Health Tech Transfer

'Technology transfer, intellectual property, and the fight for the soul of WHO' by Melissa Barber in (2024) 4(12) PLOS Global Public Health e0003940 comments 

 Debates over the scope, terms, and governance of technology transfer–the sharing of essential technical information, know-how, and materials needed to manufacture a health product–are prominent and controversial in international health diplomacy. These debates have become focal points in recent contentious negotiations to amend the International Health Regulations (IHR) and draft a global Pandemic Agreement. While some countries advocate for automatic or compulsory mechanisms to facilitate access to health technologies, especially in times of crisis, others oppose legal frameworks that mandate non-voluntary participation by the pharmaceutical industry. Also at stake are questions of institutional mandate: the United States has amplified calls by industry that pandemic technology transfer policy should be the domain of the World Trade Organization (WTO) instead of the World Health Organization (WHO). This essay offers a counternarrative to claims that WHO is overstepping its historic role in global governance. Far from being a contemporary development, technology transfer was at the heart of WHO’s work at its founding. WHO’s early failure to secure antibiotic technology transfer in the face of US opposition led to its first major crisis, prompting the withdrawal of several member states. In response, WHO embarked in the 1950s on a visionary programme to establish a global network of non-profit, state-run drug manufacturers and scientists committed to the free exchange of knowledge. This ambitious initiative has been largely forgotten, excluded even from WHO’s self-published accounts of historical technology transfer work. In the context of ongoing pandemic governance negotiations and the nascent mRNA hub program, remembering the lost vision of global solidarity embodied in WHO’s midcentury technology transfer program offers a glimpse into an alternate path we might still chart, one where access to medicines is not bound by the logic of enforcing scarcity to maximize profit, and the right to health is a global responsibility.

The Aesthetic Turn?

'Sovereignty and the Persistence of the Aesthetic' by Illan Wall and Daniel Matthews in (2024) Modern Law Review comments 

British constitutional thought tends to understand sovereignty in legalistic terms, with the concept often equated with the doctrine of parliamentary sovereignty. In the absence of a developed theory of popular sovereignty, sovereignty has become largely synonymous with this rule concerning the legislative competence of parliament. As Loughlin and Tierney have recently argued, this approach obscures the political dimensions of sovereignty which undergird the legal precept. They describe sovereignty as taking shape through the ongoing articulation of both legal and political relations. As Loughlin has argued elsewhere, sovereignty is best understood as having the form of a ‘double helix’ with the legal and the political running as anti-parallel strands. This article seeks to supplement this approach, arguing that instead of a doubled relation between law and politics, we should instead conceptualise a threefold process in which the legal, the political and the aesthetic are the essential elements which constitute sovereign forms. 

The article has two aims. The first is to retrieve, and give prominence to, the aesthetic dimensions of sovereignty within the history of political modernity. In the next section, we introduce the nature of aesthetics – as both a matter of appearances and perceptions – and indicate some of the reasons why this aspect of civil order has often been elided. Following this (in the third section) we engage with some well-known articulations of sovereignty − from the Hobbesian imaging of sovereignty, to early-modern efforts to map sovereign territory; from Rousseau's evocation of national sentiment, to Burke's description of how ‘dignity’ and ‘majesty’ are essential to the claim to sovereignty − before we conclude by examining the habituated feelings and instincts which Bentham understood to be central to the reproduction of sovereign relations. Our reading of this history draws out how the aesthetic persists across these varied approaches, but also aims to give a sense of the diversity of functions the aesthetic fulfils vis-à-vis sovereignty. Our account is obviously incomplete, both in terms of personnel and the range of aesthetic qualities it surveys; we tend to emphasise, for instance, the visual and affective qualities more than the sonic or haptic dimensions of sense perception. Nonetheless, our aim is to give priority to the aesthetic within the tradition of writing on sovereignty, in contrast to dominant approaches within constitutional thought which have either ignored, downplayed or obscured these concerns. 

