Age Verification

The national Government response to the 'Roadmap for Age Verification' developed by the eSafety Commissioner (eSafety) states 

The Roadmap acquits a key recommendation in the February 2020 House of Representatives Standing Committee on Social Policy and Legal Affairs (the Committee) report, Protecting the Age of Innocence (the report), which recommended that the Australian Government direct and adequately resource the eSafety Commissioner to expeditiously develop and publish a roadmap for the implementation of a regime of mandatory age verification for online pornographic material. The Government response to the report, released in June 2021, supported the recommendation and noted that the Roadmap would be based on ‘detailed research as to if and how a mandatory age verification mechanism or similar could practically be achieved in Australia’. 

The Roadmap makes a number of recommendations for Government, reflecting the multifaceted response needed to address the harms associated with Australian children accessing pornography. 

This Government response addresses these recommendations, sets out the Government’s response to this issue more broadly and outlines where work is already underway. This includes work being undertaken by eSafety under the Online Safety Act 2021, noting that since the Roadmap was first recommended in February 2020, the Australian Government has delivered major regulatory reform to our online safety framework with the passage of the Online Safety Bill on 23 July 2021 with bipartisan support, and the commencement of the Online Safety Act on 23 January 2022. The Online Safety Act sets out a world-leading framework comprising complaints-based schemes to respond to individual pieces of content, mechanisms to require increased transparency around industry’s efforts to support user safety, and mandatory and enforceable industry codes to establish a baseline for what the digital industry needs to do to address restricted and seriously harmful content and activity, including online pornography.   

The Roadmap highlights concerning evidence about children’s widespread access to online pornography 

Pornography is legal in Australia and is regulated under the Online Safety Act. Research shows that most Australian adults have accessed online pornography, with a 2020 survey by the CSIRO finding that 60 per cent of adults had viewed pornography. 

However, pornography is harmful to children who are not equipped to understand its contents and context, and they should be protected from exposure to it online. Concerningly, a 2017 survey by the Australian Institute of Family Studies found that 44 per cent of children between the ages of 9-16 were exposed to sexual images within the previous month. 

The Roadmap highlights findings from eSafety’s research with 16-18-year-olds, revealing that of those who had seen online pornography (75% of participants), almost half had first encountered it when they were 13, 14, or 15 years old. Places where they encountered this content varied from pornography websites (70%), social media feeds (35%), ads on social media (28%), social media messages (22%), group chats (17%), and social media private group/pages (17%). The Roadmap acknowledges that pornography is readily available through websites hosted offshore and also through a wide range of digital platforms accessed by children. 

The Roadmap finds an association between mainstream pornography and attitudes and behaviours which can contribute to gender-based violence. It identifies further potential harms including connections between online pornography and harmful sexual behaviours, and risky or unsafe sexual behaviours. 

The Roadmap finds age assurance technologies are immature, and present privacy, security, implementation and enforcement risks 

‘Age verification’ describes measures which could determine a person’s age to a high level of accuracy, such as by using official government identity documents. However, the Roadmap examines the use of broader ‘age assurance’ technologies which include measures that perform ‘age estimation’ functions. The Roadmap notes action already underway by industry to introduce and improve age assurance and finds that the market for age assurance products is immature, but developing. 

It is clear from the Roadmap that at present, each type of age verification or age assurance technology comes with its own privacy, security, effectiveness and implementation issues. 

For age assurance to be effective, it must: • work reliably without circumvention; • be comprehensively implemented, including where pornography is hosted outside of Australia’s jurisdiction; and • balance privacy and security, without introducing risks to the personal information of adults who choose to access legal pornography. 

Age assurance technologies cannot yet meet all these requirements. While industry is taking steps to further develop these technologies, the Roadmap finds that the age assurance market is, at this time, immature. 

The Roadmap makes clear that a decision to mandate age assurance is not ready to be taken. 

Without the technology to support mandatory age verification being available in the near term, the Government will require industry to do more and will hold them to account. The Australian Government has always made clear that industry holds primary responsibility for the safety of Australian users on their services. It is unacceptable for services used by children to lack appropriate safeguards to keep them safe. While many platforms are taking active steps to protect children, including through the adoption of age assurance mechanisms, more can and should be done. The Government is committed to ensuring industry delivers on its responsibility of keeping Australians, particularly children, safe on their platforms. 

Government will require new industry codes to protect children 

The effective implementation of the Online Safety Act is a priority of the Albanese Government, including the creation of new and strengthened industry codes to keep Australians safe online. The industry codes outline steps the online industry must take to limit access or exposure to, and distribution and storage of certain types of harmful online content. The eSafety Commissioner can move to an enforceable industry standard if the codes developed by industry do not provide appropriate community safeguards. 

The codes are being developed in two phases, the first phase addressing ‘class 1’ content, which is content that would likely be refused classification in Australia and includes terrorism and child sexual exploitation material. The second phase of the industry codes will address ‘class 2’ content, which is content that is legal but not appropriate for children, such as pornography. 

The codes and standards can apply to eight key sections of the online industry, which are set out in the Online Safety Act: • social media services (e.g. Facebook, Instagram and TikTok); • relevant electronic services (e.g. services used for messaging, email, video communications, and online gaming services, including Gmail and WhatsApp); • designated internet services (e.g. websites and end-user online storage and sharing services including Dropbox and Google Drive); • internet search engine services (e.g. Google Search and Microsoft Bing); • app distribution services used to download apps (e.g. Apple IOS and Google Play stores); • hosting services (e.g. Amazon Web Services and NetDC); • internet carriage services (e.g. Telstra, iiNet, Optus, TPG Telecom and Aussie Broadband); and • manufacturers and suppliers of any equipment that connects to the internet, and those who maintain and install it (e.g. of modems, smart televisions, phones, tablets, smart home devices, e-readers etc). 

Phase 1 

Work on the first phase of codes commenced in early 2022, and on 11 April 2022 eSafety issued notices formally requesting the development of industry codes to address class 1 material. On 1 June 2023, the eSafety Commissioner agreed to register five of the eight codes that were drafted by industry. The eSafety Commissioner assessed these codes and found that they provide appropriate community safeguards in relation to creating and maintaining a safe online environment for end-users, empowering people to manage access and exposure to class 1 material and strengthen transparency of and accountability for class 1 material. 

The steps that industry must take under these codes include, for example: • requirement for providers under the Social Media Services Code, including Meta, TikTok and Twitter, to remove child sexual exploitation material and pro-terror material within 24 hours of it being identified and take enforcement action against those distributing such material, including terminating accounts and preventing the creation of further accounts; and • requirement for providers under the Internet Carriage Service Providers Code, including Telstra, iiNet and Optus, to ensure Australian end-users are advised on how to limit access to class 1 material by providing easily accessible information available on filtering products, including through the Family Friendly Filter program, at or close to the time of sale. 

These registered codes will become enforceable by eSafety when they come into effect on 16 December 2023. 

The eSafety Commissioner requested that industry revise the code for Search Engine Services, to ensure it accounts for recent developments in the adoption of generative AI, and made the decision not to register the Relevant Electronic Services Code and Designated Internet Services Code. The eSafety Commissioner found that these two codes failed to provide appropriate community safeguards in relation to matters that are of substantial relevance to the community. For these sections of industry, eSafety will now move to develop mandatory and enforceable industry standards. The registered codes, including all of the steps industry are now required to take, are available at eSafety’s website: www.esafety.gov.au/industry/codes/register-online-industry-codes-standards. 

Phase 2 

The next phase of the industry codes process will address ‘class 2’ content, which is content that is legal, but not appropriate for children, such as pornography. 

In terms of the content of the code – which will be subject to a code development process – Section 138(3) of the Online Safety Act 2021 outlines examples of matters that may be dealt with by industry codes and industry standards, and includes: • procedures directed towards the achievement of the objective of ensuring that online accounts are not provided to children without the consent of a parent or responsible adult; • procedures directed towards the achievement of the objective of ensuring that customers have the option of subscribing to a filtered internet carriage service; • giving end‑users information about the availability, use and appropriate application of online content filtering software; • providing end‑users with access to technological solutions to help them limit access to class 1 material and class 2 material; • providing end‑users with advice on how to limit access to class 1 material and class 2 material; • action to be taken to assist in the development and implementation of online content filtering technologies; and • giving parents and responsible adults information about how to supervise and control children’s access to material. 

