Pseudolaw

Another instance of pseudolaw - statutes are supposedly invalid because incorrectly sealed - with a religious inflection in New v Dvorsky [2024] TASMC 4  ...

 Nicholas Stefan Dvorsky did not vote at the Federal election held on 21 May 2022. He has been charged with failing to vote at an election contrary to s245(15) of the Commonwealth Electoral Act 1918. He has pleaded not guilty. He says he was not required to vote because of his religious belief. 

It is an offence for an elector to fail to vote at an election: s245(15). That is an offence of strict liability: s 245(15A). However, the offence is not committed if the elector has a valid and sufficient reason for the failure: s 245(15B). The fact than an elector believes it to be part of his or her religious duty to abstain from voting constitutes a valid and sufficient reason for that failure: s 245(14). The essential facts constituting the offence were averred in the complaint. Pursuant to s 388 of the Commonwealth Electoral Act 1918 they are taken to be proved in the absence of evidence to the contrary. There was no such contrary evidence. 

However, there was evidence of email communications between the defendant and the Australian Electoral Commission in which the defendant, describing himself as a "private sentiment soul" and "Nicholas Stefan of the House of Dvorsky" and using the email address Livingman1995@gmail.com, sought to establish that he was not obliged to vote. What the defendant was saying in those emails was difficult to understand. They contained illegitimate demands, used terms and language with a quasi-legal complexion but which were otherwise entirely misconceived and contained a plethora of non-sequutur. 

He accused the Australian Electoral Commission of being an unconstitutional foreign entity acting outside of the Commonwealth of Australia Constitution Act 1900 UK and not abiding by "heavenly father’s Authorised King James Version Bible 1611 (Banking Instruments, Banking Law and Equity)".

It is unclear whether the defendant's copy of the 1611 KJV includes a discrete chapter on 'Banking Instruments, Banking Law and Equity'.

The judgment indicates

 He then stated: “It’s against my religion to abstain from voting and if you ask why, it’s because that’s between myself and the Creator”. 

Taken literally that statement indicates the defendant is asserting a religious duty to vote. However given the other content of his emails I understand him to be asserting it is his religious duty not to vote. 

In order to fall within the valid and sufficient reason specified in s245(14) there is a need to identify a religious duty, that is a duty imposed by a religion. The leading authority on what constitutes a religion is Church of the New Faith v Commissioner of Pay-Roll Tax (Victoria) [1983] 154 CLR 120; [1983] HCA 40. 

As Mason ACJ and Brennan J observed at 132 "the mantle of immunity should soon be in tatters if it were wrapped around beliefs, practices and observances of every kind whenever a group of adherents chose to call them a religion ... a more objective criterion is required". Their Honours identified the objective criteria as being twofold: “[F]irst, belief in a supernatural Being, Thing or Principle; and second, the acceptance of canons of conduct in order to give effect to that belief ...”. 

Wilson and Deane JJ referred to the following indicia of a religion, at 174: a belief in the supernatural, that is to say a belief in a reality which extends beyond that which is capable of perception by the senses; a belief in ideas relating to the nature of human beings, their place in the universe and relationship to the supernatural; those beliefs require adherence to particular standards, codes of conduct or practices by those who hold them; the existence of an identified group of believers even if not a formal organisation; and the opinion of the believers that what they believe constitutes a religion. 

The defendant need only point to evidence which suggests the reasonable possibility that such a religious duty exists. It is then for the prosecution to negative the existence of that duty beyond reasonable doubt: s13(3) Commonwealth Criminal Code and Commonwealth Director of Public Prosecutions v Easton [2018] NSWSC 1516 at [73]. 

The defendant referred to Christian belief. He also referred to many texts from an ancient version of Christian scripture. However, aside from his assertion that it was against his religious belief to vote, there was no evidence that the Christian religion including its many manifestations in the multitude of formal and informal denominations which now exist contains any prohibition on voting. Indeed there was no express assertion that the defendant was an adherent of any group of believers who are subject to a duty not to vote. I am not satisfied he is. Rather his assertion of a religious duty appears idiosyncratic. 

Against the eventuality that I am wrong as to that I have assumed that the asserted duty not to vote arises as a result of adherence to the standards, codes of conduct and practices articulated in the various passages of scripture referred to by the defendant in the Authorised King James Version of 1611. I have therefore considered whether those texts in that version provide any support for the duty not to vote. In undertaking that consideration I take care to avoid this court assuming any role as a tribunal of doctrine. I am considering whether the ideas the defendant articulates as a basis for failure to vote give rise to a duty to behave in that manner. I also understand that a belief in the supernatural may involve an element of mystery, perhaps grounded in the experience of the divine rather than in logic alone. However, if the duty not to vote is to be established as a religious duty, it should be capable of some coherent explanation by reference to the tenets of the defendant’s religion. With those considerations in mind I turn to consider the passages of scripture referred to by the defendant. 

First, the defendant refers to Romans 2:11 which says, “For there is no respect of persons with God". Although on his case the Australian Electoral Commission is an unconstitutional foreign entity acting outside of the scope of the Australian Constitution, I infer the defendant considers it a person and therefore not respected by God. Whether or not the Australian Electoral Commission is a person and whether or not that entity is respected by God has no bearing on the duty of an elector to vote. Further, properly understood, that text is simply referring to the impartiality of God; that the social status of a person is irrelevant to God. It does not provide any foundation for failing to vote. 

Second, the defendant refers to Leviticus 19:15 which says "Ye shall do no unrighteousness in judgment: thou shalt not respect the person of the poor, nor honour the person of the mighty: but in righteousness shalt thou judge thy neighbour". Although again alluding to impartiality, there is nothing in that passage which would justify a failure to vote. 