Our second aim is more speculative. Whilst our reading of the history of political modernity suggests an important corrective, which draws out often underappreciated themes, it tells us nothing of how the aesthetic should be included in a theory of sovereignty. In a final, shorter, fourth section of the article we consider the different ways in which the aesthetic might be incorporated into constitutional theory, identifying three theses on the aesthetics of sovereignty: a totalisation thesis; an inadvertent or ‘weak’ inclusion; and finally, a ‘strong’ inclusion of the aesthetic, which we ultimately endorse. We conclude by suggesting that Loughlin's account of the double helix structure of sovereignty might be amended, contending that sovereignty takes the form of a triple helix in which law, politics and aesthetics are the strands which constitute the basic structure of the concept. Our aim here is speculative in that our approach opens the theorisation of sovereignty to new terrain, by insisting that the concept – particularly in the context of legal studies – needs to embrace not simply political but a range of aesthetic qualities and concerns if its meaning, implications and enduring importance are to be fully appreciated.

Frustration

Sounds like FOI and defective decisionmaking re for example RoboDebt? 'Rationing by Inconvenience: How Insurance Denials Induce Administrative Burdens' by Miranda Yaver in (2024) 49(4) Journal of Health Politics, Policy and Law 539–565 comments 

Context: How do health coverage denials keep care out of reach for American patients by imposing unevenly distributed administrative burdens? This article argues that the process of appealing insurers’ denials imposes administrative burdens on patients inequitably, deepening the divide between those with meaningful access to health coverage and those for whom benefits are out of reach. 

Methods: The author conducted a nationwide survey of 1,340 US adults on their experiences with coverage denials; this was supplemented with 110 semistructured interviews with patients, physicians, and former health insurance executives. 

Findings: Those who were less affluent were significantly less likely than their wealthier counterparts to appeal denials of coverage. Patients who underestimated the rate at which patients prevail in insurance appeals were less likely to appeal their own denials. Black Medicaid patients and those who were in worse health were significantly less likely to prevail in the appeals they pursued. Many unappealed denials were attributable to the significant administrative burdens associated with appeal, including learning and psychological costs. 

Conclusions: Administrative burdens associated with appealing denials of coverage can deepen health inequities along class and race lines, suggesting a need for policy interventions to make it easier to navigate the health insurance bureaucracy.

Coercion

The Parliamentary Joint Committee on Corporations and Financial Services report Financial abuse: an insidious form of domestic violence is claimed to mark "a crucial turning point in addressing financial abuse", characterised as "a tragically underacknowledged form of intimate partner and family violence that has often gone unseen or ignored": 

It has devastating effects on those it impacts. Financial abuse undermines the economic independence of the victim, often trapping them in cycles of financial hardship and dependency that can span decades, extending well beyond separation or divorce. This form of abuse is far more frequently perpetrated by men against women. It affects individuals at every stage of life. Women, especially those in vulnerable communities, are disproportionately affected by financial abuse, with women from culturally and linguistically diverse backgrounds, Indigenous communities, and women with disabilities facing even greater risks than the general population. This report exposes the shocking extent of financial abuse in Australia. 

The financial toll on victims of financial abuse is estimated at $5.7 billion (around $3 billion more than the amount lost to scams in Australia in 2023. The abuse is often absent from mainstream discussions of domestic violence,.

The report calls for comprehensive reforms across multiple sectors to address financial abuse, with 61 recommendations aimed at both preventing and mitigating the impact of financial abuse. The report contains five chapters. Chapter 1 includes information on the conduct of the inquiry, acknowledgements and background on the prevalence of financial abuse in Australia, how financial abuse sits with domestic and family violence and previous inquiries and reports.  Chapter 2 examines current legislation, common law and regulatory arrangements that govern the ability of financial institutions to prevent and respond to financial abuse. It also considers t the role of advocacy bodies in responding to financial abuse. Chapter 3 examines how financial providers identify, respond to and prevent financial abuse. Chapter 4 examines proposed areas for reform to better support victim-survivors of financial abuse.  Chapter 5  examines the role of government, and how government services can be manipulated by perpetrators to financially abuse victim-survivors. 

The Committee's recommendations are 

Recommendation 1  That the Australian Government establish a mechanism for co-design with victim-survivors of financial abuse (including through representative groups) in relation to the implementation of legislative, regulatory and sector-driven reforms aimed at mitigating the prevalence and impact of financial abuse, including the recommendations of this report. 