In light of the importance of this work, the Minister for Communications has written to the eSafety Commissioner asking that work on the second tranche of codes commence as soon as practicable, following the completion of the first tranche of codes. The Government notes the Roadmap recommends a pilot of age assurance technologies. Given the anticipated scope of the class 2 industry codes, this process will inform any future Government decisions related to a pilot of age assurance technologies. The Government will await the outcomes of the class 2 industry codes process before deciding on a potential trial of age assurance technologies. 

Government will lift industry transparency 

The Government also notes that the Online Safety Act 2021 sets out Basic Online Safety Expectations (BOSE) for the digital industry and empowers the eSafety Commissioner to require industry to report on what it is doing to address these expectations. A core expectation, set out in section 46(1)(d) of the Online Safety Act 2021, is that providers ‘…will take reasonable steps to ensure that technological and other measures are in effect to prevent access by children to class 2 material provided on the service’. The Online Safety (Basic Online Safety Expectations) Determination 2022 also provides examples of ‘reasonable steps’ that industry could take to meet this expectation, which includes ‘implementing age assurance mechanisms.’ 

The Commissioner is able to require online services to report on how they are meeting the BOSE. Noting the independence of the eSafety Commissioner’s regulatory decision-making processes, the Government would welcome the further use of these powers and the transparency that they bring to industry efforts to improve safety for Australians, and to measure the effectiveness of industry codes. 

Government will ensure regulatory frameworks remain fit-for-purpose 

The Government has committed to bring forward the independent statutory review of the Online Safety Act, which will be completed in this term of government. With the online environment constantly changing, an early review will ensure Australia’s legislative framework remains responsive to online harms and that the eSafety Commissioner can continue to keep Australians safe from harm. The review of the Privacy Act 1988 (Privacy Act Review) also considered children’s particular vulnerability to online harms, and the Privacy Act Review Report made several proposals to increase privacy protections for children online. The Government is developing the response to the Report, which will set out the pathway for reforms. 

The Privacy Act Review Report proposes enshrining a principle that recognises the best interests of the child and recommends the introduction of a Children’s Online Privacy Code modelled on the United Kingdom’s Age Appropriate Design Code. It is recommended that a Children’s Online Privacy Code apply to online services that are likely to be accessed by children. The requirements of the code would assist entities by clarifying the principles-based requirements of the Privacy Act in more prescriptive terms and provide guidance on how the best interests of the child should be upheld in the design of online services. For example, assessing a child’s capacity to consent, limiting certain collections, uses and disclosures of children’s personal information, default privacy settings, enabling children to exercise privacy rights, and balancing parental controls with a child’s right to autonomy and privacy. 

The requirements of the Code could also address whether entities need to take reasonable steps to establish an individual’s age with a level of certainty that is appropriate to the risks, for example by implementing age assurance mechanisms. 

More support and resources for families 

While the Government and our online safety regulator will continue working with industry on this challenge, tools are already available to prevent children accessing pornography online. 

The Government supports the eSafety Commissioner’s work in developing practical advice for parents, carers, educators and the community about safety technologies. These products include online resources such as fact sheets, advice and referral information, and regular interactive webinars. These resources are freely available through the eSafety Commissioner’s website at: www.eSafety.gov.au. The Roadmap proposes the establishment of an Online Safety Tech Centre to support parents, carers and others to understand and apply safety technologies that work best for them. The Government has sought further advice from the eSafety Commissioner about this proposal to inform further consideration. 

The Roadmap also recommends that the Government: • fund eSafety to develop new, evidence-based resources about online pornography for educators, parents and children; and • develop industry guidance products and further work to identify barriers to the uptake of safety technologies such as internet filters and parental controls. The Government supports these recommendations. In the 2023-24 Budget the Government provided eSafety with an additional $132.1 million over four years to improve online safety, increasing base funding from $10.3 million to $42.5 million per year. This ongoing and indexed funding provides Australia’s online safety regulator with funding certainty, allowing long term operational planning, more resourcing for its regulatory processes, and to increase education and outreach. 

The eSafety Commissioner works closely with Communications Alliance – an industry body representing the communications sector – to provide the Family Friendly Filter program. Under this program, internet filtering products undergo rigorous independent testing for effectiveness, ease of use, configurability and availability of support prior to certification as a Family Friendly Filter. Filter providers must also agree to update their products as required by eSafety, for example where eSafety determines, following a complaint, that a specified site is prohibited under Australian law.

Title, Anthropology, Pseudolaw

'The sovereign citizen superconspiracy: Contemporary issues in native title anthropology' by Pascale Taplin, Claire Holland and Lorelei Billing in (2023) The Australian Journal of Anthropology comments 

The Australian Native Title Act 1993 (Cth) provides for the recognition of rights and interests which arise from the traditional laws and customs of Australian First Nation peoples. Processing applications for a determination of native title can take many years and involves numerous stakeholders, presentation of evidence of ongoing connection with the land and sea within a claim area, negotiations with other parties including from industry and government, as well as negotiations between Indigenous groups. The process can be long, arduous, and often outcomes fail to satisfy the expectations of native title claimants. In this paper we investigate how individuals who either disagree with the premise underlying native title, or who have suffered negative impacts through the course of native title claims, may be either targeted by, or swept up in, Australian sovereign citizen rhetoric. We aim to contextualise presentations of sovereign citizen ideas in native title claim processes by providing an overview of the history of sovereign citizen thought, and examples of its contemporary expression in some Australian online forums. In doing this we aim to provide a broad foundation for future research into the issue. The dialogue in sovereign citizen online communities exposes people to extremism and superconspiracies. This article will provide a theoretical framework and historical context to the Australian sovereign citizen phenomena and describe online amplification of disinformation in Australia that has the potential to cause harm. We illustrate how stakeholders who are drawn to relatively moderate online content (such as opposing native title) may be radicalised through gradual exposure to extremist anti-government sentiment and hate speech. This article highlights the need for further research into sovereign citizenry in Australia, and strategies for native title practitioners to engage claimants who subscribe to and disseminate sovereign citizen disinformation in native title processes. 

In Australia native title rights can be established by claimants making an application to the Federal Court for recognition of their rights to land and seas under their traditional laws and customs (National Native Title Tribunal, 2010). Native title anthropologists provide research and evidence in relation to native title legal proceedings. The evidence of independent ‘expert’ anthropologists can be relied upon by parties to a native title proceeding (Palmer, 2011). ‘In-house’ anthropologists work from within Native Title Representative Bodies (commonly known as Land Councils) and work with claimants and their legal representatives through the course of the claim process, including in the facilitation of claim group information and decision-making meetings (Martin, 2004; Pilbrow, 2020). To achieve a successful determination of native title, the claim group must provide evidence that they continue to hold connection to the claimed area, which arises from laws and customs that have been acknowledged and observed in a manner substantially uninterrupted since the British claimed sovereignty in 1788 (Palmer, 2018). As a result of the complexity in pursuing legal recognition of traditional rights, some claimants choose to disengage from the legal process and reject the legality of the system as a whole and the legitimacy of the practitioners who work within the system (Taplin, 2023). In 2022, a group called the Original Sovereign Tribal Federation (OSTF) posted disinformation on social media accounts about native title, and promoted a variety of conspiracy theories, including anti-government sentiment and hate speech (OSTF, 2022). Active members of this group disseminate disinformation such as stating that individuals can lawfully disregard Australian law. The origins of these pseudo-legal arguments trace back to the sovereign citizen superconspiracy and terrorist groups in the United States (Netolitzky, 2018a). The sovereign citizen superconspiracy is now well established in Australia (Baldino & Lucas, 2019; Campion et al., 2021; Kent, 2015). Incorporating what many people would consider to be extremist worldviews, the popularisation of sovereign citizen theories, including amongst Indigenous communities, is affecting the work of practitioners in native title processes (Taplin, 2023). 

In the conspiracist milieu, there is no uniformity of specific beliefs amongst clearly defined ‘groups’ or communities; rather, diverse and loosely defined communities include individuals who adopt unconventional beliefs and incorporate elements of sovereign citizen theory (potentially along with elements of various other theories) into their belief system (Toseland, 2019). Individuals may adopt some sovereign citizen theories but may not self-identify as a sovereign citizen or as a member of any named or clearly demarcated group (Harambam & Aupers, 2017). For the purpose of clarity in the ensuing discussion, we will refer to those people or groups who ascribe to the shared set of beliefs described below as sovereign citizens. 