Third, the defendant refers to Matthew 7:12 which states "Therefore all things whatsoever ye would that men should do to you, do ye even so to them: for this is the law and the prophets". Sometimes referred to as the Golden Rule, there is nothing in that passage which would justify a failure to vote. 

Fourth, the defendant refers to Exodus 20:13, part of the Decalogue, in particular the prohibition on killing. There is nothing in that passage which would justify a failure to vote. 

Fifth, the defendant refers to Matthew 5:9, one of the Beatitudes, which states, "Blessed are the peacemakers: for they will be called children of God". There is nothing in that passage which would justify a failure to vote. 

Sixth, the defendant refers to Proverbs 24:11-12 which states, "If thou forebear to deliver them that are drawn unto death, and those that are ready to be slain; if though sayest, behold, we knew it not; doth not he that pondereth the heart consider it? And he that keepeth thy soul, doth not he know it? And shall not he render to every man according to his works?" Although clearly encouraging ethical, compassionate, empathetic and responsible conduct towards others, particularly the vulnerable, there is nothing in that passage which would support a failure to vote. 

Seventh, the defendant refers to Psalm 25:9 which says, "He guides the humble in what is right and teaches them his way". Once again there is nothing in that passage which would justify a failure to vote. 

Insofar as the defendant seeks to rely on Holy Writ, it appears somewhat convenient to the position he takes that he omits a reference to the Apostle Paul in Romans 13:1-4 which says, in the particular translation upon which the defendant relies, "Let every soul be subject unto the higher powers. For there is no power but of God: the powers that be are ordained of God. Whosoever therefore resisteth the power, resisteth the ordinance of God: and they that resist shall receive to themselves damnation. For rulers are not a terror to good works, but to the evil". That suggests a duty to comply with the requirements of the law. 

I have focussed on the passages of scripture referred to by the defendant because they are the only parts of his emails which carry any religious allusions. However in reality, insofar as the defendant’s objection to voting is capable of being understood, it is, in substance, based on a belief in the invalidity of the legislation requiring him to vote, that the legislation does not bind him for some other reason, some defect in the status of the Australian Electoral Commission or a disagreement with the decisions made by those elected. Similar views have consistently been held not to constitute a valid and sufficient reason for failing to vote: see Commonwealth Director of Public Prosecutions v Easton [2018] NSWSC 1516, particularly the discussion of the authorities by N Adams J from [75] and the summary at [95]. The defendant has simply given those views a religious gloss. The suggestion that they give rise to a religious duty of some sort is not established by the evidence. Indeed, the materials provided to me provide no coherent basis for concluding that any such religious duty exists. 

That is enough to determine these proceedings. However it is appropriate to refer to one further matter raised in the materials the defendant relied on. 

As part of the assertion that the laws which require the defendant to vote are not valid, he referred to statements said to have been made by Magistrate McKee when dealing with complaint 51841/2015 on 13 November 2015. The defendant asserts that Magistrate McKee said that he understood the argument of the defendant in that case to be that any state laws that had been passed since 1901 in Australia and in the State of Tasmania are invalid because they didn’t put the correct seal on. The laws the prosecution was relying upon therefore do not exist and if the prosecution was to proceed any further it would have to address the seal argument.

Inexactitude

The Guardian reports that Townsville's mayor has  abeen  referred to the Queensland Crime and Corruption Commission last week after allegations he embellished his military record by stating he spent five years in the army, including time with “SAS Swanbourne”. 

 In an interview with A Current Affair on Thursday night, Thompson conceded he had not spent five years in the service, as he claimed during his campaign, and blamed “100-plus” concussions and epilepsy on his poor recollection. 

“Look, I honestly, hand-on-heart, thought it was five years,” he told Nine. “Those who know me know that I’ve had multiple concussions – 100-plus – and I suffer from epilepsy. “That’s not an excuse. But what it says is you’re going to forget things from time to time.” ...   

In addition to embellishing his military record, Thompson also admitted he “never completed” university, despite describing himself as a “business graduate” during his campaign and claiming he had two degrees. Thompson’s LinkedIn account previously listed a bachelor of science, occupational safety and health technology with Curtin University and a bachelor of commerce, accounting and marketing from Griffith University. These degrees were removed from his profile after he was sworn into office.

Responsibility

'Humans Outside the Loop' by Charlotte A Tschider in 26 Yale Journal of Law & Technology 324 comments 

Artificial Intelligence (AI) is not all artificial. Despite the need for high-powered machines that can create complex algorithms and routinely improve them, humans are instrumental in every step used to create AI. From data selection, decisional design, training, testing, and tuning to managing AI’s development as it is used in the human world, humans exert agency and control over the choices and practices underlying AI products. AI is now ubiquitous: it is part of every sector of the economy and many people’s everyday lives. When AI development companies create unsafe products, however, we might be surprised to discover that very few legal options exist to remedy any wrongs. 

This Article introduces the myriad of choices humans make to create safe and effective AI products and explores key issues in existing liability models. Significant issues in negligence and products liability schemes, including contractual limitations on liability, distance the organizations creating AI products from the actual harm they cause, obscure the origin of issues relating to the harm, and reduce the likelihood of plaintiff recovery. Principally, AI offers a unique vantage point for analyzing the limits of tort law, challenging long-held divisions and theoretical constructs. From the perspectives of both businesses licensing AI and AI users, this Article identifies key impediments to realizing tort doctrine’s goals and proposes an alternative regulatory scheme that shifts liability from humans in the loop to humans outside the loop.

