Rule Of Law

'The Origins of “The Rule of Law”' by Jeremy Kessler in (2025) 87  Law and Contemporary Problems comments  

This Article offers a novel account of the origins of “the rule of law” in the English-speaking world. The phrase itself likely entered the language as a literal translation of the Latin regula juris. Prior to the early seventeenth century, however, the phrase appears to have been used exclusively to refer to the specific legal rule or maxim most relevant to the resolution of a particular kind of dispute. The more general and abstract use of the phrase – to refer to an ideal of political morality or an ideal type of governance – first appeared in the public record around 1610. It did so in the context of English common lawyers’ criticism of royal economic regulation limiting commodity production and circulation. The ideal type of governance that these common lawyers had in mind was the rule of common-law rules. They believed that the “chief subject or object” of these rules was the freedom of Englishmen to dispose of their possessions and professional skills as they wished, and to profit thereby. The earliest advocates of “the rule of law” thus found themselves in the vanguard of a cross-class project that sought to privilege the equal liberty of commodity exchangers over other long-recognized political, religious, and economic entitlements. Consequently, the original rule of law – the rule of common-law rules – came with a set of libertarian and egalitarian expectations, in addition to expectations of publicity, clarity, regularity, and so on. 

When A.V. Dicey popularized “the rule of law” in the late nineteenth century, he claimed to be restating age-old English common sense. While this claim exaggerated the continuity and coherence of English legal history, Dicey’s conception of the rule of law did indeed track the original, early-seventeenth-century conception in significant respects, including its libertarianism, its market-oriented egalitarianism, and its commitment to the supremacy of the common law. For both Dicey and his early modern precursors, the key to the equal liberty of English subjects was the centrality of common law courts to the settlement of disputes, whether between private parties, or between private parties and public officials. Contemporaneous critics of Dicey’s conception thus rightly understood him to be defending a legal worldview that dated to the early days of competitive capitalism. Yet the appeal of that worldview persists. 

In the middle of the twentieth century, Anglophone legal philosophers did craft an alternative: a more austere and generalizable conception of the rule of law, one freed from the libertarian, egalitarian, and common-law sensibilities of Dicey and his precursors. While an intellectual coup, this minimalist conception has proven unsatisfying not only to legal practitioners but also to a growing number of legal theorists, including some of the minimalist conception’s erstwhile defenders. For these critics, Jeremy Waldron foremost among them, the minimalist conception fails to capture common-sense understandings of both law and the rule of law. But why does the contemporary common sense to which Waldron appeals so closely echo the concerns of common lawyers in 1610? 

This Article argues that the answer lies in the limited yet significant socio-economic context shared by early modern common lawyers, late nineteenth century jurists, and contemporary legal theorists. That shared context is the dominance of commodity exchange, which has characterized capitalist societies since their emergence in sixteenth and seventeenth century Europe. The common lawyers who first used the phrase “the rule of law” to denote an ideal of political morality were responding to a profound and lasting social and economic transformation. That transformation – the penetration of commodity exchange into ever more domains of social life – gave rise to demands for the rule of law four hundred years ago, and continues to shape discourse about the rule of law today.

Surveillance

'Big brother: the effects of surveillance on fundamental aspects of social vision' by Kiley Seymour, Jarrod McNicoll and Roger Koenig-Robert in (2024) 1 Neuroscience of Consciousness argues 

Despite the dramatic rise of surveillance in our societies, only limited research has examined its effects on humans. While most research has focused on voluntary behaviour, no study has examined the effects of surveillance on more fundamental and automatic aspects of human perceptual awareness and cognition. Here, we show that being watched on CCTV markedly impacts a hardwired and involuntary function of human sensory perception—the ability to consciously detect faces. Using the method of continuous flash suppression (CFS), we show that when people are surveilled (N = 24), they are quicker than controls (N = 30) to detect faces. An independent control experiment (N = 42) ruled out an explanation based on demand characteristics and social desirability biases. These findings show that being watched impacts not only consciously controlled behaviours but also unconscious, involuntary visual processing. Our results have implications concerning the impacts of surveillance on basic human cognition as well as public mental health. .. 

In recent years, we have seen an exponential increase in human surveillance. We now live in a world with closed-circuit television (CCTV) in public spaces, trackable mobile devices, and the monitoring of our activities through artificially intelligent technology and the ‘Internet of Things’ (the interconnected system of our devices and sensors collecting and sharing data through the internet). Data on what we do, what we say, and where we go can be monitored and made available to third parties (Zuboff 2015, Cecez-Kecmanovic 2019). With the advent of emerging neurotechnology, even our mental privacy is at risk (Farahany 2023). Despite this proliferation of surveillance technology, there is limited research on its effects on human psychology, including fundamental capacities like the basic perceptual processing of our sensory environment. 

Literature available on the topic of human surveillance and being watched suggests that it elicits changes in overt behaviour. For instance, a large body of evidence on ‘audience effects’ suggests people act in a more prosocial manner when they believe they are being watched. When people think their behaviour is monitored, they are more giving (Hoffman et al. 1996, Haley and Fessler 2005, Pfeiffer and Nowak 2006, Rigdon et al. 2009, Powell et al. 2012, Nettle et al. 2013, Bateson et al. 2015), more likely to share (Baillon et al. 2013, Oda et al. 2015), and less likely to steal, cheat, litter, or direct their gaze to provocative images (Tourangeau and Yan 2007, Zhong et al. 2010, Risko and Kingstone 2011, Francey et al. 2012, Nettle et al. 2012, Nasiopoulos et al. 2015). It is argued that these behavioural changes act to uphold the reputation of the individual and protect from negative social consequences (Izuma 2012, Nettle et al. 2013, Conty et al. 2016). 

In addition to the changes in social behaviour, a feeling of being watched commonly invokes discomfort in people (Panagopoulos and Van Der Linden 2017) and increases vigilance, self-consciousness, and the fight-or-flight response (e.g. an increase in heart rate and skin conductance) (Kleinke and Pohlen 1971, Nichols and Champness 1971, Gale et al. 1975, Putz 1975, Reddy 2003, Conty et al. 2010b, Helminen et al. 2011, Baltazar et al. 2014). It has also been shown that surveillance in the workplace induces negative effects on productivity (Gagné and Deci 2005), likely due to impacts on attention and working memory (Senju and Hasegawa 2005, Conty et al. 2010a, Risko and Kingstone 2011, Wang and Apperly 2017, Colombatto et al. 2019). Interestingly, it seems to be an implied social presence rather than a true presence of the observer that is important here, with simple photos of watching eyes or a mere belief that someone is watching eliciting the behavioural changes (Putz 1975, Haley and Fessler 2005, Bateson et al. 2006, Burnham and Hare 2007, Rigdon et al. 2009, van Rompay et al. 2009, Risko and Kingstone 2011, Lawson 2015, Nasiopoulos et al. 2015, Colombatto et al. 2019). 

While the effects of surveillance on social behaviour are well-documented, it is unclear how being watched impacts more fundamental capacities not subject to explicit, overt, and conscious control of the individual. For instance, being able to rapidly detect when someone or something is looking at you is a profound and hardwired human faculty requiring specialized neural mechanisms that operate largely outside of conscious control (Brothers 1990, Perrett and Emery 1994, Baron-Cohen 1995, Emery 2000, Calder et al. 2007, Hietanen et al. 2008, Senju and Johnson 2009, Bayliss et al. 2011, Burra et al. 2013, Carlin and Calder 2013). In fact, this heightened sensitivity to another’s gaze is thought to underlie a feeling of being watched that can be experienced in the absence of any surveillance and commonly reported in the population (Freeman et al. 2005, Taylor et al. 2009, Bebbington et al. 2013, Harper and Timmons 2021). Given the adaptive significance, we hypothesize that these mechanisms are further engaged when one knows they are being watched. Indeed, evidence from clinical research suggests that patients with schizophrenia who experience persecutory delusions (i.e. erroneous beliefs about being watched) show increased perceptual sensitivity to the self-directed gaze of others (Rosse et al. 1994, Hooker and Park 2005, Tso et al. 2012, Langdon et al. 2017). 