The sovereign citizen conspiracy theory holds that government and legal institutions are illegitimate, and that an individual can declare themself sovereign (Berger, 2016). A sovereign person is believed to exist outside of the law and of the jurisdiction of government and the courts. Sovereign citizens often believe that the existing government is a corporation. Some people who subscribe to the sovereign citizen ‘government is a corporation’ theory incorporate Pizzagate, QAnon and #SaveTheChildren theories, which assert that a secret sect is driving global governance (Badham, 2021). Conspiracy theories are adopted and adapted, or ‘localised’ for best fit. Basit (2021, p. 3) observes that the ‘localization of conspiracy narratives allows them [conspiracy theories] to gain more currency and traction’. Elements of conspiracy theories are often adopted into the worldviews of individuals who feel persecuted or harmed by governments or legal systems, as they may provide ‘victimhood narratives’ to explain perceived persecution or harm (Armaly et al., 2022; Pantazi et al., 2022). This paper analyses equivalent responses observed amongst members of native title claimant groups by native title practitioners in Australia. In order to understand how sovereign citizen pseudo-legal arguments are impacting native title processes in Australia, it is important to first understand the origins and evolution of the sovereign citizen conspiracy theory, as well as the consistent themes and beliefs which underlie the disparate set of arguments advocated by sovereign citizens.

Land

'Municipal Level Reconciliation: Natural Land Features as Legal Persons' by Sarah Stavridis in Canadian Law Review comments 

Recently, Mutehekau Shipu, or the Magpie River in Quebec, became the first natural entity in Canada to be granted legal personhood through the Magpie River Resolution. The resolution, passed on February 16, 2021 by the Regional County Municipality of Minganie, explains that rights recognition for nature promotes the recognition of Indigenous legal traditions. Further, the resolution states that Mutehekau Shipu is located in Nitassinan, the traditional territory of the Innu of Ekuanitshit. As such, Minganie and the Innu Council of Ekuanitshit reached an agreement to declare the river as a subject of rights to protect it as a living part of the environment. Mutehekau Shipu was granted fundamental rights and Guardians were appointed to act on behalf of the river and protect its rights. While this is the first case of legal personhood for a natural land feature in Canada, it follows a worldwide trend of recognizing the rights of nature based on Indigenous legal traditions and ontologies. Many Indigenous legal traditions across Turtle Island recognize the rights and personhood of natural land features and animals. 

Plant Breeders

'Propagating materials and harvested materials: clarifying the scope of plant variety or breeder’s rights' by Charles Lawson in (2023) 18(9) Journal of Intellectual Property Law & Practice 655–672 comments 

Plant breeding faces the inherent problem of ensuring that there are no disincentives that might hamper breeders from delivering improved plant varieties to growers and bringing superior produce to consumers. Plant variety or breeder’s rights is one means of addressing these concerns, regulating for an incentive for plant breeders to develop these improved varieties. The International Convention for the Protection of New Varieties of Plants done, most recently, at Geneva on 19 March 1991 (UPOV 1991) provides a framework agreement consistent with the World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights. UPOV 1991 provides for exclusive rights (variously called a variety right or a breeder’s right) for ‘propagating material’ and then extends this to ‘harvested material’ and the products of ‘harvested material’. The key effect of these regulated exclusive rights is to facilitate a royalty on new varieties by limiting the dealings with that variety as a reward and incentive to breed improved varieties — the virtuous cycle facilitating new and better varieties into the market for the benefit of consumers. The problem addressed by this article is the extension of the exclusive rights for ‘propagating material’ to ‘harvested material’ and the products of ‘harvested material’. This is essentially an issue about the meaning of ‘harvested material’, and specifically, that ‘harvested material’ that is also ‘propagating material’ should be considered ‘propagating material’ per se for the purposes of UPOV 1991 and national implementing laws.

'Access to biodiversity for food production: Reconciling open access digital sequence information with access and benefit sharing' by Brad Sherman and Robert J Henry in (2021) 14(5) Molecular Plant comments 

Over the last 40 years or so, a complex web of international legal agreements was developed that regulate the access, transfer, and use of plant genetic resources. These include the Convention on Biological Diversity (CBD), the Nagoya Protocol, and the International Treaty on Plant Genetic Resources (Figure 1). In developing these legal regimes, policy makers struggled to balance a number of conflicting demands. These included ensuring that access providers share in the benefits that arise from the use of their genetic resources; that users who value-add to genetic resources can protect their innovations via intellectual property; and, at the same time, that scientists and breeders have ongoing access to genetic resources. While there are problems with the existing regimes, they have reached an uneasy compromise of sorts. 

[graphic omitted] 

In recent years, dramatic changes in the life sciences have threatened to undermine this complex and fragile balance (Unamba et al., 2015). These changes have been facilitated by new genomic technologies such as gene editing and synthetic biology (McDaniel and Weiss, 2005), by improved and cheaper sequencing technologies (Shaffer, 2007) that rapidly increased the availability of DNA sequence data, and advances in whole-genome sequencing (Figure 1). Genomics is now a major source of data, rivalling big data disciplines like astronomy in the pace of data acquisition, storage, and analysis (Stephens et al., 2015). Open access international data repositories, such as GenBank, the DNA Databank of Japan, and European Molecular Biological Laboratory, that house a huge amount of DNA sequence-related data (estimated at over 1.5 billion sequences) (WiLDSI, 2020) facilitate the sharing and use of digital sequence information (DSI) (Ad Hoc Technical Group on Digital Sequence Information, 2020). The scientific value of public databases largely comes from the aggregation of data that allow scientists to identify patterns across the stored sequences (WiLDSI, 2020).

Genomics

DNA.I.: Early findings and emerging questions on the use of AI in genomics (Ada Lovelace Institute, 2023) by Henry Farmer comments 

In recent years, the scientific fields of artificial intelligence (AI) and genomics have experienced increased public attention and investment by public and private institutions. The UK Government, for example, has made explicit plans to become ‘the most advanced genomic healthcare system in the world’, and lists AI as one of five ‘critical technologies’ that can make the country a scientific superpower. 

Both AI and genomics have already been used to address major scientific challenges, including genomic sequencing to identify novel COVID-19 variants and the use of AI and machine learning to predict the structure of proteins. But both fields have also resulted in controversies over their ethical and societal implications, and raised a host of difficult issues for those looking to regulate, direct and govern their development and use. 

In genomics, recent debates about acceptable uses of CRISPR-Cas9 have raised concerns around the ethics of genetic engineering. Similarly, the field of AI has recently experienced an increasingly intense public conversation about the ethical and societal implications of foundation models, powerful AI systems capable of a wide range of general tasks. 

AI and genomics are also becoming progressively more intertwined. Many recent advances in genomics have been made possible by the use of AI, and AI research and product teams have increasingly sought to use genomic data to create AI-powered genomics research and products. Economic forecasts have suggested the market for AI and genomics technologies could reach more than £19.5 billion by 2030, up from half a billion in 2021. 

The increasing convergence of AI and genomics is set to present policymakers with a new set of practical and theoretical challenges. Considered separately, developments in AI and in genomics already pose deep questions concerning agency, privacy, quality, bias and power. Considered in relation to one another, the issues posed by the two technologies become harder to predict, more complex and more numerous. 

While there has been much research considering the ethical impacts of AI and genomics as separate technologies, comparatively little attention has been paid to exploring the broader implications of the two technologies when used together, and from a structural perspective. For policymakers seeking to navigate and regulate AI and genomics, this is a critical evidence gap. 

AI and genomics futures is a joint project between the Ada Lovelace Institute and the Nuffield Council on Bioethics that investigates the ethical and political economy issues arising from the application of AI to genomics – which we refer to throughout this report as AI-powered genomics. This report of our early findings sets out the results of our research, its significance for policymakers, and the specific topics and questions we will focus on. 

Our research shows that:

• AI-powered genomics has seen significant growth in the past decade, driven principally by advances in machine learning and deep learning, and has developed into a distinctive, specialised field. 

• Private-sector investment in companies working on AI-powered genomics has been substantial – and has mainly gone to companies working on data collection, drug discovery and precision medicine. 