Speech

'Do large language models have a legal duty to tell the truth?' by 2024 Sandra Wachter, Brent Mittelstadt and Chris Russell in (2024) Royal Society Open Science comments 

Careless speech is a new type of harm created by large language models (LLM) that poses cumulative, long-term risks to science, education, and shared social truth in democratic societies. LLMs produce responses that are plausible, helpful, and confident, but that contain factual inaccuracies, misleading references, and biased information. These subtle mistruths are poised to cumulatively degrade and homogenise knowledge over time. This article examines the existence and feasibility of a legal duty for LLM providers to create models that “tell the truth.” We argue that LLM providers should be required to mitigate careless speech and better align their models with truth through open, democratic processes. We define careless speech against “ground truth” in LLMs and related risks including hallucinations, misinformation, and disinformation. We assess the existence of truth-related obligations in EU human rights law and the Artificial Intelligence Act, Digital Services Act, Product Liability Directive, and Artificial Intelligence Liability Directive. Current frameworks contain limited, sector-specific truth duties. Drawing on duties in science and academia, education, archives and libraries, and a German case in which Google was held liable for defamation caused by autocomplete, we propose a pathway to create a legal truth duty for providers of narrow- and general-purpose LLMs. 

Disobedience

'From Labor Sit-Downs to Civil Rights Sit-Ins: A Genealogy of Liberal Civil Disobedience' by William E. Scheuerman in (2024) The Review of Politics 1 - 25 comments 

Addressing the twenty-fifth anniversary convention of the United Automobile Workers (UAW) on April 27, 1961, in Detroit, Dr. Martin Luther King drew a direct line from the militant auto worker sit-down strikes of the mid-1930s to the recent wave of civil rights sit-ins at southern lunch counters. King praised the young activists for their “nonviolent and courageous struggles” against racial segregation, underscoring the kinship between their efforts and those of automobile worker sit-downers at Flint, Michigan, and elsewhere. The UAW strikers had been forced to confront “recalcitrant antagonists,” many of “which said to you the same words we as Negroes now hear: ‘Never . . . You are not ready . . . You are really seeking to change our form of society . . . You are Reds . . . You are troublemakers . . . You are stirring up discontent and discord where none exists . . . You are interfering with our property rights . . . You are captives of sinister elements who exploit you.’”  King lauded the trade unionists for forging “new weapons” that had inspired the civil rights activists engaging in nonviolent direct action: “in part of your industry you creatively stood up for your rights by sitting down at your machines, just as our courageous students are sitting down at lunch counters across the South.” Despite detractors’ claims that the original sit-downers “were destroying property rights,” the automobile industry had remained “in the hands of its stockholders and the value of its shares has multiplied manifold, producing profits of awesome size.” Sit-inners now faced the same groundless accusation that they threatened property rights. Nonetheless, King concluded, “we are proudly borrowing your techniques, and though the same old and tired threats and charges have been dusted off for us, we doubt that we shall collectivize a single lunch counter or nationalize the consumption of sandwiches and coffee.” Just as labor sit-downs that rippled across the country in the 1930s had resulted in a “better life” for workers and, indeed, “the whole nation,” so too would the lunch counter sit-ins improve the situation of black Americans and the entire country. 3 Neither movement constituted a violent attack aimed at dismantling private property. Aware of the sit-inners’ debts to the 1930s sit-downs, King was reminding its overwhelmingly white, male delegates of their influence on a new generation of young black activists. Historians have corroborated King's attempt to draw links between the civil rights movement and organized labor, in part by acknowledging the role of unions such as the UAW in supporting—and sometimes bankrolling—their efforts. They have also observed that the 1930s sit-downs inspired midcentury political activists affiliated with the Fellowship of Reconciliation (FOR), Congress of Racial Equality (CORE), and related organizations, some of whose leading figures (e.g., James Famer, James Lawson) served as mentors to the young activists responsible for the wave of lunch counter sit-ins that swept the South in 1960. With the exception of Marc Stears, political theorists and historians of US political thought have neglected those links. Despite her impressive recent discussion, Erin Pineda ignores the origins not only of the sit-ins, but also of the liberal theories they inspired, in 1930s US labor struggles. To correct for this oversight, I argue that Rawlsian ideas of civil disobedience that emerged in the 1960s and early ’70s can only be properly interpreted with recourse to the complicated history of the early civil rights movement's appropriation of the labor sit-down strike. In the spirit of Pineda's call for scholars of civil disobedience to read “political theory texts in context,”  I reinterpret Rawls in the context of a messy but basically successful effort by civil rights activists, sympathizers, and especially the lawyers who defended sit-inners in the courts to circumvent the repressive, ultimately disastrous state and legal response that the 1930s sit-downers had garnered. 

 

Although the story is a complicated one, a key problem faced by the 1960 sit-inners was clear enough: in National Labor Relations Board v. Fansteel Metallurgical Corporation (1939), the US Supreme Court had neutered the sit-down strike which had been one of organized labor's most efficacious political tools during its 1930s New Deal–era resurgence.  In a controversial ruling, the Court majority reversed a National Labor Relations Board (NLRB) order requiring Fansteel, a Chicago-area steel firm, to rehire dismissed sit-down strikers. The justices characterized the sit-down against Fansteel as a violent, lawless seizure of property incongruent with the rule of law and property rights. Predictably, when civil rights activists subsequently borrowed from militant labor's toolkit, they faced hostile voices that reproduced this take on the sit-down. Even former president Truman, in April 1960 comments at Cornell University widely reported by the media, accused the young sit-inners of simply imitating the (supposedly) “Red” sit-downs of the 1930s. When arrested and charged, sit-in activists soon faced state and legal action that deployed Fansteel to discredit them: hostile voices followed the Court majority by characterizing the sit-ins as illegal and also disruptive, violent, and destructive of property. Activists and their lawyers—in particular, the National Association for the Advancement of Colored People (NAACP) Legal Defense Fund (LDF)—successfully responded by highlighting not just the sit-in movement's principled commitment to nonviolence, but also its focus on basic civil and political rights. The sit-ins, they emphasized, entailed no principled challenge to private property. 