In the current study, we test whether being watched influences perceptual processing of the sensory environment, namely the processing of eye gaze. Specifically, we ask whether being monitored makes the visual system more sensitive to this essential visual and social cue. Using a technique known as breaking continuous flash suppression or b-CFS (Tsuchiya and Koch 2005), we temporarily suppressed photographs of faces from visual awareness. The time the face takes to break through the suppressive mask and become visible to the participant is typically treated as an index of its salience. In previous experiments using b-CFS, it has been shown that the visual system prioritizes the detection of faces with direct gaze over faces with averted gaze, suggesting visual cues used to discriminate eye gaze direction are preconsciously processed by the visual system (Stein et al. 2011, Yokoyama et al. 2013, Seymour et al. 2016). In the current study, we examined whether being watched influenced the speed at which these gaze signals reach conscious awareness by means of a detection task (i.e. stimulus on the left or right). We hypothesized that if being surveilled facilitates basic sensory processing of eye gaze, then participants who had evidence of being monitored during the task (i.e. experiencing the presence of CCTV) would detect self-directed gaze signals faster than participants who did not.

Meta Settlement

Amid excitement about today's announcement of a settlement between Meta Inc and the OAIC privacy and regulatory analysts might wonder whether Meta got off lightly: a trivial amount and the ending of litigation in the Federal Court. 

The Enforceable Undertaking reads

1. Background 

1.1. This enforceable undertaking is given by Meta Platforms, Inc. (Meta) to the Australian Information Commissioner (Commissioner) under section 114 of the Regulatory Powers (Standard Provisions) Act 2014 (Regulatory Powers Act) in conjunction with the discontinuance of Federal Court of Australia Proceeding No NSD 246 of 2020 (the Civil Penalty Proceedings) against all Respondents, on a without prejudice basis and without any admission of liability. The Civil Penalty Proceedings followed investigations by the OAIC concerning the Cambridge Analytica Incident, the facts of which are described below together with a background to the Civil Penalty Proceedings. 

1.2. Meta offers this enforceable undertaking in its capacity as the provider of the Facebook service to users in Australia from 14 July 2018 onwards. Prior to 14 July 2018, and during the period in which the Cambridge Analytica Incident described below occurred, Meta Platforms Ireland Limited provided the Facebook service to users in Australia. 

The Cambridge Analytica Incident 

1.3. In April 2010, Meta launched the Graph Application Programming Interface (Graph API). The Graph API allowed third party apps to access, with permission from users who installed the third party app using the Facebook Login tool, certain information, e.g., their name, birthdate, etc., from installers of the app and their friends (if both users’ privacy settings allowed it). Under the first version of Graph API (Graph API Version 1), which was in place from 21 April 2010 to 30 April 2015 for pre-existing apps, third party apps could request access to certain information (1) from the installing user’s account; and (2) that the installing user’s Facebook friends had chosen to share with the installing user. The Graph API would provide the information sought on an automated basis, so long as the installing user authorised the request, the user and their friends had not opted out of the Facebook platform (which would allow the user to opt out of providing access to information to third party apps), subject to the privacy and application settings of the user and their friends. 

1.4. In November 2013, Dr Aleksandr Kogan, a professor at Cambridge University, launched a third party app relevantly known as “thisisyourdigitallife” (the Life App) using Graph API Version 1. Before doing so, Dr Kogan agreed to Meta’s terms of service and its terms for developers of third party apps using the Facebook platform and the Graph API. The Life App, which presented itself to users as a quiz app, requested via a dialog box at the time of installation, installing users’ permission to access certain categories of their information as well as certain categories of information that their Facebook friends shared with them. 

1.5. In December 2015, upon learning from media reports that Dr Kogan and his company, Global Science Research Limited (GSR), may have been transferring user information to Cambridge Analytica (UK) Ltd, a British data analytics company, and its parent company, Strategic Communication Laboratories (together, SCL) (in contravention of contractual obligations owed to Meta), Meta launched an investigation and terminated the Life App’s use of the Graph API and access to Facebook Login. 

1.6. Based on this investigation, Meta concluded that Dr Kogan and GSR had violated its terms in several respects. Meta subsequently obtained certifications that Dr. Kogan, GSR, and other third parties (including SCL) with whom Dr Kogan had shared user information had deleted the information. The information that was transferred to SCL related primarily to users in the United States. Neither Meta, nor Meta Platforms Ireland Limited, are aware of any evidence that Dr Kogan provided SCL with information on Facebook users from Australia. 

The OAIC’s Investigation and the Civil Penalty Proceedings 

1.7. On 5 April 2018, the Commissioner initiated an investigation under section 40(2) of the Privacy Act 1988 (Cth) (Privacy Act) in relation to reports that Australian users’ information may have been improperly shared with Cambridge Analytica (UK) Ltd via the Life App. During the investigation, which extended to Meta, Meta Platforms Ireland Limited and Facebook Australia Pty Ltd, the Commissioner raised concerns that Meta may have interfered with the privacy of Australian individuals in contravention of Australian Privacy Principles (APPs) 1.2, 5, 6, 10 and 11 of the Privacy Act (Investigation). 

1.8. On 9 March 2020, the Commissioner commenced the Civil Penalty Proceedings and concluded the above investigation. In the Civil Penalty Proceedings, as further particularised in the Amended Statement of Claim dated 2 June 2023, the Commissioner alleged that Meta’s systems and practices raised concerns about the protection of personal information of Australian Facebook users in relation to the Cambridge Analytica incident, and that, based on its Investigation, Meta and Meta Platforms Ireland Limited may have contravened section 13G of the Privacy Act through serious or repeated breaches of APPs 6.1 and 11.1. The Commissioner alleged that, throughout the time the Life App was available to Facebook users, approximately: 1.8.1. 53 Facebook users located in Australia installed the Life App; and 1.8.2. 311,074 Facebook users located in Australia could have had their personal information requested by the Life App as friends of installing Facebook users. 

2. Meta’s Response to the Cambridge Analytica Incident 

2.1. Meta acknowledges: 2.1.1. that under the Privacy Act, Meta must not do an act, or engage in a practice, that breaches an APP; 2.1.2. the Commissioner’s concerns identified in paragraphs 1.7 and 1.8. 

2.2. Meta represents, and the Commissioner acknowledges, that: 2.2.1. Meta no longer permits third party app developers to access from Meta an installing user’s friend’s information, unless that friend has also installed the app and authorised it to have access to that information; 2.2.2. since the period relevant to the Civil Penalty Proceedings, being 12 March 2014 to 1 May 2015 (Relevant Period), Meta has dedicated significant and increased resources to monitoring third party apps and enforcing Meta’s terms and policies; 2.2.3. since the Relevant Period, Meta substantially reduced the number of information fields available that third party app developers (via Facebook Login) may request an installing user’s permission to access, examples of information fields that have been removed include: (i) the installing user’s friends’ information, excluding the circumstances specified in paragraph 2.2.1; and (ii) the installing user’s religion, political views and relationship details; 2.2.4. since the Relevant Period, Meta has continued to implement granular data permissions processes to allow a user who installs a third party app to decide which categories of certain information they will share with the third party app; and 2.2.5. Meta monitors the compliance of third party app developers of consumer apps with Meta’s Platform Terms through measures including, but not limited to, ongoing manual reviews and automated scans, and regular assessments, audits, or other technical and operational testing at least once every 12 months. 

3. Meta’s Enforceable Undertaking to the Commissioner 

3.1. Meta offers this enforceable undertaking to the Commissioner under section 114 of the Regulatory Powers Act, including to address the concerns in paragraphs 1.7 and 1.8. 

3.2. This undertaking comes into effect when: 3.2.1. it is executed by Meta; and 3.2.2. this undertaking, so executed, is accepted by the Commissioner (the Commencement Date). 

3.3. This undertaking ceases to have effect upon the completion of the Payment Program (as defined at paragraph 4.1 below). 

4. Undertaking to Establish Payment Program 

4.1. Meta undertakes to implement a payment program open to Eligible Australian Users in recognition of the Commissioner’s concern that those users may have suffered loss or damage as a result of interferences with their privacy arising from the conduct the subject of the Commissioner’s concerns as identified in paragraphs 1.7 and 1.8 above in accordance with Parts 5 and 6 of this enforceable undertaking and fulfill each of its obligations set out in Parts 4 to 7 of this enforceable undertaking (Payment Program). 