Recommendation 2   That the Australian Government amend the National Consumer Credit Protection Act 2009 and ASIC’s Regulatory Guide 209 to specifically require:  that the lender must take reasonable steps to be satisfied that a borrower and any guarantor is not experiencing financial abuse; and  that the lender must take reasonable steps to verify the lending requirements and objectives of each borrower and any guarantor. 

Recommendation 3  That the Australian Government establish a review of Responsible Lending Obligations and the National Credit Code, informed by the lived experience of victim-survivors, to consider options for:  protecting victim-survivors of family and domestic violence to obtain credit; and  the inclusion of specific conditions to support victim-survivors of family and domestic violence to stay in their own homes. 

Recommendation 4 That the Australian Government amend the National Credit Code to require financial institutions to inform all borrowers of changes to joint credit contracts in circumstances of reasonably suspected family and domestic violence, including financial abuse. 

Recommendation 5 That the Australian Government consider how to best allow financial institutions to document and/or flag actual or suspected financial abuse against their customers when detected or reasonably suspected, including without explicit consent from customers. This may include amendments to the Privacy Act 1988. 

Recommendation 6  That the Australian Government amend the Credit Reporting Code to specify that financial abuse is considered ‘circumstances beyond the individual’s control’; and that ARCA develop a best-practice financial abuse guideline for credit reporting bodies and credit providers. 

Recommendation 7 That the Australian Government undertake appropriate action, including legislation, to clarify that circumstances of family violence, elder abuse and homelessness constitute a serious threat to the life, health and safety of an individual. This may include amendments to the Privacy Act 1988. 

Recommendation 8 That the Australian Government amend the Insurance Contracts Act 1984 to allow insurers to deem a joint insurance policy to be a composite policy in situations involving separation or divorce of co-insurers, and in situations where a victim-survivor’s claim would ordinarily be denied due to the conduct of their perpetrator of financial abuse or coercive control. 

Recommendation 9 Recognising the legitimate choice of Australians to have self-managed superannuation funds, the committee recommends that the Australian Government undertake a review of the intersection between financial abuse and the superannuation system, particularly in relation to self-managed superannuation funds; and ensure that the review is informed by the lived experience of victim-survivors. 

Recommendation 10 That the Superannuation Industry (Supervision) Act 1993 be amended to provide a mechanism so that a beneficiary who has perpetrated domestic or family abuse, including financial abuse, and domestic violence related suicide, against the superannuation account holder can be declared an invalid beneficiary of the account holder’s superannuation death benefits. 

Recommendation 11 That the Australian Government undertake a review of all financial products and services and government services to ensure that a perpetrator cannot financially benefit from the death of victim-survivors, including in circumstances of domestic violence related suicide. 

Recommendation 12 That the Australian Government continue to monitor the effectiveness of the Family Law Act 1975 in recognising financial abuse. 

Recommendation 13 That state and territory law societies undertake a review of the ethical obligations of legal practitioners in relation to receipt of instructions which may have a financial abuse motive and available penalties for members who actively enable or facilitate financial abuse on behalf of their clients where there is no other reasonable basis underlying the instruction given by the client. 

Recommendation 14 That the Australian Government implement measures to achieve greater consistency in state and territory EPOA laws applying best practice to prevent financial abuse; and to promote education and awareness programs aimed at reducing elder abuse occurring through misuse of EPOAs. 

Recommendation 15 That the Australian Government implement a mandatory requirement for providers of financial services and products, as well as government agencies to include a ’quick exit’ button on webpages (in accordance with current best practice) to assist victim-survivors of family and domestic violence and financial abuse. 

Recommendation 16 That financial institutions introduce minimum operating standards, with a view to achieving best practice standards through continuous improvement over time, for including increased friction points in relation to online application processes and electronic transactions to better protect against financial abuse on online platforms. 

Recommendation 17 That the Australian Banking Association, the Australian Federal Police, victim-survivor advocate organisations and relevant government departments and other stakeholders co-design standard operating guidelines for the referral of reasonably suspected or reported financial abuse to the financial institutions used by suspected perpetrators and victim-survivors. Triggers for referral should include credible reports made to anonymous law enforcement hotlines, informal and formal reports made to law enforcement, and court proceedings such as the attainment of AVO’s. The Australian xiii Government should consider any legislative amendments required to give effect to such standard operating guidelines. 