 

My retelling of the familiar story of the sit-ins refocuses attention on the nexus between the labor and civil rights movements and resituates influential 1960s debates about civil disobedience. I argue that the Rawlsian interpretation of civil disobedience implicitly followed vital strands of the strategy of delinking the lunch counter sit-ins from the workplace sit-downs. David Lyons repeats a commonplace criticism of Rawls's model of civil disobedience as offering a philosophical codification of a distorted, sanitized interpretation of the civil rights movement. One immediate result, as critics such as Robin Celikates argue, has been an influential yet overly restrictive notion of civil disobedience. Although this article ultimately endorses elements of these views, Rawls built on a significant, politically as well as legally savvy, discursive strategy that emerged within the early civil rights movement itself. The move to distinguish civil rights struggles from those relating to economic justice was not foisted upon activists by ivory tower racial liberals; rather, it was a key component of the movement's own strategy. Those critical of Rawls downplay that crucial part of the story because their contextualization of the 1960s sit-inners misses major pieces of the puzzle. 

 

I begin by briefly revisiting the 1930s sit-down strikes, their impact on midcentury antiracist activists, and the legacy of Fansteel (section 1), before turning to the 1960s sit-inners and the exacting political and legal challenges they faced (section 2). After examining how one of the sit-in movement's key institutional players, the NAACP LDF, responded to those challenges (section 3), I revisit the 1960s and early ’70s debate about civil disobedience. As I hope to show, the NAACP legal strategy is absolutely essential if we are to make sense of that debate. By focusing on Rawls's liberal account and Michael Walzer's astute critique (sections 4–5), I offer a reinterpretation of the debate that properly foregrounds the civil rights movement's complicated relationship to the 1930s sit-downs.

Privacy

The Tasmanian Law Reform Institute has released its Final Report on the Review  of Privacy Law in Tasmania, following  the  Issues Paper of March 2023. The Report makes 63 recommendations for reforms.

The Institute comments that he Final Report 

adopts a broad working definition of privacy ([2.2]) which covers the overlapping categories of information privacy, privacy of communications, bodily privacy, and territorial privacy. Bodily and territorial privacy are collectively known as ‘rights to seclusion’, which is the right to have one’s physical self and one’s environment free from intrusion. 

Currently, there is no comprehensive privacy regulation in Tasmania. Rather, privacy protection is fragmented across different laws that protect different types of privacy in different specific circumstances ([2.5]). Different legislation may interact to affect privacy protections (Part 2). The applicability of regulations at the Australian federal level under the Privacy Act and the international level create further complexity in the landscape of privacy protection. Accordingly, in answer to the overarching question guiding this project, the TLRI’s view is that existing privacy laws in Tasmania are not adequately protective. 

In contemplating appropriate reforms, the TLRI considers that consistency of the Tasmanian information privacy legislation with the Commonwealth and other State and Territory legislation is desirable. This is a key issue identified in reviews elsewhere in Australia, and in submissions to this Final Report. Consistency reduces confusion, promotes information sharing and enables Tasmania to learn from the experiences in other jurisdictions. 

A statutory tort for serious invasions of privacy 

In addressing the gaps in privacy protection, together with the fragmented landscape of protection under both legislation and general law, the TLRI considers that there is a case for creating a civil statutory cause of action (and remedy) for certain interferences with privacy. The TLRI considers that the introduction of a statutory tort for serious invasions of privacy would address a significant gap in privacy protection in Tasmania that appears unlikely to be addressed in common law in the immediate term. This view is consistent with recommendations of multiple national and State-based reviews in recent years. 

A statutory tort to be enacted in a standalone Commonwealth Act, with cross-vesting of federal jurisdiction, would be the most appropriate way to introduce such a protection. However, the TLRI considers that, if the Commonwealth does not adopt the proposal of the ALRC and the Privacy Act Review in the near future, further consideration should be given to the introduction of Tasmanian legislation to create a statutory civil cause of action, or statutory tort, of privacy. 

Personal Information Protection Act 2004 (Tas) 

The primary privacy framework in Tasmania is the Personal Information Protection Act 2004 (Tas) (‘PIPA’), which binds government agencies and their contractors. It protects government-held information, primarily through prescribing 10 ‘Personal Information Protection Principles’ (‘PIPPs’) by which the entities must abide. While a detailed piece of legislation, there are multiple gaps in its scope, operation, and enforcement that can jeopardise privacy. To address these gaps, the TLRI makes recommendations relating to the scope of the information protected by: • amending the definition of personal information; • inserting into the PIPA a non-exhaustive list of circumstances to which PIPA personal information custodians will be expected to have regard in assessing whether identity is ‘reasonably identifiable’; • inserting a definition of ‘de-identified’; and • aligning the definition of ‘sensitive information’ by adding biometric information and genetic information about an individual that is not otherwise health information to the PIPA definition . 

The TLRI also make recommendations about removing exemptions or exceptions under the PIPA relating to employee information and public information. Currently, these types of information receive less than the general level of legislative privacy protection (see [4.12]). 

The TLRI also considers that a definition of law enforcement information should be included in the PIPA and that the Ministerial exemption mechanism based on a public benefit assessment in the PIPA should be amended. Further, it is the TLRI’s view that exemptions for information handling in emergency situations should be provided for in the PIPA (see [4.15]). 