4.2. Meta undertakes to: 4.2.1. engage an independent third party administrator (the Administrator); 4.2.2. direct the Administrator to administer the Payment Program in accordance with: 4.2.2.1. Parts 5 and 6 of this enforceable undertaking; and 4.2.2.2. any instructions for the Payment Program given to the Administrator by Meta (Scheme Instructions); and 4.2.3. complete the Payment Program within 2 years from the Commencement Date or such longer period as agreed between the Commissioner and Meta. 

5. Eligible Australian Users 

5.1. A person is an “Eligible Australian User” if the person: 5.1.1. held a Facebook Account at any time during the period of 2 November 2013 and 17 December 2015 ( Eligibility Period) 5.1.2. was located in Australia for 30 days or more during the Eligibility Period; and 5.1.3. during the Eligibility Period, either: 5.1.3.1. installed the Life App using Facebook Login; or 5.1.3.2. did not install the Life App but was Facebook friends with another Facebook user who had installed the Life App using Facebook Login. 

5.2. Subject to paragraphs 5.3 to 5.5, an Eligible Australian User can register with the Administrator as a “ Claimant ” under the Payment Program if they submit to the Administrator within the registration period prescribed by the Administrator (Registration Period) a valid Registration Form and evidence in such form as prescribed, verifying that the person: 5.2.1. is an Eligible Australian User under paragraph 5.1; 5.2.2. holds a genuine belief that as a direct consequence of the conduct the subject of the Commissioner’s concerns identified in paragraphs 1.7 and 1.8, they have suffered loss or damage, being either: 5.2.2.1. specific economic and/or non-economic loss and/or damage (beyond a generalised concern or embarrassment) (Class 1); or 5.2.2.2. a generalised concern or embarrassment (Class 2). 

5.3. The Registration Form will be prepared by the Administrator in consultation with Meta and may set the standard of verification and evidence that a Claimant must provide for each eligibility criterion by the end of the Registration Period, including by way of statutory declaration or identity verification as considered appropriate. 5.3.1. For paragraphs 5.1.3 and 5.2.2.2, Meta must direct the Administrator to not require more than a valid statutory declaration. 

5.4. Notwithstanding paragraphs 5.2 and 5.3, the Administrator may, in its absolute discretion, determine that a person will not be: 5.4.1. an Eligible Australian User where the Administrator is unable to verify that the person meets the requirements of Part 5 of this enforceable undertaking based on the information available to the Administrator; 5.4.2. a Claimant where the Administrator determines that: 5.4.2.1. the person provided the Administrator with false information, or that the person’s registration is otherwise fraudulent; 5.4.2.2. the person has previously registered as a Claimant; 5.4.2.3. if the person registered to receive payment from Meta, or any of its affiliated or related entities, in a proceeding, investigation or other legal action in any jurisdiction outside of Australia that relates to, or arose out of, the factual background detailed in paragraphs 1.3 to 1.6 of this enforceable undertaking, such as the US settlement of In re: Facebook, Inc. Consumer Privacy User Profile Litigation, Case No. 3:18-md-02843-VC (N.D. Cal.); or 5.4.2.4. the person is not otherwise eligible in accordance with the Scheme Instructions. 

5.5. For the avoidance of any doubt, a person: 5.5.1. is not a Claimant if the person has not registered in accordance with paragraphs 5.2 and 5.3 during the Registration Period; and 5.5.2. cannot register as a Claimant in both Class 1 and Class 2. 

6. Payment Program 

6.1. Meta undertakes to, within 60 days of the Commissioner filing a Notice of Discontinuance in the Civil Penalty Proceedings, pay an amount of $50 million (the Contribution Amount) to the Administrator for the Administrator to use to make payments to Claimants (Payments) in accordance with paragraphs 6.2 to 6.9. 

6.2. Following the payment of the Contribution Amount by Meta in accordance with paragraph 6.1, Meta will: 6.2.1. notify the Commissioner that the Contribution Amount has been paid to the Administrator; 6.2.2. direct the Administrator to make information available on a website established by the Administrator regarding the Payment Program, including how Eligible Australian Users can register with the Administrator as a Claimant; 6.2.3. use reasonable best efforts to: 6.2.3.1. identify, based on Meta’s available records, persons that may be Eligible Australian Users; and 6.2.3.2. facilitate electronic notice of the Payment Program to those persons; 6.2.4. direct the Administrator to take reasonable steps to publicise the Payment Program within Australia. 

6.3. The Payment that a Claimant receives will depend on whether the Administrator determines that the Claimant is a Class 1 or Class 2 Claimant. 

6.4. In performing its obligations under Parts 5 and 6, the Administrator will apply any Scheme Instructions, including any cap to apply to Payments made to Claimants and the principle that all Class 2 Claimants be paid the same amount. 

6.5. Subject to the Scheme Instructions, following the end of the Registration Period, the Administrator will: 6.5.1. evaluate and determine, using evidence available to the Administrator at that time, in the Administrator’s absolute discretion whether: 6.5.1.1. a person is an Eligible Australian User (in accordance with Part 5); and 6.5.1.2. if a person registers as a Claimant in Class 1, the person has provided sufficient supporting evidence to substantiate their claim that they have suffered loss or damage in Class 1; 6.5.2. determine the number of Claimants in each of Class 1 and Class 2; 6.5.3. commence the process for determining the Payment that each Class 1 and Class 2 Claimant is entitled to receive, in accordance with this Part 6; and 6.5.4. notify Meta that the process referred to in paragraph 6.5.3 above has begun, at which point Meta will within 24 hours notify the Commissioner thereof. 

6.6. The Scheme Instructions will provide for the Administrator to include a timely internal review avenue for: 6.6.1. any decision by the Administrator to reject a Claimant’s Class 1 registration and allocate the Claimant to Class 2; and 6.6.2. assessment of any Payment amount that is to be made to a Claimant in Class 1. 

6.7. Following the conclusion of the process in 6.5, in accordance with paragraphs 6.3 and 6.4, the Administrator will: 6.7.1. finalise its determination including any internal review of any Payment that is to be made to a Claimant in either Class 1 or Class 2; 6.7.2. once all determinations are completed in accordance with paragraph 6.7.1, notify Meta of: 6.7.2.1. the total number of Claimants; and 6.7.2.2. the aggregated amount to be distributed to all Claimants; and 6.7.3. make a timely Payment to each such Claimant. 

6.8. Following receipt of the notification set out at paragraph 6.7.2, Meta will within 24 hours notify the Commissioner thereof. 

6.9. If the total aggregate sum of Payments made to Claimants under paragraph 6.7 is less than the Contribution Amount, Meta will direct the Administrator to pay the residual amount to the Australian Government’s Consolidated Revenue Fund. 

6.10. If, when performing its obligations under Parts 5 and 6 of this enforceable undertaking, the Administrator informs Meta that it will not be able to comply with any deadline specified in this undertaking, Meta will: 6.10.1. promptly inform the Commissioner, and the OAIC, of the extent and reasons for the delay; 6.10.2. in consultation with the Administrator, determine a date by which the Administrator will reasonably be able to complete the actions specified; 6.10.3. propose the modified date(s) to the Commissioner and seek to agree any necessary extension; and 6.10.4. cause the Administrator to notify Claimants of the delay and the amended date(s) agreed with the Commissioner (if applicable). 

7. Compliance 

7.1. Subject to any confidentiality obligations owed by Meta, the OAIC may request in writing from time to time and Meta will provide to it, documents and information that are reasonably necessary for the purpose of assessing Meta’s compliance with Parts 4 to 6 of this enforceable undertaking. 

7.2. Meta will use its best endeavours to provide documents and information in response to any request under paragraph 7.1 within 14 days of the request. 

8. Other matters 

8.1. Meta acknowledges that the Commissioner: 8.1.1. will publish this enforceable undertaking as well as a summary of the undertaking, on the OAIC website; 8.1.2. may issue a statement on acceptance of this enforceable undertaking referring to its terms and to the circumstances which led to the Commissioner’s acceptance of the undertaking; and 8.1.3. may from time to time publicly refer to this enforceable undertaking, including any breach of this enforceable undertaking by Meta. 

