variable success, to provide the comprehensive data collection, analysis and planning that Health Workforce Australia provided. Despite successes with the National Medical Workforce strategy, medical workforce data collection and early initiatives in the nursing workforce area, the review team has heard stakeholders seeking much greater leadership from the department to support:

• changed models of care, with greater reliance on team-based care 

• better models to prioritise where and how the clinical workforce is trained 

• models of care that account for a potential gap between supply and demand for health workers with greater use of lower skilled workers, greater use of technologies, or both.

Parts of the workforce can move between the primary, hospital, aged care and National Disability Insurance Scheme sectors, so it is difficult to develop policy for one sector without considering the implications for the other sectors. Current health and aged care workforce capabilities are scattered across the department, and it should consider how capabilities can best be organised to give integrated policy advice. 

Increased knowledge about the providers the department funds and regulates 

A common theme from many external stakeholders is that the department needs to develop a deeper commercial understanding of the providers it funds and regulates. 

These providers include hospitals, aged care homes, general practitioners, medical specialists and allied health practitioners. The knowledge required includes the economics of the businesses, the distribution curve of providers in terms of performance, and the impact of funding or regulatory changes on the sector. Without that knowledge, the department is seen by many to be susceptible to place too much weight on the loudest voices in discussions and negotiations, when they often represent the views of less sophisticated providers or practitioners rather than the average or more sophisticated providers. 

The department has access to much data and expertise about the economics of providers but many stakeholder discussions suggest it does not seem to be making full use of this data and expertise. 

Through effective use of data and access to expertise, the department should know the economics of the entities it funds or regulates at least as well as the entities themselves. 

Readiness for future healthcare delivery 

The rapid pace of technological change, including in areas such as personalised medicine, and the use of artificial intelligence in diagnosis and treatment for patients, will present a challenge for health system funders and regulators globally in coming years. The review team heard that it can be difficult to work across some divisional and group structures within the department, and that sometimes inflexible internal resourcing models don’t support meeting internal priorities. 

For example, the TGA’s cost recovery is more than 90% from industry. Having limited flexibility for non-cost recovery activities, including forward-looking work, means it is more constrained than most international peers. This is seen in in its ability for technical experts to scan the horizon for therapeutics regulation issues and support joined-up policy efforts that consider future health care delivery models that incorporate technological change. 

There are also opportunities to leverage existing and growing capabilities to better tackle future technology changes. We observe that the department has received significant funding to reform the way information in the aged care sector is collected and provided. The platform being developed for this purpose also has possible wider application in a range of other care markets funded and supported by the Commonwealth, such as veterans’ affairs and the National Disability Insurance Agency. 

Ensuring readiness for future models of health care service delivery and treatment requires concerted and ongoing effort to yield best results for the health system and, through it, improved health outcomes for the public. 

Learning the lessons from COVID-19 

The COVID-19 response has been a major focus of the department over the last 3 years. The department has been in the front line of both developing policy to respond to the pandemic and delivering many aspects of that response. The speed with which the department had to work has led to many innovations and taken the department into new areas of activity such as vaccine delivery. 

The department had to innovate in:

• the way it works with front line organisations such as Aboriginal Community Controlled Health Organisations with more flexible funding and less detailed accountability requirements  

• how it communicates with diverse communities to ensure messages about COVID-19 are getting through 

• the way areas work across the department and with other Commonwealth, state and territory agencies, as this had changed substantially to deal with the response.

There are important lessons from this experience about what has worked well, what hasn’t worked so well, and what should be done differently to be ready for the next pandemic.

However, there does not yet appear to have been any comprehensive review of lessons learned. The department is keen and prepared to undertake such a review. There is clearly the question of when the time is right for such a review, as COVID-19 is not totally gone, but if left too long, organisational memory will start to dissipate as people move to different roles and other priorities take over. To ensure the department fully extracts the lessons from the COVID-19 response, we think it is important that a thorough and significant review occurs ideally sometime in the next 12 months. 

Collaborative and enduring relationships with the states and territories 

Effective delivery of health and aged care to the community relies on the Commonwealth, states and territories, and the private and community sectors working together. Many stakeholders, not just the jurisdictions, raised the need for the department to work more closely and collaboratively and in a less ‘transactional’ way with state and territory counterparts. 

Jurisdictions and other stakeholders appear to be looking for a high-level, medium- and long-term policy discussion about the future of the health and aged care systems. Health care consumes around 40% of state budgets and current trajectories suggest it is rising over time. It is no surprise that the jurisdictions want a continuing, in-depth discussion with the department about the future of health and aged care. 

The review team notes the challenge for senior staff to find time, space and resources for content-rich, evidence- based engagement with jurisdictions. The authorising environment for such forward thinking waxes and wanes. However, as the level of government responsible for most health care financing and for health settings that require close integration with jurisdiction-based services, the department should lead a more open and less transactional engagement with the jurisdictions on health and hospital system design, and an enduring architecture to facilitate this. 

We note that the department has a team allocated to addressing these issues. We also recognise that reform discussions are often intertwined with requests for more funding, and that there are constraints on the department’s ability to fund reform. However, we do not think that this negates the need to create more collaborative relationships with the states and territories. 

Improved communication and engagement with the community 

During COVID-19, Australians relied on heath messages provided by senior department staff. Those senior staff were supported by an extensive communications and engagement effort across the department and into Australia’s multi-faceted community. Much was learnt and staff are proud of their efforts at a time of national and personal challenge. 

Improving communication and engagement with the community is an important area for departmental capability development. In the past, mass media campaigns were a key tool for the department to spread health messages. The experience with COVID-19 has highlighted shortcomings with this approach and pointed to the need for new thinking and new skills in the department. Many of those with complex (and potentially expensive) health and care needs do not receive information through traditional media. 

Indeed, the department needs to reach some people who distrust government and are wary of government messages urging them to participate in programs or use services. Communicating with such communities requires long-term engagement, detailed data and analytics, and a willingness to use influential community members backed by social media to provide information and receive feedback. 

Creating the capability to reach all parts of the Australian community will require a lift in the department’s approach to engagement with communities and their representative organisations, as well a more contemporary approach to communications. 

Building and empowering the mid-level of the department 

The review team often heard praise for the knowledge, commitment and ability of the department’s most senior staff (the executive and division heads). However, feedback on mid-level leaders (branch heads, directors and team leaders) was more mixed – with many stakeholders arguing that turnover in these levels created challenges for organisational engagement and potential for decisions to be escalated to higher levels when they could be managed more appropriately at lower levels. 

All Commonwealth departments face workforce challenges and we were not surprised to receive such feedback. The department has taken steps to address turnover and, through enhanced workforce planning, is supporting a leading work from home policy, improving working conditions in offices, and raising the profile and approachability of senior managers. However, there is still a lot of movement at the mid-level of the department, partly driven by many of the most talented staff moving frequently between roles. 

The department should invest in both the business systems and learning and development to support greater delegation to these levels. We heard there is latent capacity in these levels that will leave if left untapped. There is a wide palette of strategies to build the mid-level of the organisation while improving succession planning, particularly at the local level, and creating more stability and/or better handovers when mid-level managers move.