In addressing the alignment of the Tasmanian privacy principles with the Commonwealth Act, the TLRI recommends a number of changes to the PIPPs and other provisions of the PIPA to enhance consistency and clarity for both individuals and personal information custodians and to respond more comprehensively to privacy risks associated with the increasing proliferation and sophistication of digital technology (see Parts 5–7). These reforms are in the areas of the collection, use and disclosure of personal information, data quality, security, access and correction, and complaints, monitoring, and enforcement (see Parts 5 and 6). 

The TLRI notes the concerns raised in multiple submissions about the privacy risks associated with emerging technology, such as facial recognition and automated decision-making. The TLRI agrees with the findings of the Commonwealth Privacy Act Review and other recent projects (such as the AHRC’s Human Rights and Technology project) that the risks associated with these technologies justify reforms to privacy legislation. There is considerable scope to strengthen the PIPA complaints process, and to make provision for remedies for breaches of the PIPA, in order to enhance privacy protections for individuals and foster personal information custodians’ compliance with the PIPA. The TLRI considers that strengthened data breach notification measures should be implemented in Tasmania; this is discussed in more detail in Part 8. Additional resources would need to be made available to assist personal information custodians to comply with data breach notification requirements. 

Other legislative provisions outside the Personal Information Protection Act 2004 (Tas) (‘PIPA’) that impact the privacy of government-held information 

Rights relating to the handling of personal information and the right to information held by government agencies are closely related. Yet, unlike in other jurisdictions, there is a lack of clarity as to the relationship between the privacy protections in the PIPA and freedom of information rights in the Right to Information Act 2009 (Tas) (‘RTI Act’). There is also uncertainty regarding the interaction of the PIPA with other legislative schemes that have provisions restricting the sharing of government-held information or providing for access to information. Accordingly, it is the TLRI’s view that there should be a close examination of the relationship between the provisions of the PIPA and other Tasmanian legislation with a view to obtaining greater harmonisation and consistency between them (see Part 9). Other legislation provides protection against multiple forms of harm to privacy interests but these are generally limited to activities or circumstances in which specific interferences with privacy might occur. These include stalking, harassment, image-based abuse (previously called ‘revenge pornography’), governmental or workplace surveillance, and handling of health information. 

In relation to the issue of the adequacy of the surveillance legislation applying in Tasmania ([10.2]– [10.11]), the TLRI notes that generally the approach under the Listening Devices Act 1991 (Tas) and the Police Offences Act 1935 (Tas) provides a broad safeguard for individual privacy. Nevertheless, the TLRI considers that there is scope to expand existing surveillance protections contained in the Listening Devices Act 1991 (Tas) to cover a broader range of technologies, such as visual and tracking devices, as exists in most other jurisdictions. 

Stalking, harassment, and bullying may in some circumstances involve interference with privacy— whether through intrusion upon seclusion (also referred to as physical privacy, meaning a person’s bodily or territorial privacy) or through the malicious use of private information against the person concerned (for example, to intimidate, blackmail, or otherwise coerce that person). As with other egregious interferences with privacy, these behaviours may cause humiliation, psychological distress, or intimidation. 

After reviewing the legislation that exists in other jurisdictions, and taking into account the submissions received, the TLRI’s view is that there are areas in which the laws that apply in relation to stalking and bullying could be strengthened in Tasmania to provide greater clarity around, and better protection for, physical privacy. There is also a need to enact State-based offences relating to distributing an intimate image without consent or threatening to distribute an intimate image. This is consistent with the National Statement of Principles relating to the Criminalisation of the Non-consensual Sharing of Intimate Images, which sets out principles for nationally consistent criminal offences.

The Recommendations are

Recommendation 1: The definition of ‘personal information’ in the PIPA should be amended to: • replace ‘about’ with ‘relating to’; and • introduce a non-exhaustive list of information that may fall within the definition of personal information. 

Recommendation 2: Further consideration should be given to: • amending the definition of ‘personal information’ by replacing ‘reasonably ascertainable’ with ‘reasonably identifiable’; and • providing further guidance for personal information custodians by inserting a non-exhaustive list of circumstances to which PIPA personal information custodians will be expected to have regard in assessing whether identity is ‘reasonably identifiable’. 

Recommendation 3: The PIPA should be amended to insert a definition of ‘de-identified’ that is consistent with the definition in the Privacy Act 1988 (Cth) and that clarifies that ‘de-identification is a process, informed by best available practice, applied to personal information which involves treating it in such a way such that no individual is identified or reasonably identifiable in the current context’. 

Recommendation 4: Further consideration should be given to whether the PIPA should be amended to: • introduce a criminal offence for ‘malicious re-identification’ of de-identified information where there is an intention to harm or obtain an illegitimate benefit; and/or • introduce a prohibition on PIPA personal information custodians from re-identifying information obtained from a source other than the individual to whom the information relates. 

Recommendation 5: The definition of ‘sensitive information’ in the PIPA should be amended to include: • biometric information used for the purpose of automated biometric verification or biometric identification; • biometric templates; and • genetic information about an individual that is not otherwise health information. 

Recommendation 6: If Recommendation 1 is implemented, the definition of ‘sensitive information’ should also be amended to replace ‘about’ with ‘relating to’. 

Recommendation 7: The definition of ‘health information’ in the PIPA should be amended to align with the definition of ‘personal information’. 

Recommendation 8: In line with developments at the Commonwealth level and the desirability of consistency with the approach in other jurisdictions, further consideration should be given to amending the PIPA to expand the definition of ‘sensitive information’ to: • include genomic information; and • include inferences about sensitive information. 