8.2. Meta acknowledges that: 8.2.1. The Commissioner’s acceptance of this enforceable undertaking does not preclude the Commissioner’s power to investigate, power not to investigate further, or the exercise of any of the Commissioner’s functions under the Privacy Act in relation to: (i) the representative investigation opened by the Commissioner under sub-section 40(1) of the Privacy Act on 21 October 2019 (referred to by the Commissioner using the reference number CP18/01262); or (ii) any contravention that concerns conduct that is outside the scope of the Civil Penalty Proceedings or Investigation. 8.2.2. If the Commissioner considers that Meta has breached this enforceable undertaking, the Commissioner may apply to the Federal Court or Federal Circuit Court to enforce the undertaking under s 115 of the Regulatory Powers Act. 

8.3. The Commissioner’s acceptance of this enforceable undertaking is not a finding that Meta has contravened the Privacy Act or the APPs. 

8.4. Meta gives this enforceable undertaking on a without prejudice basis, and without any admission of liability as to the matters raised in the Investigation or Civil Penalty Proceedings. Any representations made or acknowledgments given by Meta in this enforceable undertaking, whether express or implied, are made without prejudice or admission of liability. In giving this enforceable undertaking, neither Meta nor any of its affiliated or associated entities are precluded from taking any position or relying on any facts or factual statements in any legal or regulatory proceedings in Australia or in any other jurisdiction in relation to any matter that was within the scope of the Commissioner’s investigations referred to in paragraphs 1.7 and 8.2.1, the Civil Penalty Proceedings or which otherwise relate to the Cambridge Analytica Incident described at paragraphs 1.3 to 1.6. 9. 

Confidentiality 

9.1. The Commissioner acknowledges that information provided by Meta, or the Administrator, to the Commissioner and OAIC in accordance with this enforceable undertaking may contain sensitive commercial information (Commercial-in-confidence Information). 

9.2. The Commissioner acknowledges that any such Commercial-in-confidence Information is provided by Meta, or the Administrator, in confidence. 

9.3. The Commissioner: 9.3.1. will only publish or otherwise disclose any Commercial-in-confidence Information with Meta’s written agreement, unless otherwise required by law; and 9.3.2. will only use any Commercial-in-confidence Information for the purpose of exercising the Commissioner’s powers, or performing functions or duties in the Privacy Act.

Scenarios

'Corporate Scenarios: Drawing Lessons from History' by Madison Condon in (2025) 48 Seattle University Law Review 277 comments 

 As corporations are increasingly pressed to reveal information about their exposure to climate-related risks, they are often asked to undertake and disclose the outcome of “scenario analysis.” In this exercise, corpora- tions, including financial institutions, examine how their business would fare under different pathways the future may take. One oft-used scenario, for example, is the International Energy Agency’s “Net-Zero by 2050: A Roadmap for the Energy Sector.” This Essay presents a history of the use of scenarios as a corporate planning tool, particularly in the oil industry, arguing that it is key for understanding our present moment and the role of today’s scenarios in corporate governance. Scenarios are a useful tool, but who makes them matters. 

While it has been used as a corporate planning tool throughout the past five decades, the golden age of scenario analysis was in the 1970s. Royal Dutch Shell famously adopted scenario analysis as a means for navigating geopolitical risk, arguably helping it outperform peers through shocks like the 1973 oil crisis. By the end of the decade, most of the largest U.S. and multinational corporations employed scenario analysis, especially those in capital intensive businesses with long-term horizons, like the extractive industries. The adoption of scenario analysis represented a shift away from quantification—it was a technique for addressing unprecedented events and discontinuities that were challenging to capture with data. Planning through scenarios also represented an acceptance of the contingency of the future. 

In the era of climate change, scenario analysis, as a method for planning, has reemerged with a force, particularly in the financial sector. While initially pushed as a voluntary risk management tool by investors, assessment of climate risk via scenario analysis has now become a standard requirement of financial regulators around the world. In the United States, Treasury regulators ask large banks to undertake climate scenario analysis. The Federal Reserve unveiled its first climate scenario exercise in 2023. Large banks, in turn, have established Climate Scenario Design teams. 

Recently, the most widely used financial climate scenarios have come under attack for a host of methodological reasons, including their gross underestimation of climate damages. These critiques often focus on the quantification assumptions underlying the scenarios, as well as the influence and predominance of neoclassical economics at the expense of other disciplinary expertise, including climate science. This Essay joins the growing number of voices calling for scenario analysis to go back to its narrative and interdisciplinary roots. Some initial projects in this vein have started to appear, with expert roundtables producing alterative story-lines given snappy titles like “Meltdown” and “Green Phoenix,” resembling those of the 1970s. 

Scenario analysis is useful today for the same reasons it was initially developed: as an approach to planning under deep uncertainty, a way to synthesize expert knowledge across disparate fields, and a means of overcoming the limits of quantification. This Essay agrees that it will be an invaluable tool in the chaotic climate years to come. But the history outlined in this Essay also highlights how the act of predicting the future can work to shape it. Scenarios are political — not just technological or natural — projections of the future. What counts as “expert knowledge” and which experts are invited to participate in scenario building are fundamental first steps that drive scenario outcomes.Further, scenarios are performative in that the act of predicting the future can work to shape it. 

The Essay proceeds as follows. Part I presents a short history of scenario analysis as a corporate planning tool, a story more bizarre than most corporate histories. It then explains how corporate scenarios came to shape, rather than predict, global environmental governance. Part III turns to the proliferation of climate scenarios in the financial world and seeks to offer some lessons from their corporate history. Part IV concludes.

Capture

'Political Power and Market Power' (NBER Working Paper No. 33255, 2024) by Bo Cowgill, Andrea Prat and Tommaso Valletti comments 

Brandeis (1914) hypothesized that firms with market power will also attempt to gain political power. To explore this hypothesis empirically, we combine data on mergers with data on lobbying expenditures and campaign contributions in the US from 1999 to 2017. We pursue two distinct empirical approaches: a panel event study and a differential exposure design. Both approaches indicate that mergers are followed by large and persistent increases in lobbying activity, both by individual firms and by industry trade associations. There is also weaker evidence for an association of mergers with campaign contributions (PACs). We also find that mergers impact the extensive margin of political activity, for example, by impacting companies’ choice to establish their first inhouse lobbying teams and/or first corporate PAC. We interpret these results within an oligopoly model augmented with endogenous regulation and lobbying. 

Lobbying and campaign finance are essential elements of modern democracy (Ansolabehere et al., 2003; Cage, 2020; Grossman and Helpman, 1994). On the positive side, they can help elected officials gather information needed to make policy choices and can help voters become informed about candidates. However, they also raise legitimacy and fairness concerns, as agents with greater wealth can exercise greater influence over the political process. In this paper, we study the link between political influence and industry concentration. This link is important for two reasons. First, businesses represent the largest source of lobbying spend. According to data from OpenSecrets, businesses accounted for 87 percent of total lobbying spending in the US in 2019 and 36 percent of contributions from Political Action Committees (PACs) in the 2017/18 political cycle (where labor and ideological contributions also contributed a big share). 

Second, in recent years there has been rising concern that industrial concentration not only affects consumers directly through market power (potentially raising prices and reducing quantities), but also indirectly through politics (Wu, 2018; Zingales, 2017). Apprehension over the political influence of concentrated industries has appeared throughout the history of antitrust (e.g., Brandeis, 1914; Khan, 2017; Pitofsky, 1978). Incumbent firms could lobby politicians to erect barriers to entry and protect their market power. This is another form of consumer harm, but one that flows through the channel of regulation. If lobbying exhibits economies of scale, a rise in market concentration should lead to an increase in lobbying activity. If this hypothesis is correct, market power begets political power. 

To guide the empirical analysis (the core of this paper), we begin with a simple theoretical model capturing the relationship between market concentration and political influence. The model examines an oligopoly in which firms’ profits may be affected by regulation. Firms engage in lobbying activity to influence their regulation using the menu auction model by Grossman and Helpman (1994). 