• The most prominent current and emerging themes in research on AI- powered genomics relate to proteins and drug development, and the prediction of phenotypic traits from genomic data.

Moreover: implications of AI-powered genomic health prediction

• The specific combination of emerging themes and capabilities identified in AI-powered genomics points to the increasing viability of two broad techniques within healthcare over the next five to ten years:

— AI-powered genomic health personalisation: the ability to understand how treatment for the same health condition might vary between different people on the basis of genomic variations, and to tailor and adapt treatments accordingly. 

— AI-powered genomic health prediction: the use of genomic data to estimate the probability of different people developing particular health conditions, responding well or badly to particular medicines or treatments, or being affected by lifestyle factors. 

• The potential emergence of these techniques raises profound, urgent ethical, legal and policy questions. 

• While some of these issues are already discussed and accounted for in existing legal, ethical and policy discourse, there are many questions concerning the macro-level impacts of developments in AI-powered genomics that have yet to be adequately explored. 

• In particular, there is an urgent, relatively unmet need for sustained thinking and research on the structural, political, and economic implications of AI-powered genomic health prediction, and how its development might be steered and governed in line with public values and priorities.

Capacity

'A Congressional Incapacity Amendment to the United States Constitution' by John J. Martin in 76 Stanford Law Review Online comments 

Aside from waiting for the next election, the U.S. Constitution provides no proper recourse for the incapacitation of a member of Congress. Indeed, there presently exist no practical means of ensuring that representation continues undisrupted for affected constituents. This is problematic and antithetical to our democracy. And with Congress’s average age on the rise, the problem may only get worse. 

There has been little discussion within legal scholarship about congressional incapacity, despite its democratic implications. The few existing pieces that have discussed the topic have largely adopted an institutional perspective, focusing on the issue of mass, Congress-wide incapacitation rather than a constituency-minded perspective that focuses on individual instances of incapacitation. This Essay distinguishes itself from existing literature by focusing on the latter. Using the Twenty-Fifth Amendment’s strengths and weaknesses as a blueprint, this Essay provides one of the first attempts to lay out how precisely one could resolve individual congressional incapacity — simply referred to as “congressional incapacity” for the remainder of the Essay — by constitutional amendment. 

Specifically, the Essay imagines such an amendment having two sections. The first section would permit members of Congress to temporarily transfer their powers to an interim appointee in times of short-term incapacity, with limitations regarding the residency and party affiliation of said appointee. The second section would create a process for involuntary transfers of powers whenever a member of Congress has a long-term incapacitation but is unable or unwilling to use the voluntary transfer process or resign. This process would be multi-layered, involving the will of the affected constituents, either by direct vote or proxy via state legislatures, an independent board of medical experts appointed and regulated by Congress, and potentially Congress itself. Through this design, the process would ensure that decisions of involuntary transfer would still maintain democratic legitimacy all while minimizing the effects of personal or partisan biases. 

False Imprisonment

In Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020 Wigney J states 

1 The applicant in this proceeding was the victim of a gross miscarriage of justice. He was detained and imprisoned for contempt following what could fairly be described as little more than a parody of a court hearing. He spent seven days in prison before being released. The order that resulted in his incarceration was subsequently set aside. The central issue in this proceeding is whether he is entitled to a remedy to compensate him for the injury and loss suffered by him as a consequence of that lamentable incident. 

2 The applicant will be referred to as Mr Stradford in these reasons for judgment. That is not his real name. It is a pseudonym that was used in the proceedings that resulted in his imprisonment. It is appropriate to continue to use that pseudonym. 

3 The person primarily responsible for Mr Stradford’s imprisonment was the first respondent, a judge of the then Federal Circuit Court of Australia (the Judge). Mr Stradford and his former wife came to appear before the Judge in a matrimonial cause pursuant to the Family Law Act 1975 (Cth). The Judge believed that Mr Stradford had not disclosed his true financial position to his former wife and ordered him to disclose certain documents. When the matter came back before the Judge on a later occasion, the Judge declared that Mr Stradford had not complied with those orders and was in contempt of court. He ordered that Mr Stradford be imprisoned for twelve months and issued a warrant to give effect to that order. 

4 Private security guards contracted by the second respondent, the Commonwealth of Australia, detained Mr Stradford pursuant to the warrant and took him to a holding cell in the court complex. A short time later, Queensland Police officers, also acting pursuant to the warrant, took custody of Mr Stradford. He spent five miserable days in a police watch house in Brisbane before being transported to a correctional facility operated by the third respondent, the State of Queensland. He spent another two difficult days in that facility before he was released on bail pending an appeal. 

5 There could be no real dispute that the Judge made a number of fundamental and egregious errors in the purported exercise of his power to punish Mr Stradford for contempt. He sentenced Mr Stradford to imprisonment for contempt without first finding that Mr Stradford had in fact failed to comply with the orders in question. He erroneously believed that another judge had made that finding, though exactly how he could sensibly have arrived at that position in the circumstances somewhat beggars belief. He also failed to follow any of the procedures that he was required to follow when dealing with contempt allegations and otherwise failed to afford Mr Stradford any procedural fairness. He effectively pre-judged the outcome. Imprisonment was a fait accompli. 

6 It perhaps came as no surprise, then, that on 15 February 2019, the Full Court of the Family Court of Australia (as it then was) (FamCA Full Court) set aside both the contempt declaration and the imprisonment order made by the Judge. It concluded that “to permit the declaration and order for imprisonment to stand would be an affront to justice” and that what had occurred to Mr Stradford constituted a “gross miscarriage of justice”: Stradford v Stradford (2019) 59 FamLR 194; [2019] FamCAFC 25 at [9] and [73]. 

7 Mr Stradford’s detention and the deprivations and indignities that he had to endure while imprisoned exacted a significant toll on him. There was no dispute that he continues to suffer from post-traumatic stress disorder and a major depressive disorder as a result of the incident. 

8 Mr Stradford commenced this proceeding alleging that the Judge had committed the torts of false imprisonment and collateral abuse of process. He also alleged that the Commonwealth and Queensland were vicariously liable for the actions of their officers in falsely imprisoning him. He claimed damages for deprivation of liberty, personal injury and loss of earning capacity. The Judge, the Commonwealth and Queensland all denied liability. 

9 The question whether the Judge, the Commonwealth and Queensland are liable as alleged by Mr Stradford raises a number of issues, some of which involve complex and difficult questions of fact and law. 

10 The first issue concerns the precise nature of the errors made by the Judge in imprisoning Mr Stradford for contempt. The Judge admitted that he made a number of errors, though he disputed some of the other errors that were alleged against him. In particular, he disputed that, in instigating or pursuing the contempt allegation against Mr Stradford, he was motivated by an improper or collateral purpose. He therefore disputed that he committed the tort of collateral abuse of process. He also disputed that he pre-judged the outcome of the contempt allegation against Mr Stradford. 

11 The second issue, which relates to the tort of false imprisonment, is whether the imprisonment order made by the Judge remained valid until set aside by the FamCA Full Court. If the order remained valid until set aside, it provided lawful justification for Mr Stradford’s imprisonment. If, however, the order was invalid from the outset because it was infected by jurisdictional error, it provided no lawful justification. 

12 The third issue, which is perhaps the most fundamental issue insofar as the Judge’s liability is concerned, is whether, even if it were to be found that Mr Stradford was falsely imprisoned, the Judge is nevertheless immune from any liability because he made the imprisonment order in his capacity as a judge. That issue is by no means straightforward. The Judge was a judge of an inferior court, not a superior court, and was not protected by any statutory immunity. The difficulty arises because the common law principles concerning judicial immunity that apply in respect of inferior court judges, at least in Australia, are somewhat unsettled. It is therefore necessary to embark on an excursion through a long line of cases, stretching back hundreds of years, which deal with the circumstances in which an inferior court judge may lose the protection of judicial immunity. 

13 The question whether the Judge is protected by judicial immunity in the circumstances of this case raises four key questions: first, whether at common law inferior court judges lose their immunity from suit in respect of their judicial acts if they acted without, or in excess of, jurisdiction; second, if that is the case, what precisely does acting without, or in excess of, jurisdiction mean or entail in that context; third, did the Judge act without, or in excess of, jurisdiction in that sense when making the imprisonment order; and fourth, whether, despite being an inferior court judge, the Judge was nevertheless entitled to the immunity of a superior court judge in the circumstances of this case because he was exercising the Circuit Court’s contempt powers. 