Recommendation 9: Pending the outcome of the Commonwealth Privacy Act Review, further consideration should be given to amending the PIPA to: • insert a definition of geolocation tracking data; and • specify that such geolocation tracking data can only be collected, used, disclosed, and stored with consent. 

Recommendation 10: Section 12 of the PIPA should be subject to further consultation with public authorities, to clarify whether the provision is necessary in light of other information-sharing provisions in the PIPA. 

Recommendation 11: The employee information exemptions in the PIPA should be removed. 

Recommendation 12: The public information exemption in the PIPA should be removed. Consideration should be given to ensuring that appropriate resources, guidance and transition periods are set to enable public authorities to comply with this amendment. 

Recommendation 13: A definition of ‘law enforcement information’ should be included in the PIPA.  

Recommendation 14: The public benefit exemption mechanism should be amended to either: (a) introduce a mechanism making Ministerial public benefit determinations subject to disallowance by the Parliament; or (b) if Recommendation 47 is adopted and an independent office-holder (such as an information commissioner or a privacy commissioner) is established, confer the power to make public benefit determinations on that office-holder, subject to disallowance by the Parliament. 

Recommendation 15: There should be appropriate exemptions for information handling in emergency situations in the PIPA. 

Recommendation 16: The term ‘collects’ should be defined in the PIPA, and the definition should include inferred and generated information. Recommendation 17: PIPP 1(3) should be amended to require personal information custodians to disclose who else may have access to the information once collected. 

Recommendation 18: PIPP 1 should be amended to require personal information custodians to take reasonable steps to give notice of collection at or before the time of collection or, if that is not practicable, as soon as practicable after collection. 

Recommendation 19: Further consideration should be given to the recommendations of the Commonwealth Privacy Act Review in relation to whether the PIPA requirements relating to collection notices should be amended to: • require that collection notices should be clear and understandable (including where addressed to a child) and accessible; and • require that collection notices contain additional details, such as details of the circumstances of handling where a high-risk activity is involved, information about the privacy policy and what it contains, and information about individual rights and types of information that may be disclosed to cross-border recipients. 

Recommendation 20: PIPP 1 should be amended to enable personal information custodians to collect personal information about an individual from a person other than the individual, where the individual has consented or the custodian is required by law to collect the information. 

Recommendation 21: The PIPA should be amended to insert a definition of ‘consent’ consistent with the definition of valid consent in the OAIC Guidelines on the Australian Privacy Principles. 

Recommendation 22: Guidance on the design of consent requests for online services should be available to personal information custodians. 

Recommendation 23: PIPP 1 should be amended to specify how personal information custodians should respond to receiving unsolicited information. 

Recommendation 24: Further consideration should be given to aligning the PIPA with the Privacy Act in relation to cross-border in terms of: • whether personal information custodians should be required to hold a reasonable belief that there are mechanisms for the individual to enforce existing privacy protections prior to cross- border disclosure; • whether personal information custodians should be required to expressly inform individuals that, if the individual consents to cross-border disclosure, the custodian will not be obliged to take reasonable steps to ensure the recipient does not breach the PIPP (and, per the Privacy Act Review’s further proposal, that privacy protections may not apply to the recipient); and • whether personal information custodians retain responsibility for breaches of the PIPPs after they have taken reasonable steps to ensure the recipient deals with the information consistently with the PIPPs. 

Recommendation 25: The PIPA should be amended to include a definition of ‘disclosure’ consistent with the current definition in the OAIC Guidelines on the Australian Privacy Principles. 

Recommendation 26: The PIPA should be amended to require that collection, use and disclosure of personal information must be fair and reasonable in the circumstances, in line with the recommendation of the Privacy Act Review. 

Recommendation 27: The PIPA (PIPP 1) should be amended to require personal information custodians to determine and record the purposes of collection, use, and disclosure of personal information, including any secondary uses or disclosures. 

Recommendation 28: The scope of PIPA information handling exceptions relating to requirement or authorisation under law should be clarified. 

Recommendation 29: The PIPA should be amended to state that consent to personal information handling must be ‘voluntary, informed, current, specific, and unambiguous’, in line with the proposal of the Privacy Act Review. 

Recommendation 30: The Tasmanian Government should participate in cross-jurisdictional work on the scope and harmonisation of research exceptions in privacy legislation (as proposed by the Privacy Act Review), including in relation to the introduction of a ‘broad consent’ option for research-related personal information handling. 

Recommendation 31: Further consultation with stakeholders, including children and young people and their parents and carers, should be undertaken to ensure that privacy protections under the PIPA are appropriate for children and young people and are consistent with contemporary understandings of children’s decision-making capacity. Matters for consultation may include: • whether the PIPA should be amended to specify that consent to information handling will only be valid where the individual has capacity to consent;  • whether the PIPA should be amended to establish exceptions to consent requirements where seeking consent from a parent or guardian would be inappropriate or harmful for the child or young person; and • whether guidance should be developed to assist personal information custodians to assess the capacity of children and young people on a case-by-case basis. 

Recommendation 32: Guidance on capacity and consent, including guidance on recognising and facilitating supported decision-making, should be available to personal information custodians. 

Recommendation 33: An individual ‘right to object’, with the same features as the right proposed by the Commonwealth Privacy Act Review, should be introduced in the PIPA. 

Recommendation 34: PIPP 4 should be amended, in line with the corresponding proposals of the Commonwealth Privacy Act Review, to: • provide further guidance to personal information custodians on the ‘reasonable steps’ they must take to protect personal information; • set baseline privacy outcomes personal information custodians must meet to fulfil their data security obligations; and • require personal information custodians to set and periodically review retention periods for personal information. 