We use our model to study how the political and product market equilibria change when two firms merge. A merger is a discrete event that leads to a change in concentration. We provide broad conditions for a merger to increase political influence activity. The intuition is that market competition within an industry partly dissipates the rents that accrue to firms from regulatory protection. By softening competitive pressure, a merger tends to increase the incentive of firms to lobby for regulation. Our model generates predictions for the merging entities and for the industry as a whole. It also distinguishes between the impact of mergers both at the extensive margin (firms’ choice to lobby at all) and the intensive margin (how much to lobby). 

The core of the paper studies data spanning almost two decades, 1999-2017, and asks whether mergers are associated with an increase or a decrease in political influence activities. We examine SEC-registered companies, matching each company with data about both its federal lobbying and its campaign contributions in the US (both before and after mergers). Lobbying money is mostly spent to influence specific administrations and committees, whereas PACs are geared towards getting a party or a politician elected. 

To investigate how political influence spending varies with a merger, we pursue two empirical approaches. In the first, we use a panel event study design (Athey and Imbens, 2022; De Chaisemartin and d’Haultfoeuille, 2020; Freyaldenhoven et al., 2021; Gentzkow et al., 2011; Goodman-Bacon, 2021). Qualitatively, identification in this approach relies on the idea that mergers are endogenous, but depend on fixed (or slow-moving) variables whose trends we control for. The identification assumption is that, after conditioning on all these other factors, mergers come from idiosyncratic shocks that are unrelated to the returns of political spending. Our second research design is a differential exposure design (Borusyak and Hull, 2023; Breuer, 2022; Goldsmith-Pinkham et al., 2020) that uses a logic similar to the Bartik (1991) instrumental variable design. Like other Bartik-like designs, ours employs a combination of time-varying shocks and initial characteristics of companies that are exposed differentially to those shocks. For time-varying shocks, we use economy-wide pro-merger shocks, following the well-documented pattern of mergers arriving in waves (Gort, 1969; Nelson, 1959; Weston et al., 1990). These waves span multiple sectors and have several proposed causes ranging from macroeconomic shocks to technology shocks. 

In both designs, our results suggest that mergers are positively associated with an increase in firms’ spending on political influence activities. The average merger is associated with a $70K to $180K increase in the amount spent on lobbying per period (half year) after the merger, or approximately 15% to 35% of the average per-period spend of merging firms. The average merger is also associated with an approximately $4K to $10K increase in campaign contributions per period, but this association is not statistically significant in all specifications. In particular, we link mergers to the extensive margin of influence – i.e., a firm’s choice to establish political operations at all. At the beginning of our sample, only 8% of firms lobbied, and only 5% of firms had a corporate PAC (a vehicle for corporate campaign contributions). 

During our sample period, the average merger is associated with a 1.5 to 2.1 percentage point increase in setting up an in-house lobbying operation for the first time in the company’s history (at least since government lobbying records were kept). Merging is similarly associated with a 1.6 to 1.9 percentage point increase in initiating a corporate PAC. Once initiated, political operations are highly persistent. Following the establishment of an in-house lobbying operation, an average business lobbies in 87% of the remaining periods in our sample. Once a business sets up a PAC, the average PAC is active in 76% of remaining periods. Kerr et al. (2014) find similar results about persistence. 

Across multiple specifications and outcomes, the association of mergers with influence activities is significantly stronger if the merging companies are larger, and if the merging companies belong to the same industry. Our results are consistent with the idea that lobbying scales with firm size. We find a similar positive association between mergers and political activity by the industry as a whole, and with the political spend of industry trade associations. Finally, we pursue several robustness checks, highlighting two here. First, we consider a possible mis-specification problem. Merging firms may ramp up their influence activities before the merger, perhaps to increase the chance of the transaction being approved by regulatory authorities. However, we find little evidence in the data for such an anticipation effect. 

This null result may be a reflection of the fact that most mergers during our sample period were not scrutinized by US antitrust authorities (Wu, 2018). 

Second, we measure whether firm-level political risk changes with mergers. Following a merger, firms may face more scrutiny from regulators if the merged entity becomes a politicized target of attack. The merged firm may increase lobbying, not because of rent dissipation and externalities (as in our theoretical framework), but because of a new adversarial environment. Hassan et al. (2019) develop methods for quantifying firm-level political risk based on the contents of quarterly earnings conference calls. Using this data, we find no evidence of higher political risk after a merger.

ACT Driving Offences

The ACT Law Reform and Sentencing Advisory Council Report into dangerous driving: sentencing and recidivism offers the following recommendations 

22 recommendations for positive action, including changes to current legislation and implementation of new intervention programs for dangerous driving offenders 

8 recommendations not to take particular actions, for example, the Council recommends against the creation of a specific Vehicular manslaughter offence, and against a legislated system of guideline judgments, and 

5 recommendations that were not unanimously supported by all Council members, as might be expected from a Council made up of such disparate stakeholders from the criminal justice system. 

Relevant law and definitions 

The terms ‘dangerous driving’ and ‘repeat offender’ have broad, colloquial meanings that do not accord well with the corresponding definitions in ACT legislation. The Council therefore recommends: 6.1. 6.2. 6.3. 6.4. The ACT Government introduce amendments for culpable driving and negligent driving offences to better clarify the distinctions intended to apply between the different kinds of conduct covered by these offences. The use of the word ‘dangerous’ in s 7 of the Road Transport (Safety and Traffic Management) Act 1999 is confusing, particularly in light of the recent amendments. 

The ACT Government consider revising this terminology. 

The ACT Government consider harmonising and/or streamlining the legal definitions of ‘repeat offender’ across existing ACT road safety-related legislation to ensure greater clarity and consistency in their application, having regard to the purpose and use of each definition. 

The ACT Government consider conducting a review of the impact of the 2016 changes (which removed the 5-year time limit on the scope of repeat offending for the purposes of automatic or mandatory licence disqualifications) on sentencing outcomes to determine whether such changes have had a detrimental impact, in particular in relation to vulnerable offenders. 

Offences 

The ACT Government introduce legislative amendments that simplify and/or clarify and/or ‘streamline’ the serious driving offence framework, for example: Locating all the significant driving offences in the same Act, and Clarifying the difference in culpability between driving a vehicle ‘negligently’ but culpably in s 29(6)(a) of the Crimes Act 1900, and driving a motor vehicle ‘negligently’ in s 6(1) of the Road Transport (Safety and Traffic Management) Act 1999. 

The ACT Government consider enacting a ‘mid-tier’ offence for dangerous, careless or reckless driving that causes injury, with a maximum penalty that sits between the current penalties for culpable driving and negligent driving offences. 

This is not a recommendation unanimously supported by all Council members. In making this recommendation, the Council does not say that the current ACT serious driving offence framework is inadequate but suggests that further charging options might be of benefit to prosecutors, may improve the labelling and denunciation of offending conduct and better address community perceptions. 

The Council does not recommend the creation of a vehicular manslaughter offence. 

Penalties 

The Council does not recommend increasing maximum penalties for existing serious driving offences. 

The ACT Government consider amending the legislation in relation to licence disqualifications for serious driving offences so as to provide, either automatically or as a matter of court discretion, that the commencement of the period of disqualification is delayed until the offender has completed any period of incarceration imposed for the offence or set of offences. This is not a recommendation unanimously supported by all Council members. 

The Council members who disagreed suggested that if the proposal was to be pursued, there should be included a discretion so a sentencing court could modify the effect of it in appropriate cases, such as those provided for in s 206A of the Road Transport Act 2013 (NSW) which provides that the period of disqualification “is subject to any court order relating to the operation of the section.” 

The ACT Government consider whether an interlock condition upon restoration of an offender’s licence is appropriate in cases of culpable driving where there is a link between alcohol misuse and the offending, noting that as a general proposition, the Council considers that interlock devices should be made more accessible to offenders on low incomes. 

The ACT Government consider implementing a scheme for serious traffic offenders to affirmatively prove their fitness to drive before being relicensed.  This is not a recommendation unanimously supported by all Council members. 

The Council does not support the implementation of a high-risk offender scheme for the ACT, nor does the Council support legislative amendments to allow car crushing for serious driving offences. 

The ACT Government introduce legislation to create licence disqualification periods for the Drive at police offences contrary to s 29A and 29B of the Crimes Act 1900, consistent with disqualification periods for other driving offences. 