14 The fourth issue, which concerns the liability of the Commonwealth and Queensland, is whether police and prison officers have available to them a common law defence to an action for false imprisonment if they did no more than act in accordance with an order or warrant issued by an inferior court judge which appeared valid on its face. This is another contentious issue. In order to resolve it, it is again necessary to trawl through another long line of somewhat obscure cases, again stretching back hundreds of years, concerning the liability of police and prison officers in such circumstances. 

15 The fifth issue concerns whether Queensland has available to it a statutory defence based on s 249 of the Criminal Code Act 1899 (Qld). The issue is, in essence, whether that provision, properly construed, can apply to a warrant issued by a federal court, in this case the Circuit Court, simply because that court was sitting in Queensland when the warrant was issued and the warrant was therefore to be enforced in Queensland by officers located in Queensland. 

16 The issues in this case are not, however, entirely limited to liability. If liability is established, significant issues also arise in relation to the assessment and quantification of damages. Those issues include: whether Mr Stradford is entitled to aggravated and exemplary damages for deprivation of liberty; the quantification of damages referrable to the psychiatric injury suffered by Mr Stradford as a result of his imprisonment; and the quantification for any loss of earning capacity suffered by Mr Stradford as a result of his psychiatric injury. 

17 For the reasons that follow, most of the liability issues are resolved in favour of Mr Stradford. The Judge, the Commonwealth and Queensland are liable to Mr Stradford for the tort of false imprisonment. There was no lawful justification for Mr Stradford’s detention. The Judge is not protected by judicial immunity because he relevantly acted without, or in excess of, his jurisdiction. The Commonwealth and Queensland do not have available to them, at least in the circumstances of this case, any defence based on the fact that their officers acted pursuant to a warrant which appeared regular on its face. Mr Stradford is accordingly entitled to an award of damages. As will be seen, however, those damages, properly assessed, are not nearly as large as Mr Stradford would have it.

SA DPP Culture

The South Australian Office of the Director of Public Prosecutions Workplace Experience Report states 

In December 2022, the Chief Executive (CE) of the Atorney-General’s Department provided a briefing to the Atorney-General regarding an increase in staff turnover within the Office of the Director of Public Prosecutions (ODPP or the Office) since 2019. 

The briefing outlined the CE’s intention to work with the Director of the ODPP (the Director) to seek feedback from those who had left during that period. Like an exit interview, the process would be designed to understand their experiences of the workplace and the factors that influenced their decision to leave. This would allow the Office to identify areas that need addressing through targeted actions to reduce turnover. During initial discussions between the CE and the Director, recruitment was also raised as an issue, with the Director reporting that it was becoming increasingly difficult to atract candidates, with fewer applications received than in previous years, and fewer applications received from senior or experienced legal practitioners. It was agreed there would be benefit in broadening the scope of the work to include recruitment as a second area of focus, and benefit in seeking feedback from the current ODPP workforce at the same time. To provide a greater sense of independence, privacy and confidentiality, and psychological safety for participants in the process, it was agreed that an external consultant would be engaged to undertake the work. It was anticipated that this work would lead to further work, where key findings are explored in more detail. Rosslyn Cox, an independent consultant, was engaged to consult with current and former ODPP staff on the topics of retention and atraction with a focus on understanding the reasons behind an increase in people leaving the ODPP since 2019. A total of 197 current and former employees participated through a survey and individual meetings with the consultant, between 15 March and 2 June 2023. 

The process involved the design and distribution of a non-mandatory survey, sent to all current staff and those who had left the ODPP since 2019 with the option of individual meetings with the consultant. In total, 197 out of a possible 287 individuals (67%) participated in the process, 53 former staff (out of a possible 101, 52%) and 144 current staff (out of a possible 186, 77%). Respondents represented every workgroup (legal, clerks, administrative and Witness Assistance teams), and every classification level within the Office including at the most senior levels (LEC1 to LEC5, ASO3 to SAES2, AHP1 to AHP3). The themes identified through the responses were also consistent across current and former staff, which means that the feedback should be read as representing persistent themes, an accurate reflection of the workplace experience and culture from the perspective of most respondents and not simply the concerns of a particular cohort. 

The purpose of this report is to represent the perceptions and experiences of current and former employees of the ODPP, to beter understand issues around retention and recruitment. It is intended to be an internal document, the first phase of a broader piece of work designed to address the issues raised through the feedback. In some cases, the report provides additional context and background, as shared by staff, to provide context to some of the themes raised through the process, but it was never intended to be presented as a comprehensive organisational review, a balanced report, with a detailed analysis and synthesis of the issues raised. That work will come later. 

The report is intentionally writen in a narratve tone, to represent the voices of staff. It is intentonally writen to reflect the persistent themes that were raised through the survey and the individual meetngs but acknowledges that there are other perspectives. For this reason, litle additional information has been provided to counter or respond to any perceptions unless the context is helpful. As the reader, where your perceptions or experiences differs from those reflected in this report, rather than seeking to dismiss the observation as that of a malcontent, or to correct the perception or challenge the experience, be curious about why so many people share that view. The report refers in the main to legal officers as they represent the largest responding cohort, but the themes presented in the report are based on feedback received from legal officers, law clerks, secretaries, administrative staff and the Witness Assistance Team, and the issues and findings apply to all staff in the ODPP. 

In summary, feedback received through the survey and individual staff meetings, suggest that the current workplace experience for most staff in the ODPP is untenable. Respondents highlighted what many describe as unacceptable, unreasonable and unsustainable levels of pressure and stress working at the ODPP and the potential consequences for work standards, professional integrity, wellbeing and work life balance. 

The main contributor to the pressure and stress was and continues to be the unrelenting workload driven by volume, increasing complexity, often distressing and difficult content, and the sense of responsibility that comes with wanting to do what’s right for victims, witnesses and their families. Importantly, much of the workload pressure appears to be a consequence of factors beyond the  control of the ODPP, who sit within the criminal justice system between SAPOL and the Courts, and who are obliged to prosecute indictable or summary offence against the State, irrespective of current resources. Workload pressure and stress have been compounded recently with the departure of so many experienced senior staff, the additional work that comes with needing to support so many new, less experienced staff, the reality that some staff have work that has previously been managed at a higher classification (e.g. a LEC1 with a legal practice previously managed by a LEC3), and an expectation from the Director that people do more with less in order to meet their obligations as officers of the court. 

Other key factors identified by respondents can be grouped into the following themes, noting that these are themes that were persistently raised by a majority of respondents, but do not necessarily reflect the experiences of every respondent in the process: • Disparity in pay and conditions, particularly when compared with other parts of the public sector. • An apparent lack of recognition by leadership of individual value, contribution, experience and expertise despite significant professional and personal sacrifices. • An apparent lack of organisational support for managing the consequences to wellbeing and work life balance of working under sustained pressure and stress. • An apparent lack of trust and confidence in the Office from leadership demonstrated by a lack of consultation and communicaton, managing by presenteeism, and an associated lack of flexibility in working arrangements. • An apparent lack of on-the-job training and support, as well as professional and career development opportunities to enable staff to achieve the high-quality work standards they hold themselves to. • Practices, policies and procedures that appear to contribute to perceptions of uncertainty, favouritsm, and reinforcing the perception that individuals are seen as disposable resources. • Examples of behaviours that fall short of the Department’s behavioural expectations that don’t seem to be effectively addressed, reinforced by an apparently inconsistent approach to managing performance, and • A Director whose extraordinary intellect, indefatigable work ethic and approach to the law as a vocation, has led to explicit and implied messaging around expectations workload management and wellbeing. 

There were of course examples where respondents identified individuals who had demonstrated strong leadership, recognising, rewarding and nurturing high performance, making themselves  available to provide support and guidance. In fact every member of the executive team, including the Director, was singled out for individual praise through the process, which of course should be acknowledged and recognised. Most respondents, both former and current staff, across all levels and workgroups, resonated with the themes listed above. 