Recommendation 35: Consideration should be given to whether further guidance on PIPA-compliant destruction and de-identification of personal information by personal information custodians, similar to the revised guidance proposed by the Commonwealth Privacy Act Review, is necessary. 

Recommendation 36: An individual ‘right to erasure’, with the same features as the right proposed by the Commonwealth Privacy Act Review, should be introduced in the PIPA. 

Recommendation 37: There should be a review of all Tasmanian legislation that requires retention of personal information to ensure it appropriately balances policy objectives and privacy and cyber- security risks. 

Recommendation 38: PIPP 6 should be amended to require a personal information custodian to: • provide individuals with access to their personal information upon request; • provide access to personal information in the manner requested by the individual, as long as this is reasonable and practicable, without charge; • give written notice of the reasons for a refusal to give access and the mechanisms available to complain about the refusal (which are discussed further in Part 8 of this Report); and • adopt a presumption in favour of disclosure. 

Recommendation 39: PIPP 6 should be amended to simplify the process for requesting access to personal information. These amendments should clarify the interaction of the PIPA and the RTI Act.  

Recommendation 40: PIPP 6 should be amended to confer an individual right to explanation about personal information, including a right to explanation of the source of personal information collected indirectly, and a right to an explanation or summary of what a personal information custodian has done with the personal information. 

Recommendation 41: Part 3A of the PIPA should be amended to: • modify the operation of Section 17G to enable a person to request (rather than require) the personal information custodian to add information to a notation; • require a personal information custodian to provide a written notice of a refusal of a request to add information to a notation; and • extend the right to correction in Section 17A to enable persons to request amendment of incorrect, incomplete, out-of-date or misleading information in generally available publications online over which a personal information custodian maintains control. 

Recommendation 42: Individual rights to access and explanation, to object, to erasure, and to correction in the PIPA should be subject to the exceptions proposed by the Commonwealth Privacy Act Review; namely, where: • there are competing public interests; • required or authorised by law or legal relationships; and • technically infeasible or an abuse of process. 

Recommendation 43: Personal information custodians should be required to provide ‘reasonable assistance’ to individuals in exercising a right, take ‘reasonable steps’ to respond to an exercise of a right, and respond within a prescribed timeframe, unless a longer period is justified. 

Recommendation 44: There should be greater clarity around how personal information custodians should meet the requirements of PIPP 5. This should include: • specifying the type of information that must be included in privacy policies made under PIPP 5; and • requiring personal information custodians to designate a senior employee as privacy officer responsible for compliance with the PIPA. This could be implemented by amendment to legislation or regulation, or the development of guidelines. 

Recommendation 45: The PIPA should be amended to: • require personal information custodians to specify the types of personal information that will be used in automated decision-making; and • establish a right to request meaningful information about how such decisions are made. 

Recommendation 46: Guidance should be developed to support personal information custodians to meet new requirements relating to automated decision-making. 

Recommendation 47: Consideration should be given to: • the most appropriate form that a body responsible for broadened enforcement and compliance functions under the PIPA should take; and • ensuring adequate resourcing for that body. 

Recommendation 48: Consideration should be given to the introduction of a requirement for the Ombudsman (or other complaints-handling body) to consider the appropriateness of conciliation when dealing with a complaint. There should also be jurisdiction for TasCAT to hear a complaint if the Ombudsman (or other complaints-handling body) decides that it is not reasonably possible that a complaint be conciliated successfully. 

Recommendation 49: Community consultation should be undertaken to ensure that changes to complaints and review processes under the PIPA are available and accessible to all in the community. 

Recommendation 50: Decisions of the Ombudsman (or other complaints-handling body) in relation to PIPA complaints should be reviewable by TasCAT. 

Recommendation 51: TasCAT should be empowered to make appropriate orders against personal information custodians, where all or part of a PIPA complaint has been proven. 

Recommendation 52: Consideration should be given to strengthening the enforcement regime through: • the creation of offences for certain conduct; • a civil penalty regime; and/or • the creation of additional enforcement mechanisms such as injunctions and enforceable undertakings. Guidance can be sought from the provision in other Australian jurisdictions as to the scope of the regimes. 

Recommendation 53: The power of the Ombudsman (or other complaints-handling body) to conduct investigations into breaches of the PIPPs, regardless of whether a complaint has been received, should be clarified. 

Recommendation 54: The PIPA should be amended to enable the creation of privacy codes. 

Recommendation 55: The TLRI recommends that Tasmania introduce a data breach notification scheme based on the Commonwealth model. Recommendation 56: There should be a close examination of the relationship between the provisions of the PIPA and other Tasmanian legislation with a view to obtaining greater harmonisation and consistency between them. In this review, there is a need to ensure privacy protection is maximised to the extent that is possible in balance with other policy interests. 

Recommendation 57: The Tasmanian Government should undertake a review of provisions that present legislative barriers to the sharing of information within government and with relevant non- government organisations in the interests of protecting the safety and wellbeing of children and young people, people in family violence situations, abuse of elder persons and people with disabilities. 

Recommendation 58: Consideration should be given to reform of the listening devices legislation to strengthen protections for individuals against surveillance by optical surveillance devices, tracking devices, and data surveillance devices. 

Recommendation 59: Consideration should be given to improving the resources made available to allow for independent monitoring of police use of surveillance devices by the Ombudsman. 