A majority of the Council does not recommend the creation of further aggravated forms of serious driving offences. 

Data analysis 

Leaving aside the lack of consistent and reliable ACT data, it is apparent that there is considerable concern about the lack of common standards across Australia for the collecting and measuring of road safety data impeding creation of a nationally consistent dataset. 

The Council endorses national consistency and common standards for Australian road safety data and encourages further work in that regard. 

The Council endorses the recommendation in the ACT Government’s Road Safety Action Plan 2024–25 to improve road safety data capturing and reporting. In particular, the Council recommends that:

a. Road safety datasets should be easily accessible and user-friendly to the public, researchers and policy makers 

b. Road safety datasets should be regularly updated and published so that the data is timely and not stale, and 

c. Crash data should be integrated with other government data to form a comprehensive road data set, akin to the approach adopted in NSW. 

The ACT Sentencing Database should be improved. In particular the Council recommends that: 

a. database processes include some form of quality assurance and/or cleaning of the data 

b. if possible, the temporal scope of the database be increased; it would be preferable that all of the specific Court datasets cover the same time periods 

c. the database make it clear what are repealed offences, what are aggravated offences, and offences where the maximum penalty has changed over time 

d. finer data points be inserted into the database, specifically for more gradations in the timing of entry of pleas, and the ability to search over user-defined time periods, and   

e. the database also includes additional data points such as the age and gender of offenders across all courts, the quantum of and rationale for reductions for pleas of guilty, and demographic details (including ethnicity data, where available) of victims. 

The ACT Government create a standalone entity to manage and share criminal justice statistical databases and facilitate the creation of richer datasets where criminal justice data can be integrated with other government information to enable more detailed research and better targeting of initiatives, including road safety initiatives; for example, an analogue to the New South Wales Bureau of Crime Statistics and Research (BOCSAR). 

Sentencing practice 

While the Council observes that there is community concern and perception about misapplication of ACT sentencing principles for serious driving offences, including about the reductions properly to be afforded an offender in respect of the entry of a plea of guilty, the Council does not consider that these concerns are unique to this offence type and accordingly does not recommend any changes to sentencing principles for this specific offence type.

a. In particular, a majority of the Council does not recommend legislative change in respect of the operation of s 35 of the Crimes (Sentencing) Act 2005 either generally, or for serious driving offences. 

b. General concerns about lenient sentencing, and possible measures to rectify such an issue, fall to be considered in a broad review of ACT sentencing practices generally. While there is a need to improve public understanding in relation to sentencing, the Council does not recommend the creation of a statutory list of mitigating and/or aggravating factors that apply to sentencing in cases of serious driving offences. 

The Council does not unanimously recommend legislative change to make infringement notice and/or administrative sanction histories admissible in sentence proceedings. 

The Council does not recommend the creation of a guideline judgment scheme generally, or of a guideline judgment for this offence type. 

The ACT Government fund qualified psychiatrists, psychologists or medical practitioners to prepare detailed psychological risk assessments for consideration by the court when sentencing for serious driving offences and/or recidivist drivers that better address potential risks around recidivism than the current funded reports. 

Intervention programs 

The ACT Government prioritise investment in driving programs and public education strategies, including:

a. Programs targeted at current and future drivers with a greater emphasis on risk awareness and safety matters 

b. Specific programs for specific high-risk individuals and/or vulnerable groups (for example, school-age children, learner drivers, drug and alcohol users, people in contact with the criminal legal process or repeat offenders) 

c. Programs that are financially accessible, readily available, and appropriately targeted to, and culturally safe for, vulnerable members of the community, and 

d. Targeted and well-resourced training for those responsible for conducting these programs. 

The ACT Government both develop and adapt programs, in consultation with other Australian and international jurisdictions, that are grounded in psychological theory and research to address the attitudes of serious repeat traffic offenders and address serious driving/traffic offending behaviour in the ACT. 

In particular, the ACT Government consider:

a. Whether completion of dangerous driving and/or drug and alcohol programs should be a mandatory precondition to regaining a driver's licence after conviction and disqualification for certain serious offences. Offenders should be required to satisfactorily complete a program directed at their attitude to risk and risk management, and thus their offending, before they can drive again. 

b. Making programs available at various stages of the criminal justice process – after the entry of a plea of guilty but before sentence, as part of a sentencing order, while in custody on remand prior to sentencing, or while serving a term of imprisonment. This would ensure that the programs are available to the widest cohort of offenders who would benefit from participating in them. 

c. Charging fees only if concessional rates and assistance are made available to those experiencing financial hardship. The programs should be culturally safe for vulnerable members of the community. 

d. Whether completion of rehabilitation programs should be a mandatory precondition to regaining a driver's licence after conviction for certain serious offences – and there is a link between alcohol and drug use – as long as the programs are financially accessible, readily available, and appropriately targeted to, and culturally safe for, vulnerable members of the community. There should be periodic, regular reviews of the effectiveness of these programs. 

The ACT Government prioritise investment in therapeutic interventions, both in custody and in the community, for serious driving offenders, including investment in interventions that are financially accessible, readily available, and appropriately targeted to, and culturally safe for, vulnerable members of the community. 

The ACT Government implement and fund programs similar to the New South Wales MERIT program, to allow for timely and appropriate interventions for serious driving offenders on bail. 

The ACT Government provide appropriate funding for efficacy evaluations of all intervention programs currently operating and introduced in future. 

The impacts on victims and the community 

In the absence of any cogent evidence about deficiencies in the victim impact statement process for serious driving offences, the Council does not recommend any changes to it. 

The Council does not recommend the introduction of community or first responder impact statements for serious driving offences. The ACT Government continue the availability of the voluntary Restorative Justice Scheme for serious driving offences involving death or serious injury. 

The Council supports moves towards trauma-informed language in sentence proceedings, and particularly moves away from the word ‘discount’. 

The Council supports a move towards Supreme Court initiated trauma-informed practices when scheduling proceedings, including changes to language and ensuring that court dates do not conflict with particularly sensitive dates such as a victim’s birthday or the date of their death. 

The Council recommends that the ACT Magistrates Court should, where possible, publish on its website sentencing decisions for all cases of Culpable driving causing grievous bodily harm, Negligent driving causing death and Negligent driving causing grievous bodily harm.

The Council also considered 'The Australian context – other law reform and sentencing advisory bodies '

The issues before the Council, such as whether the maximum penalties for serious road crimes are appropriate, the sentencing principles relevant to these offences, and the experience and rights of victims are not unique to the ACT. Dangerous driving is a matter of broad concern. Communities around Australia and elsewhere have raised concerns about the operation of criminal laws in the context of cases where a person has been seriously injured or killed as a result of a motor vehicle collision. A number of Australian law reform bodies have reviewed, or are currently reviewing, dangerous driving offences – and particularly those causing death or serious injury. Sentencing advisory bodies in other States and Territories have also been tasked in the past decade with examining sentencing practices for dangerous or serious driving offences in their jurisdiction. 

All attempt to answer the questions:

• Do existing laws do enough to prevent and respond to the aftermath of dangerous driving? 

• Are sentences imposed by courts for dangerous driving offences adequate? 

• What role should victims play in the criminal justice process? 

• Are victims and their families being adequately supported?

The findings of some of these reviews, outlined below, are similar to those reached by the Council. 

New South Wales 

In January 2011, the New South Wales Sentencing Council published a report on Standard non-parole periods for dangerous driving offences. The report considered, and recommended against, a standard non-parole period for dangerous driving occasioning death or grievous bodily harm offences. In September 2020, the New South Wales Sentencing Council released its ‘Repeat traffic offenders‘ report. Relevantly for our review, the report concluded that subjecting serious repeat traffic offenders to educational or therapeutic programs and similar interventions aimed at changing offending behaviour was preferable to simply increasing levels of punishment, either for serious first offences or repeat offences. In 2022, the New South Wales Law Reform Commission (NSWLRC) commenced a major review of serious road crime, including existing laws and penalties, sentencing principles, and the experiences and rights of victims and their families. It released a consultation paper in December 2023. Submissions to the NSWLRC consultation paper closed on 5 April 2024. The final report is yet to be published. 