There was also no suggestion that this is a case of people not working hard. In fact respondents were at pains to clarify that any critical feedback needed to be understood in this context: it’s not a matter of people not working hard, it’s a mater of what people are working hard on. For example, you may have an individual in a management or executive role, appointed to that role because they have outstanding legal capabilities but limited skills or interest in managing people, a case of poor job fit. Or you might have an individual in a management or executive role who may have the requisite capabilities, but workload or resources has prevented them from using those skills effectively, a case of poor job design. The most obvious example of this is expectng the Director, appointed because of his exceptional legal expertise and experience, to discharge his powers to prosecute on behalf of the state, while at the same time overseeing the strategic, operational and people management responsibilities of an office of 180 people. What is clear is that the prevailing approach to structure, role design and recruitment has been to value legal capabilities above all others, and to rely on the goodwill of all staff to do whatever it takes to get the job done. This is no longer tenable. 

What is notable about this report, is that it is consistent with the findings and observations of two previous reports prepared for the ODPP in 2016 and 2017: an Independent Review of the ODPP conducted by Partners in Performance and Wellbeing Program Report, prepared by AGD’s Workforce Development Consultant Luke Brady. This suggests that addressing the root causes of the issues requires an understanding of historical and current issues, macro (the legal profession and the labour market generally) and micro (the Office and the leadership team) influences on culture, and the distinction between how systemic issues versus actions and behaviours of individuals have contributed to challenges that respondents have raised. 

In formulating the responses to this report, consideration should be given to both capability and capacity for change within the ODPP. Capability is understood to be the knowledge, skills and expertise to undertake the work. Capacity is understood to be the amount of work that can be produced within a timeframe based on capabilities and resources. Capacity was cited through this process as one of the possible reasons for a lack of action on many of the issues that have been raised in previous reports. That the realities of the relentless workload mean that proactive change  management has not been possible. While it is true that creating capacity is essential to the successful implementation of change (Coombe 2004) change also builds capacity (Heward 2007), the literature points to three critical factors in understanding capacity for change: capabilities and resources (including time), systems and procedures and organisational culture (Judge 2011). It is clear then that building and sustaining capacity requires the necessary capability from the top down (Grisso et al., 1995; Rist, 1995). 

What is needed is a rethink of the way the ODPP is structured and operates, with the intention of leveraging the skills of highly competent and experienced legal officers to focus on preparing for and prosecuting the state’s criminal cases, whilst also building new and separate capability and capacity in areas of strategic, operational and people management. At the same time, all people managers must be held accountable for the performance and wellbeing of their teams and must be supported to either build capability in those areas or move to roles that don’t require those capabilities. It is difficult to see how the current arrangements could adequately address the issues raised in this report, when they haven’t been able to up to this point. 

In addition the ODPP must engage and work with other areas of the criminal justice system to identify opportunities to manage workload demands and priorities, both into and out of the ODPP. If that cannot be achieved within the constraints of the existing ODPP workforce profile, there seems to be no alternative but to increase the resources in the Office to enable them to meet the increasingly complex and voluminous demands the system places on them. 

If this process is to achieve meaningful change, any recommendations need to take into consideration the reasons why previous reports have not achieved the outcomes they were designed to achieve, focus on those factors that the ODPP has control over, and seek to influence change across the legal profession and within a criminal justice system seemingly ill equipped to support the needs of a modern high performing workplace. This will require an honest conversation about the cultural norms within the legal profession, and the need to adapt to a rapidly changing labour market and far more discerning individuals.

Discourse

In Rowe and Anor v Bishop and Anor (No 4) [2023] SADC 29 - a splash of gibberish admiralty law, a thumbprint with red ink (or was it blood?) and a demand for recusal on the basis of treason - Slattery J states 

 [30] An allegation of treason is an extraordinarily serious matter. It is made without any foundation and, as I have demonstrated, there is no factual basis for making the allegation. The applicants do not display any understanding of the seriousness of the allegations or what is required to be proved in order to make out such allegations. 

[31] The applicants were prepared to make this allegation despite the fact that they have refused to continue to participate in the proceedings after the adverse judgment No 2 delivered by me on 10 May 2022. I consider that the application is absurd, the supporting material is nothing more than a misconceived rambling discourse and it is all intended to vex and harass this court. It is also symptomatic of the applicants being unable to accept a decision made upon a claim brought by them which does not favour them. Rather than accept the decision and proceed accordingly the applicants have adopted an approach of challenging the foundational principles of the independence of the judiciary. This is symptomatic of the failure of the applicants to comprehend what they are alleging and that in a proceeding which they commenced, they are bound by a judgment against them. No appeal has been brought against any of my judgments. It appears that the applicants are content to attack the judiciary and the judicial process because of their unhappiness with the result of the proceedings which they initiated. That is a regrettable development. It appears to be symptomatic of a level of public discourse that relies almost entirely upon a requirement that its adherents are unable to discern between logical reasoning based upon identifiable proven facts and an approach which scorns and derides such a method. It appears that as part of its role, this court must now also deal with this lamentable development

Medical Labs

'Challenges and gaps in regulating medical laboratories in India' by Pallavi Gupta and Sunil Nandraj in Medical Law International comments 

Accurate diagnosis is an essential component of healthcare delivery. However, research on the delivery of diagnostic services is lacking in low- and middle-income countries. This article examines the issues related to the provision of medical laboratory services in India, including licencing, geographic distribution, charging practices, quality, personnel requirements, information sharing, and newer technologies that impact the sector. The challenges and gaps in regulatory mechanisms governing these services are discussed, highlighting the need for improvements. Legislation to regulate medical laboratories in many Indian states is either outdated or non-existent, with some states recently updating or enacting their laws. A registry of medical laboratories in the country will assist in assessing and meeting the shortfall. Universal adoption of external and inter-laboratory quality control mechanisms will help in standardization and ensuring quality. Clarity and consensus on who can operate medical laboratories and the responsibility of different cadres of technical staff are required. The provision for making information on registered laboratories publicly available under the Central and some state legislations can be very useful to the users in choosing laboratories. Mandatory reporting to the government by both public- and private-sector laboratories will help in maintaining data on disease burden and in planning health services. However, the lack of data protection laws in the country creates the potential for violation of the users’ privacy when laboratories store data digitally and report it online on government web portals. Caution is warranted in the use of newer technologies until the regulations governing these matters are strengthened. A combination of voluntary and statutory mechanisms such as accreditation and regulation would be useful instruments for ensuring quality in diagnostic services. Research on the effectiveness of existing provisions at the state level would help in understanding their impact and suggest ways of further improvement.

Algorithmics

'The Thought Problem and Judicial Review of Administrative Algorithms' by David Tan in Adelaide Law Review (Forthcoming) comments 

The issue of whether algorithms can be characterised as “thinking” or have properties of “thought” has arisen in both judicial decisions like Pintarich and scholarly discussion regarding issues like bias. This paper refers to this issue as the Thought Problem and introduces three principles for how to resolve it: the manifestation, implementation, and equivalent treatment principle. The manifestation principle states that an algorithmic output can be considered a decision where the manifestation of conduct of the agency supervising the algorithm would be understood to the outside world as a product of a thinking person. The implementation principle states that the humans in the executive who implemented the algorithm have responsibility for the algorithm. The equivalent treatment principle proposes to treat algorithms and a humans who reasoned similarly as equivalent before the eyes of administrative law. The paper does not try to conclusively resolve which principle is best but suggests the equivalent treatment principle is the most complete one for dealing with the Thought Problem. 

Gender

'Gender and the Analytical Jurisprudential Mind' (Oxford Legal Studies Research Paper No. 46/2015) by Leslie Green asks 

Why does contemporary jurisprudence have so little to say about law and gender? I think that is because gender is not relevant to theories of the nature of law. Joanne Conaghan disagrees. She says the methods of analytic philosophy screen out gender by abstracting concepts from social contexts, smuggling in hidden values, and ignoring empirical evidence. My own work on the law of marriage is said to exemplify this. But Conaghan is comprehensively mistaken in her diagnosis. She misunderstands analytic jurisprudence, misunderstands the relation between sex and gender, and misunderstands the role of social facts in legal philosophy. Feminist legal theory is made poorer if it accepts the caricature she offers. Legal scholars should be more open to the contributions of analytic philosophy to feminist inquiry.  ... 