Recommendation 60: A review should be conducted that examines the adequacy of the existing laws relating to stalking and intimidation in Tasmania and that considers whether there is a need to amend these laws to take better account of technological advances. The following could be considered in the review: • whether the crime of stalking and bullying in the Criminal Code (Tas) Section 192 should be amended to include intimidation based on the New South Wales approach—with intimidation being defined separately from stalking—and the provision should be changed to recognise that a single act, or a pattern of behaviour, may be taken into account in the determination of stalking or intimidation; • the extent to which behaviour that amounts to harassment is adequately protected for the purposes of the Family Violence Act 2003 (Tas); and • whether the crime of stalking and bullying in the Criminal Code (Tas) Section 192 should be amended to more clearly criminalise surveillance conducted by technology; for example, by installing tracking and spyware applications on mobile phones, electronic devices, and vehicles, as well as installing covert cameras and the use of drones. 

Recommendation 61: Tasmania should, in line with other jurisdictions, enact state-based legislation to create offences of distributing an intimate image without consent or threatening of distribute an intimate image. In the creation of such an offence, the law should make it clear that the prohibition extends to the distribution (or threat to distribute) images created or modified by the use of artificial intelligence. 

Recommendation 62: There should be further consideration of necessary reforms to the PIPA, or the creation of standalone legislation, to align Tasmanian regulation with the National Health Interoperability Plan. 

Recommendation 63: If a national statutory tort is not adopted by the Commonwealth in the near future, consideration should be given to the introduction of Tasmanian legislation to create a statutory tort of privacy.

Sentience

'Nature as a sentient being: Can rivers be legal persons?' by Asanka Edirisinghe and Sandie Suchet‐Pearson in (2024) Review of European, Comparative & International Environmental Law comments 

The concept of ‘legal personhood and rights of rivers’ has developed as an alternative to anthropocentric legal frameworks that focus only on the instrumental values of rivers. Obtaining legal personhood marks a key milestone in legal recognition that could provide for the protection of rivers for more than the instrumental values that they hold. However, who could be considered legal persons is the subject of widespread debate in Western jurisprudence. Legalists hold that anything and anyone can be a legal person while Realists believe that a legal person is defined by certain attributes held only by certain categories of persons. One of the main arguments against the personhood of rivers raised by Realists is that rivers are not sentient beings and, consequently, they are incapable of holding the status of a legal person. The idea that nature is not a sentient being is mainly a Western construct. This research analyses the theory of legal personhood to determine whether rivers can and should be legal persons. It challenges the Realist claim that rivers cannot be legal persons because they lack sentience, drawing on Indigenous Vedda ontologies in Sri Lanka and Aboriginal worldviews from the continent now called Australia. The authors argue that a pluralistic approach to legal personhood is crucial in recognising and valuing our hyperconnected world, preventing categorisation, homogenisation and colonisation of ontologies and addressing sustainability challenges surrounding rivers. The research contributes to the existing scholarly work by defending the concept of legal personhood for rivers within a more pluralistic legal philosophy and addressing one of its major criticisms. 

According to Western jurisprudence, the law is for persons, and therefore, in a literal sense, if rivers are not legal persons, the law is not for them. Who can be considered a person in Western law is the subject of widespread debate and not all scholars and philosophers agree that rivers can or should be legal persons. Two primary schools of Western academic legal thought, namely, the Legalist and Realist schools, analyse the concept of legal personhood. The Legalist school adopts a more flexible perspective, considering a broader range of entities eligible for legal personhood. On the other hand, the Realist school adopts a more restrictive viewpoint, limiting legal personhood only to those entities who possess specific predetermined characteristics. This article analyses the theory of legal personhood to address the overarching research question of whether rivers can and should be legal persons. By drawing on Indigenous ontologies from Sri Lanka and the continent now called Australia, the authors challenge a key argument raised by the Realists against granting legal personhood to rivers, which is based on the notion that rivers are non-sentient beings. The authors argue that the notion of legal personhood must be viewed beyond the narrow confines of Western jurisprudence to avoid categorisation, homogenisation and colonisation of a hyperconnected world and to enable more pluralistic and just understandings of human–river relationships to underpin sustainability efforts. 

This article draws on three methodological approaches: the traditional ‘blackletter’ doctrinal approach to legal research, socio-legal research and international comparative research. The blackletter approach analyses the meaning and interpretation of the doctrine of legal personhood, referring to primary and secondary sources that are normative and/or authoritative. The socio-legal research complements and deepens the doctrinal research to ensure a rich understanding of the doctrine of legal personhood in the context of Sri Lanka. The research uses qualitative data gathered through semi-structured interviews conducted in 2023 with 32 key stakeholders in Sri Lanka, including Indigenous Vedda elders in Vedda village in Dambana, community elders in Perimiyankulama near Malwathu Oya River, environmental lawyers and scholars with expertise in Sri Lankan culture, tradition and religious practice. International comparative research illustrates the contrast between mainstream Western perceptions of rivers as objects or resources and the recognition of the sentience, agency and wisdom of rivers by many Indigenous communities. Drawing on examples from Sri Lanka and Australia due to the authors' expertise and the synergies between the places, it becomes evident that Indigenous communities in both countries hold profound relational values that are often suppressed and overshadowed by the impact of colonial Western worldviews and legal systems. 

In making our case, Section 2 introduces the notion of legal personhood. Section 3 examines the importance of attaching legal personhood to rivers. Section 4 analyses who is considered a legal person and explains the Legalist and Realist approaches to legal personhood. Section 5 justifies the recognition of rivers as legal persons in light of the Legalist approach to legal personhood and Earth jurisprudence. Section 6 challenges the Realist argument that rivers are not legal persons because they are not sentient beings. It discusses Indigenous Vedda worldviews in Sri Lanka and Aboriginal worldviews in Australia, which argue that rivers are imbued with sentience. The final section of the article lays down the conclusions.