Victoria 

In June 2015, the Victorian Sentencing Advisory Council published its Major Driving Offences: Current Sentencing Practices report. The report examined sentencing practices for culpable, dangerous and negligent driving causing death or serious injury convictions in Victoria in 2006-2007 and 2012-2013 and found that speeding and alcohol were the predominant driving behaviours associated with the most serious offences. The report found that compared with other offences where there may be a broad range of harm and culpability within a single offence (such as aggravated burglary), the seriousness of the harm caused in cases of major driving offences and the need for general deterrence were the predominant sentencing considerations. Those key considerations appeared to temper differences in sentences as a result of the manner in which the offences were committed or characteristics personal to the offender. 

Tasmania 

In 2017, in response to community concern about penalties imposed for driving offences, the Tasmanian Sentencing Advisory Council (TSAC) released its report on Sentencing of driving offences that result in death or injury. The report considered that the use of imprisonment, the principles used to determine sentence length, and the types of sentences imposed for dangerous driving offences were appropriate. Recognising the need to address negative community perceptions about sentencing and better meet the needs of victims, the report recommended improving communication on sentencing outcomes. The report recognised the ‘expectation gap’ between what the law can do and what victims and their families feel as being enough; and observed that restorative justice mechanisms may be more able to assist in closing that gap than sentencing reform. 

Queensland 

The Queensland Sentencing Advisory Council’s 2018 report Sentencing spotlight on dangerous driving causing death examined outcomes for Dangerous operation of a vehicle causing death offences finalised in Queensland courts from 1 July 2005 to 30 June 2017. This report was a ‘sentencing spotlight’ and as such did not make any recommendations for reform. It found that the average prison sentence for the offence of Dangerous operation of a vehicle causing death was 5.2 years, but the sentences ranged from 1.5 to 9 years, with the presence of aggravating factors tending to result in higher sentences. 

In a media release that accompanied the release of the report, the Council’s chair John Robertson said that the Queensland Council’s work on sentence was proving to be an important ‘myth buster’, and further stated:

“I think perhaps in some quarters there is a mistaken belief that offences of this type are committed by either very young or very old drivers. As we’ve discovered, based on the sort of thorough data analysis that QSAC does best, that is not the case. It’s also particularly interesting to look at the criminal history of offenders – more than half had no previous criminal convictions. And over the 12-year data period, there were no repeat offenders for this specific offence. All-in-all, it’s an unusual offence; unlike other crimes there is no direct link to socio- economic disadvantage. It’s not a crime you can pin to a particular postcode or group of people. It is often very relatable – you can see how it might happen – it is always tragic, and the presence, or not, of aggravating factors such as alcohol or speed makes a huge difference to the level of culpability, or degree of guilt.”

CISG

'Fantastic Precedents and Where to Find Them: An Argument for Limiting the Operation of Common Law Binding Precedent Rules When Interpreting the UN Sales Convention (CISG)' by Benjamin Hayward in (2024) 47(4) UNSW Law Journal comments 

 The United Nations Convention on Contracts for the International Sale of Goods’ (‘CISG’) trade facilitation purpose is undermined by divergent State interpretations. Homeward trend CISG interpretations, and the duty to consult international CISG precedents, are well-travelled ground. Common law precedent’s effect in perpetuating the homeward trend (and precluding reference to international case law), however, has not yet been satisfactorily examined. My analysis offers a novel interpretation of CISG article 7(1): it negates the binding effect of local CISG precedent that is inconsistent with its terms. This interpretation allows judges in both common law and civil law States to freely consult foreign CISG case law. Using an Australian case study, I show that neither of two potential public law objections (the principle of legality and the separation of powers) affect my argument. Comments are offered concerning my argument’s generalisability to other common law States, arbitration, and other private international law instruments.

NZ Hate Crime Inquiry

The NZ Law Commission is to review the law in Aotearoa New Zealand relating to hate crime, with a focus on whether the law should be changed to create new hate-motivated offences. 

 For the purpose of this review, “hate crime” means conduct that is already a criminal offence under New Zealand law and, additionally, is carried out because of hatred or hostility toward a group of people who share a common characteristic (such as race, colour, nationality, religion, gender or sex, gender identity, sexual orientation, age or disability). 

Currently, the law in Aotearoa New Zealand responds to hate crimes at sentencing. If a person commits a crime because of hostility toward a group of people who share an “enduring common characteristic”, the court must consider this as an aggravating factor at sentencing (see section 9(1)(h) of the Sentencing Act 2002). 

The Report of the Royal Commission of Inquiry into the terrorist attack on Christchurch masjidain on 15 March 2019 recommended the creation of new hate-motivated offences. In particular, recommendation 39 proposed that new hate-motivated offences be created in: the Summary Offences Act 1981 (corresponding with the existing offences of offensive behaviour or language, assault, wilful damage and intimidation); and the Crimes Act 1961 (corresponding with the existing offences of assaults, arson and intentional damage).

The review will include, but not be limited to, consideration of:

• Whether the current law in Aotearoa New Zealand adequately responds to hate crime (in particular section 9(1)(h) of the Sentencing Act 2002, which requires hostile motivation to be taken into account when sentencing an offender).

• Whether any concerns about the operation of the current law should be addressed through legislative (or operational) measures, for example, the creation of hate-motivated offences. 

• If hate-motivated offences should be created: which existing offences they should correspond to; which common characteristics they should cover; how the hatred or hostility element of the offences should be established; what maximum penalties are appropriate; and whether any amendments to the Sentencing Act are desirable to take account of the new offences and to ensure hate crime offenders are sentenced appropriately.

 The Commission will take into account te ao Māori and give consideration to the multicultural character of New Zealand society. 

 The review will not consider criminalising conduct that does not currently amount to an offence under New Zealand law. For the avoidance of doubt, the review will not consider recommendations 40 and 41 of the Report of the Royal Commission of Inquiry into the terrorist attack on Christchurch masjidain on 15 March 2019, which concern: the law relating to hate speech, including sections 61 and 131 of the Human Rights Act 1993; and the definition of when a publication is “objectionable” in section 3 of the Films, Videos, and Publications Classification Act 1993.

Estates and pseudolaw

An estates dispute involving pseudolaw claims in Norfina Limited v Fish [2024] WASC 471. 

The Court states 

 Before I address the substance of the applications, there are some important background and contextual matters to outline. 

The pseudo-law approach adopted by the defendant and by Ms Kounis xx Given the form and content of the affidavits filed by Mr Fish and the affidavits relied upon by Ms Kounis, it is convenient that I make some observations about the approach they have adopted in these proceedings. 

It is apparent from the affidavits sworn by the defendant and by Ms Kounis that the defendant and his partner share a similar view as to the applicability to them of the laws of this country, and the applicability of those laws to the financial and property arrangements between Mr Fish and the plaintiff lender. 

In broad terms, the material they have filed reflects a nonsensical view of the essential framework of our legal system, sometimes conveniently referred to as the ' sovereign citizen ' movement. 

Much of the affidavit material and the accompanying submissions are, objectively, nonsense. The arguments expressed by the defendant and Ms Kounis are similar to those which were reviewed by Vandongen J, as his Honour then was, in Kelly v Fiander. As his Honour there explained, such theories have been repeatedly rejected by Australian courts. Regrettably, by responding to legal claims using this pseudo-law approach, the party in question tends to obscure rather than elucidate their position. 

By way of example of the material in the affidavits, I note the following:

(a) the defendant styled himself as 'Stevan Gordon of the family Fish, a living man, loyal subject of the crown, (Charles the Third, by the Grace of God of the United Kingdom of Great Britain and Northern Ireland and of His Realms and Territories King, Head of the Commonwealth, Defender of the Faith)'; 

(b) the defendant prefaced his affidavits with the phrase 'without prejudice, reserving all of my rights in common law and do not enter into any contract or accept any services or benefits on offer that contradict or prejudice my common law rights'; and 

(c) the jurat employed by the defendant in his affidavits states that the deponent is 'Stevan Gordon of the family Fish, the living man for and on behalf of the all caps Defendant STEVAN GORDON FISH'.