In the end, jibes about the ‘analytical jurisprudential mind’, like jibes about ‘the criminal mind’ —or for that matter the ‘female mind’ — express little more than prejudice. As vices go, an intellectual prejudice is a minor thing. Still, it will have victims. Its main casualties will be beginning students, especially young lawyers curious about things like the social construction of gender, the evaluative character of jurisprudence, the subordination and silencing of women, or social inclusion and legal equality. Will they learn that some of the best contemporary thinking on these themes includes work by analytic philosophers, and even analytic legal philosophers? Will they discover that this work is sensitive to context where relevant, that it is alert to the ways values enter analysis, and that it is literate about social facts? Not if they accept Conaghan’s caricature. Students taught what the ‘analytical jurisprudential mind’ must think about some issue may not feel inclined to spend time discovering what any particular writer actually does think. They are as likely to set about building separation walls, to guard against intrusions by gender-excluding abstractions, smuggled-in values, and empirical biases—unlawful migrants to the empire of law and gender, disguised in nit-picking arguments.“

Antitrust

'Rawls and Antitrust’s Justice Function' by Elettra Bietti comments 

Antitrust law is more contested than ever. The recent push by the Biden Administration to re-orient antitrust towards justice and fairness considerations is leading to public backlash, judicial resistance and piecemeal doctrinal developments. The methodological hegemony of welfare maximizing moves in antitrust makes it theoretically fragile and maladaptive to change. To bridge disagreements and overcome polarization, this Article revisits John Rawls’ foundational work on political and economic justice, arguing that it can facilitate consensus and inform the present and future of antitrust law. 

John Rawls’ work on justice can help re-orient antitrust law in four ways. First, it provides a common language of justice that enables various “camps” of thinkers and activists find common ground on the relation between antitrust’s economic mission and its implications for political justice. Second, it helps recalibrate the balance between utilitarian moves that emphasize welfare maximization on the one hand and deontological or structural justice considerations on the other. Third, and related, Rawls guides our thinking on the relationship between justice, efficiency and welfare, showing us that attempts at separating antitrust law’s mission from its impact on liberty, equality and fairness violates basic moral intuitions. Fourth, Rawls’ late work on political economy, particularly notions of property-owning democracy and liberal democratic socialism, can help situate antitrust law within broader policy thinking on economic justice. 

Rawls’ work highlights that antitrust has a justice function, and that such function has two basic dimensions: a structural dimension, to structure and constrain market dynamics so as to enable free and fair exchanges compatible with justice; and a corrective dimension, to rectify the creation of large inequalities or excessive concentrations of power and re-diffuse and decentralize power adaptively. An investigation into the Rawlsian roots of antitrust law suggests three avenues for reform: (1) enhancing publicity and democratizing antitrust law and procedures; (2) promoting commercial reciprocity through structural and corrective mechanisms; and (3) situating antitrust law within a broader constellation of regulatory tools. 

Payments

The Commonwealth's A Strategic Plan for Australia’s payments system: Building a modern and resilient payments system in June this year offers a 'Vision for the payments system': 

A modern, world class and efficient payments system that is safe, trusted and accessible, and enables greater competition, innovation and productivity across the economy. 

Principles to guide the future direction of the payments system: Trustworthiness, Accessibility, Innovation, and Efficiency

Key priorities and supporting initiatives: 

1) Promoting a safe and resilient system • Reducing the prevalence of scams and fraud • Strengthening defences against cyber attacks • Supervising systematically important payment systems 

2) Updating the payments regulatory framework • Implementing changes to the Payment Systems (Regulation) Act 1998 (PSRA) • Establishing a new payments licensing framework • Promoting competition by facilitating transparent access to payment systems • Enabling greater collaboration between payment system regulators • Reducing small business transaction costs 

3) Modernising payments infrastructure • Phasing out cheques • Upgrading systems • Maintaining access to cash 

4) Uplifting competition, productivity and innovation across the economy • Aligning payments system objectives and the Consumer Data Right (CDR) framework • Supporting the broader use of Digital ID • Uplifting digital and technological skills • Building public trust and confidence and supporting adoption of artificial intelligence (AI) 

5) Australia as a leader in the global payments landscape • Creating a regulatory environment that attracts and enables innovation • Facilitating cross border payments • Exploring the policy rationale for a Central Bank Digital Currency (CBDC) in Australia

The Plan notes 

The Australian payments system is increasingly digitised due to consumer preferences for frictionless transactions and evolving technology. Card based payments make up about 75 per cent of non cash retail payments, with 25 per cent of that volume coming via mobile wallets. ... 

As the Australian payments system continues to evolve and consumers’ needs change, there has been a shift away from traditional payment methods. There has been an almost 90 per cent decline in cheque volumes in the last 10 years, with cheques now comprising only 0.2 per cent of non cash retail payments in Australia. Cash use has also reduced significantly, with the share of retail payments made in cash falling from 27 per cent in 2019 to 17 per cent in 2022. However, cash in circulation is rising, indicating Australians’ demand for cash for the purposes of storing value, potentially for uncertain circumstances, remains high. ... 

The Government intends to enable greater choice for Australians in the way they transact for goods and services. The Government will focus on removing legislative and other barriers that entrench payment by cheques as well as phasing out government cheque usage by the end of 2028, with the eventual wind down of the cheques system in Australia by no later than 2030. This will be subject to further consultation with industry and stakeholders to determine the feasibility of this end date and an appropriate transition plan. 

There has been a rapid decline in the use of cheques in the past 10 years, which now comprise only 0.2 per cent of non cash payments in Australia. This has been driven by growing availability of card and electronic payments and consumer preferences for more efficient and low cost digital payments. This consumer led migration is consistent with the global trend towards digitisation, with some countries successfully managing the complete closure of their cheque systems. 

As cheque use declines, the per transaction cost of supporting the cheque system will continue to increase. Banks and financial institutions are taking steps to withdraw from the cheque system, such as ceasing issuance of cheque books for new customers. At the same time, many merchants are ceasing to accept cheques as a means of payment. 

Although cheques represent a narrow segment of our payments system today, they continue to be issued in relatively large numbers by some corporates and Government entities. They also continue to be used by certain cohorts of the population, particularly older Australians and those living in regional or rural areas or with limited digital proficiency or connectivity. Some types of businesses also rely more heavily on cheques (for example, charities and other not for profit organisations who take a large proportion of donations through cheques from their donors). As an advanced economy with well developed digital insfrastructure, Australia is well placed for an eventual withdrawal from the cheque system. Many stakeholders have indicated a strong desire to end the cheque system, with habit and legislative barriers being the most cited reasons for its continued use. However, with the increased adoption of faster, safer, and more seamless technology, there are now strong and readily accessible payment alternatives to cheques. These alternatives will also help deliver greater financial inclusion outcomes such as more clear and targeted customer communication and real time access to information to assist those cohorts of the community that are more susceptible to vulnerability. Transitioning away from cheques will help achieve greater efficiency, productivity and security in Australia’s payments system. It will remove barriers that entrench specific payment methods and promote payment neutrality, giving Australians greater choice in choosing how they pay. 

However, the Government is committed to ensuring that all Australians are supported in a transition away from cheque use. As banks and financial institutions continue to reduce cheque related services and parts of the economy cease accepting cheques as a way to pay, it is important to ensure that the transition is appropriately managed. The Government has a role to play in managing the transition away from the cheques system, coordinating a whole of economy approach in a manner that provides appropriate support, and minimises adverse impacts to consumers and businesses. 

In the short term, the Government will consult with industry and stakeholders to identify challenges, develop solutions and supports for affected users, and implement the changes required to ultimately close the cheques system. This would involve staged reforms, rather than a single change at the end of the proposed period. To this end, four main workstreams have been identified for ensuring a smooth transition away from the cheques system.

• The Government will work to reduce Commonwealth usage of cheques by working with agencies and departments with high cheque usage to develop a transition plan away from reliance on cheques. This includes identifying products, such as health services or tax payments, that will need viable and alternative forms of payment with the same level of reach and convenience as cheques. 

• The Government will support industry in promoting the use, and removing barriers to adoption of, alternatives to cheque products, especially for institutional and commercial uses of cheques that cannot be serviced through existing digital channels. Industry’s development of education and outreach programs to assist cohorts that are greater users of cheques will also be required. 

• The Government will explore changes to Commonwealth legislation that entrench the use and acceptance of cheques with a view to amending legislation. The Government aims to ensure that legislation mandating cheque use will become payment neutral in the future. As part of this process, the Government will consider the ongoing role of the Cheques Act 1986. 