Recommendation 18 That financial institutions be required to maintain anonymous reporting mechanisms through which victim-survivors of domestic and family violence, or other individuals, can report actual or suspected financial abuse of the institutions’ customers. 

Recommendation 19 That financial institutions ensure that a referral or report of suspected family and domestic violence involving one of their customers triggers immediate engagement with that customer, preferably through in-person attendance at a physical branch or office, to determine the suitability of their current and future financial products. 

Recommendation 20 That financial institutions immediately review the accessibility of their in- person banking services and, where necessary, take steps to ensure that customers have reasonable access to in-person banking services or banking support services. 

Recommendation 21 That the Australian Government, in conjunction with the Australian Financial Complaints Authority, consider potential remedies for customers suffering financial abuse who have suffered loss after a financial institution has failed to provide reasonably appropriate access to in-person banking services or other support services in circumstances where the financial institution was aware (or should have been aware) that the customer was at high risk of financial abuse. 

Recommendation 22 That financial institutions, government and relevant stakeholders all increase financial literacy education and in-person support to assist older Australians to use electronic banking services and reduce the risk of financial elder abuse. 

Recommendation 23 That the Australian Banking Association develop and implement minimum operating standards, with a view to moving to best practice standards through continuous improvement over time, applying to all authorised deposit-taking institutions in relation to identifying and responding to abusive descriptions in electronic money transfers. xiv 

Recommendation 24 That the Australian Government consider introducing appropriate penalties for the use abusive descriptions in electronic money transfers to harass, intimidate or harm the holder of the account. 

Recommendation 25 That, prior to approving joint banking or credit products, financial institutions implement reasonable and practical continuous disclosure requirements relating to family and domestic violence to assist with the identification of financial abuse. 

Recommendation 26 That the Australian Government legislate to require financial institutions to ensure the following requirements for establishing a joint account:  that each joint account holder has their own access to the account;  that each joint account holder is aware of and has consented to what information will be visible and/or shared with the other account holder; and  that each joint account holder understands the mechanisms available to ensure the safety of the account, such as ’two to sign’, before withdrawals can be made. 

Recommendation 27 That financial institutions implement the recommendations of ASIC’s report titled Hardship, hard to get help: Findings and actions to support customers in financial hardship relating to identifying and providing additional support to vulnerable consumers experiencing financial hardship. 

Recommendation 28 That ASIC conduct a review within 24 months on the implementation and operation of the recommendations of its report titled Hardship, hard to get help: Findings and actions to support customers in financial hardship relating to identifying and providing additional support to vulnerable consumers experiencing financial hardship. 

Recommendation 29 That the Australian Government implement a legislative requirement for financial institutions to report periodically on the number of customers identified as experiencing financial abuse, similar to the current requirements for financial hardship. 

Recommendation 30 That the Australian Government undertake a review of the amendments to the National Consumer Credit Protection Act 2009 in the Treasury Laws Amendment (Responsible Buy Now Pay Later and Other Measures) Bill 2024, to commence within 24 months of the amendments coming into effect, to consider their effectiveness in supporting victim-survivors of financial abuse, and specifically the inclusion of Buy Now Pay Later products under Responsible Lending Obligations. 

Recommendation 31 That the Banking Code of Practice, Customer Owned Banking Code of Practice and the Buy Now Pay Later Code of Practice be amended to:  include specific reference to financial abuse under ’vulnerable customers’; and  require banks to develop systems to proactively identify (to the extent reasonably practical) and offer support to customers who may be experiencing financial abuse. 

Recommendation 32 That the general insurance industry implement minimum operating and customer-service standards, with a view to moving to best practice standards through continuous improvement over time, relating to identifying and responding to financial hardship being experienced by victim-survivors of financial abuse. 

Recommendation 33 That the Australian Government amend the Insurance Contracts Act 1984 to require a ’conduct of others’ clause in all retail insurance policies. 