In her most recent affidavit dated 20 November 2024, which consists of 42 pages of closely typed material, Ms Kounis asserts that the plaintiff, the plaintiff's solicitors and, quite remarkably, this Court are, in truth, liable for the debts of the defendant. Indeed, it appears to be suggested, although it is unclear, that this liability may now be owed to Ms Kounis. 

Having reviewed this material, it is unnecessary to recite the extensive pseudo-legal journey that Ms Kounis invites the Court to follow, commencing with the Laws of God, then to the Magna Carta of 1215, the first five books of the King James Bible of 1611, various English statutes from the 17th and 18th centuries, isolated quotes from Blackstone's Commentaries, a review of the constitutionality of income tax laws in this country, and several High Court authorities, all taken out of context. This material is irrelevant to the disposition by this Court of the present action and the pending applications and I will put it to one side, unless it requires an express mention.

Blasphemy

The Justice and Related Legislation (Miscellaneous Amendments) Bill 2024 (Tas) - passed and assented - amends Schedule 1 of the  Criminal Code 1924 (Tas) to remove the crime of blasphemy. 

The Bill amends s 12(1)(c) 'Prohibited language and behaviour' in the Police Offences Act 1935 by omitting “obscene, offensive, or blasphemous language” and substituting “obscene or offensive language”.

The accompanying note states .

Blasphemy provisions across Australia are not used (the last successful prosecution for blasphemy in Australia was in 1871) and the offence of blasphemy has already been abolished in Queensland and Western Australia. 

At common law this crime only pertains to statements in relation to Christianity, which is out of step with a modern and diverse community. Discriminatory behaviour toward a person or group of persons on the grounds of religious belief and affiliation is prohibited by the Anti-Discrimination Act 1998.

Pseudolaw

'The Rise of Pseudolaw in South Australia: An Empirical Analysis of the Emergence and Impact of Pseudolaw on South Australia's Courts' by Joe McIntyre,  Frankie Bray, Jonathan Crichton, Harry Hobbs, Fiona O'Neill, Madeleine Perrett and Stephen Young comments 

Pseudolaw refers to the phenomenon whereby adherents adopt the forms and structures of legal argumentation while substituting the substantive content and underlying principles for a distinct parallel set of beliefs. These movements often confront courts with submissions that comprise seemingly random compilations or quotations of obscure, obsolete or irrelevant clauses from a wide variety of legal instruments. To the legal insider this is nonsense. But to the adherent of pseudolegal belief these represent the true understanding of the law. 

This paper is the first mixed method analysis of the scale, nature and impact of pseduolaw in any Australian jurisdiction, and one globally unique in its use of interviews and linguistic analysis of this phenomenon. This paper builds upon a typology of pseudolegal argumentation developed by the authors in 2022 by aiming to provide a firm empirical foundation of just how this phenomenon is developing and affecting the judicial system in South Australia. The paper maps the rise of pseudolaw in the State through a combination of interviews with judges and administrators, and through the empirical coding of judicial decisions.

MyHR Expansion

The Bills Digest preliminary item on the Health Legislation Amendment (Modernising My Health Record—Sharing by Default) Bill 2024 notes that 

The Health Legislation Amendment (Modernising My Health Record—Sharing by Default) Bill 2024 establishes a legislative framework for requiring key health information to be shared with the My Health Record system, subject to exceptions. Certain healthcare providers within the pathology and diagnostic imaging sectors will be the first healthcare providers required to share test results to the My Health Record system. The Strengthening Medicare Taskforce and others have called for sharing by default arrangements to increase the amount of health information in My Health Record and allow it to deliver greater benefits to users and the health system. 

Currently it is voluntary for health providers to upload health information. While there have been various efforts to encourage greater uploading of documents (which have seen an increasing volume of clinical documents uploaded), some large private providers have indicated that they would not move to make share by default part of their standard practice until a legal requirement to do so is established. 

The Bill proposes that Medicare benefits for specific health services will be conditional upon upload of information about those health services. Rebates would continue to be paid to patients in the usual way, however if the providers do not upload results within the required timeframe the Medicare payment received would need to be repaid by the provider. At the time of writing, the Bill had not been referred to or reported on by any parliamentary committees. ... 

The Bill is expected to 

 amend the My Health Records Act 2012 (the MHR Act) and the Health Insurance Act 1973 (the HI Act) to establish a legislative framework for requiring key health information to be shared with the My Health Record system, subject to exceptions. As explained in the Minister’s second reading speech: We're starting with pathology and diagnostic imaging. However, this framework will position the My Health Record system to deliver access to key information, and become a routine, central part of our health system. ...  There are also related amendments to the A New Tax System (Goods and Services Tax) Act 1999, Fringe Benefits Tax Assessment Act 1986, National Health Act 1953, National Health Reform Act 2011 and Private Health Insurance Act 2007. ... 

 The Bill comprises 2 Schedules: Schedule 1 contains the main amendments. Part 1 amends the MHR Act to require prescribed constitutional corporations to become registered under the MHR Act and to upload prescribed information to the My Health Record system. Part 2 amends the HI Act to provide that Medicare benefits will no longer be payable for prescribed healthcare services, unless required information is shared to the My Health Record system. It also provides for exceptions in certain circumstances. Schedule 2 contains other amendments to: enable limited data matching between Medicare and My Health Record information to support compliance and enforcement with the new share by default requirements enable the Australian Commission on Safety and Quality in Health Care to disclose information about healthcare providers to the Secretary or MHR System Operator for compliance purposes make consequential amendments to the HI Act and other Acts to ensure that even if Medicare benefits are not payable because information hasn’t been uploaded, that this doesn’t affect how those services are treated by other Acts and programs.

The preliminary Digest item goes on to state 

My Health Record is a secure digital place to store health information and records. It commenced in July 2012 on a voluntary opt-in basis, then known as the Personally Controlled Electronic Health Record system (PCEHR). In March 2017, Australian governments agreed to move the My Health Record system to an opt-out model, with the Australian Government providing funding for implementation in the 2017–18 Budget (p. 116). Every Australian now has a My Health Record unless they ‘opted out’ before the end of January 2019. People who cancelled their My Health Record do not have one. A person can delete their My Health Record at any time.

A substantial number of people - perhaps a third of the cohort - opted out 

The My Health Record system operates under the My Health Records Act 2012. The Act establishes: the role and functions of the System Operator (currently the Australian Digital Health Agency) a registration framework for individuals and healthcare provider organisations to participate in the My Health Record system a privacy framework specifying which entities can collect, use and disclose certain information in the system and penalties on improper collection, use and disclosure. A consumer’s My Health Record includes information such as vaccinations, prescriptions, test and scan reports, pathology reports, hospital discharge information and emergency contacts. Authorised healthcare providers can upload and view a patient’s health information, however it is currently voluntary for providers to upload information. 

Prior efforts to increase the volume of health information available in My Health Record have included: financial incentives, industry offers to subsidise the development and rollout of My Health Record functionality, education and engagement, and progress toward national harmonisation of legislation, regulation and policies across governments (see pages 29–31 of the Impact Analysis for the Bill (included as part of the Explanatory Memorandum) for further information). 

The move to sharing by default 

A 2020 Review of the My Health Records Legislation recommended that the Australian Government examine options for tying eligibility criteria for specific government health benefit payments to support increased core clinical content in My Health Record and extensive adoption by healthcare providers (p. 6). 

The Strengthening Medicare Taskforce (established in 2022 to recommend ways to improve primary health care for all Australians) recommended that the Government: Modernise My Health Record to significantly increase the health information available to individuals and their health care professionals, including by requiring ‘sharing by default’ for private and public practitioners and services, and make it easier for people and their health care teams to use at the point of care. (p. 9) 

The Productivity Commission’s 2023 Advancing Prosperity inquiry report recommended using My Health Record as the foundation for sharing and using health data, including by requiring healthcare providers to share relevant health records to My Health Record where a consumer has not opted out (p. 60). 

In the 2023-24 Budget, the Australian Government committed $429 million over 2 years to modernise My Health Record, including investment to improve the sharing of pathology and diagnostic imaging information (p. 149). On 17 September 2023, the Minister for Health and Aged Care announced that the Government would require pathology and diagnostic imaging reports to be uploaded to My Health Record by default.