• The Government will also work with state and territory counterparts to encourage a coordinated approach to transitioning away from the cheques system. This includes encouraging state and territory governments to amend legislation that mandates the usage of cheques in certain industries such as gaming and insurance. ...

Cash is an important payment method for certain groups in Australia and plays a vital role in their inclusion in the wider economy. Cash is still widely accepted as a means of payment by merchants, used as a store of value, and provides resilience to the payments system during outages where digital forms of money cannot be used. 

The use of cash as a method of payment has declined substantially in the last decade and this trend accelerated during the COVID 19 pandemic. According to the Reserve Bank’s Consumer Payments Survey, 13 per cent of payments were made using cash in 2022 whereas, in 2019, this share was 27 per cent. At the same time, financial institutions are reducing the number of branches and ATMs they operate across the country. APRA reports that over the 5 years to June 2022, bank branches have declined by 30 per cent in major cities, and 29 per cent in regional and remote areas. The number of ATMs in Australia have declined by approximately 25 per cent since the peak in 2016. 

The Government understands the important role cash still plays in our payments system and supports Australians having continued access to cash. The Government will work with the relevant agencies across the public sector and with industry to ensure that Australia has a sustainable cash distribution network that maintains adequate access to cash. Currently, Australians have good access to cash services with an estimated 95 per cent of the population living within around 5km of a cash access point as of June 2022. However, there are some communities in Australia that are facing a reduction in cash services more acutely, particularly those in regional and remote areas. These Australians typically have to travel further to access cash and are particularly vulnerable to the removal of cash access points, bank branches and cash distribution facilities. The declining transactional use of cash has led to a per unit increase in costs in distributing cash across the country. Australia’s two largest Cash in Transit (CIT) service providers, Armaguard and Prosegur, have responded to these financial pressures in recent years by downsizing or closing some facilities and reducing the frequency of CIT services. 

More recently Armaguard and Prosegur have applied for ACCC authorisation to merge their cash distribution and management, device monitoring and maintenance and ATM businesses to help create a more efficient and financially sustainable business. Merger authorisation includes both a competition assessment and public benefits assessment. The ACCC is expected to make a decision by 14 June 2023. The applicants have submitted that the merging of the businesses could help operations by achieving synergies. These synergies will better enable continued provision of CIT services across Australia in an environment where both providers reported incurring heavy financial losses due to declining demand. 

Regardless of the decision made by the ACCC on this application, the Government will closely monitor developments regarding access to cash for Australians, in close consultation with relevant regulators. This is to ensure that as cash reliance declines and the the CIT industry undergoes transition, the market can operate both efficiently and fairly, that the potential for disruptions that could impact cash access are identified early and minimised, and that Australians continue to have access to cash. 

The RBA is working to reduce impediments to improved efficiencies in cash distribution operations. This includes introducing transparent and standard contractual arrangements for the distribution of banknotes by the RBA as well as the establishment of a banknote distribution industry forum to facilitate more timely changes to make the distribution of cash more effective, efficient, resilient and sustainable. The Government notes the Senate Standing Committees on Rural and Regional Affairs and Transport Inquiry into Bank Closures in Regional Australia, in particular its investigation of the effect bank closures and the removal of face to face cash services are having on cash access. The Senate inquiry will report by 1 December 2023. 

The Government notes industry’s role in supporting the Bank@Post network which provides access to banking services through Australia Post outlets, including in 1,800 locations in rural and remote areas. The use of this network is supporting communities at a time of transition towards greater use of electronic payments, but may not fully address issues around access to cash for all Australians. 

The Government also notes work being done overseas to maintain access to cash and ensure infrastructure supporting cash access and availability is effective, sustainable and resilient. Initiatives in the UK include widespread adoption of cash at point of sale without a purchase, ensuring cash facilities are available in all communities and that there is broad coverage of free to use ATMs. ...

The Plan articulates the Regulatory Framework

The regulatory framework for Australia’s payments system is determined by the Government, regulators, and key industry bodies. .. 

The Government 

The Government designs and, through the Parliament, implements laws that determine the regulatory architecture for the payments system. Besides its rule making function, the Government is uniquely positioned to provide high level strategic direction for the payments system due to its role in setting system wide policy. 

The Government has a role in setting the overarching direction for the payments system by influencing the focus of agencies and regulators. A clear overarching direction from Government is critical for the payments system as the range of activities undertaken by businesses in the payments system cuts across the remit of several regulators. This feature of the payments system necessitates policy and regulatory responses to be coordinated and aligned. 

Regulators 

The Reserve Bank of Australia (RBA) and the Payments System Board (PSB) 

The RBA is the primary payments system regulator, covering the wholesale, retail and commercial payments systems. The RBA’s payments system policy is determined by the PSB, which sits within the RBA. 

The RBA’s regulatory powers are set out under the Payment Systems (Regulation) Act 1998 (PSRA), Payment Systems and Netting Act 1998, and Cheques Act 1986. In determining the RBA’s payments system policy, the PSB must exercise its responsibility in a way that best contributes to: • controlling risk in the financial system; • promoting the efficiency of the payments system; and • promoting competition in the market for payment services, consistent with the overall stability of the financial system. 

The responsibilities of the PSB are broad, covering both the high value wholesale payments system and retail and commercial systems, which have high transaction volumes but are of lower value. 

The Payment Systems (Regulation) Act 1998 (PSRA) is the primary regulatory framework governing payment systems. It authorises the RBA to impose regulatory requirements on participants in designated payment systems where it is in the public interest to do so. Intervention and regulatory action is generally preceded by industry consultations to explore non regulatory solutions first. Regulation is developed by the RBA closely with industry and relevant parties. 

Australian Prudential Regulation Authority (APRA) 

APRA is responsible for prudential regulation, including the licensing of Authorised Deposit taking Institutions (ADIs). APRA, alongside the RBA, also has the power to authorise the provision of Purchased Payment Facilities (PPFs), which are facilities that store funds for the purpose of making payments. 

Specifically, APRA supervises providers of PPFs that have payment obligations of over $10 million (with deposit like features), which are redeemable in the Australian currency and are ‘widely available’ (more than 50 users). The provision of PPFs is treated as ‘banking business’ and providers are regulated as a special class of ADI. 

Australian Securities and Investments Commission (ASIC) 

ASIC’s role in regulating the payments system includes licensing financial service providers and overseeing the ePayments Code to ensure consumer protection for electronic payments. ASIC licenses entities that deal in a financial product. Most relevantly for payment service providers, ‘non cash payment’ facilities are a defined type of financial product under the Corporations Act 2001. 

A person makes a non cash payment if they make payments, or cause payments to be made, other than through the physical delivery of Australian or foreign currency in the form of notes or coins. ASIC updates the contents of the ePayments Code and undertakes targeted compliance. The currently voluntary Code provides important consumer protections in relation to electronic payments, including ATM, eftpos, credit and debit card transactions, online payments, and internet and mobile banking. The Code provides key consumer safeguards and sets out the circumstances in which a financial institution will be liable to reimburse customers who lose money to an ‘unauthorised transaction’. 

Australian Transaction Reports and Analysis Centre (AUSTRAC) 

AUSTRAC has a role as a payments regulator under Australia’s Anti Money Laundering and Counter Terrorism Financing (AML/CTF) Act 2006. AUSTRAC regulates ‘designated financial services’ under the AML/CTF Act and imposes reporting requirements on entities in the financial system that provide those services. Designated financial services required to register with AUSTRAC include remittance services, digital currency token services, and the issuance of stored value cards that have stored value above a certain threshold. 

Australian Competition and Consumer Commission (ACCC) 

The ACCC has a wide remit on competition, consumer, and merger matters – as dictated by the Competition and Consumer Act 2010. In the payments system, the ACCC generally uses its powers to investigate potentially anti competitive behaviour, while also playing a role in assessing and authorising mergers (as seen with the eftpos, BPAY and NPPA merger in 2021). 

The ACCC is also progressing the Digital Platform Services Inquiry report which is being delivered in bi annual interim reports until 2025. The 5th Interim Report released in November 2022 made recommendations to address consumer and competition issues, including recommending a new competition framework for designated digital platforms to be subject to service specific codes. Treasury consulted on these recommendations and the government is considering their response to the report. The next interim report is due to be submitted to the Treasurer in September 2023 and will consider potential competition and consumer issues and benefits from the expanding ecosystem of digital platform providers in Australia.