Recommendation 34 That Part 9 of the General Insurance Code of Practice and the Life Insurance Code of Practice be amended to define family violence and financial abuse and to better promote the financial safety of victim-survivors of family and domestic violence. 

Recommendation 35 That the Australian Government undertake a review of the COVID-19 early release of super scheme, with a focus on the number of members who may have withdrawn superannuation savings under coercion and the retirement and other impacts on victim-survivors who accessed their superannuation as a result of financial abuse; and consider an appropriate scheme for the xvi repayment of superannuation by individuals whose withdrawals were the direct result of financial abuse, to enable them to restore their superannuation balances. 

Recommendation 36 That the Australian Government consider the implementation of minimum operating standards, with a view to moving to best practice standards through continuous improvement over time, to mitigate the risk of elder abuse in relation to superannuation. 

Recommendation 37 That accounting bodies, financial advice and planning peak bodies, and victim-survivor advocate organisations co-design education resources for service providers to enable increased identification of financial abuse and timely reporting of suspected abuse to financial institutions and law enforcement bodies. 

Recommendation 38 That accounting, financial planning and financial advice industry bodies develop and review ethical obligations of their profession in relation to receipt of instructions which may have a financial abuse motive and institute accompanying penalties for members who actively enable or facilitate financial abuse on behalf of their clients where there is no other reasonable basis underlying the instructions given by the client. 

Recommendation 39 That the finance sector develops a financial Safety by Design framework and assessment tools. The committee further recommends that the framework is developed in consultation with the financial services industry, victim- survivors, family and domestic violence academics, community service providers and regulatory design experts. 

Recommendation 40 That financial institutions that provide mortgages implement the standard practice of offering multiple offset accounts for joint mortgages. 

Recommendation 41 That the Australian Government expand the Design and Distribution Obligations to include consideration of customers impacted by family and domestic violence, including financial abuse, and the potential for perpetrators to cause harm by misusing products and services. 

Recommendation 42 That financial service and product providers ensure that financial abuse is explicitly referenced in the terms and conditions for all financial products. 

Recommendation 43 That financial institutions implement minimum operating standards, with a view to moving to best practice standards through continuous improvement over time, for the introduction of positive friction points to minimise the risk that a customer is applying for a product under coercion or duress or without providing free and informed consent. 

Recommendation 44 That financial institutions ensure that, in addition to general training about family and domestic violence, all employees have training in financial abuse that is appropriate to their level and role. 

Recommendation 45 That financial institutions, government and relevant stakeholders all provide appropriate support to culturally and linguistically diverse consumers through:  culturally appropriate financial literacy programs and plain language product descriptions or ways of talking about financial abuse to promote financial awareness and help-seeking; and  where a language barrier is identified, the provision of interpreters and employees trained in providing interpreting services in the family violence context. 

Recommendation 46 That the Australian Government support Aboriginal Community Controlled Organisations to develop training and education programs for financial providers to increase understanding of financial and economic abuse of Aboriginal and Torres Strait Islander Australians. 

Recommendation 47 That the Department of Defence and financial institutions co-design best practice guidelines to assist financial services to address the specific needs of defence force families who may be experiencing financial abuse. 

Recommendation 48 That the Australian Government consider the establishment of a reporting process relating to the relative effectiveness of financial products and xviii government services in preventing and addressing financial abuse. This may include a benchmarking process or reporting framework administered by a government agency or through funding provided to an independent non- government organisation or body such as the Australian Banking Association. 

Recommendation 49 That the Australian Government make the necessary legislative and regulatory changes to enable the Australian Taxation Office to assume responsibility for government child support collections, replacing the Agency Collect program currently managed by Services Australia. 

Recommendation 50 That the Australian Government mandate annual payer and payee declarations to the Australian Tax Office for individuals in private child support payment arrangements; and require appropriate acquittal documentation, including but not limited to bank statements, to substantiate all declarations. 

Recommendation 51  That, where an annual payer declaration shows that child support payments are not reasonably aligned with payee child support entitlements, or where an annual payer declaration is not made, Private Collect child support payment arrangements automatically convert to Agency (Australian Tax Office) Collect child support arrangements. 

Recommendation 52 That, at the end of each financial year, the Australian Government provide child support payees with refundable tax credits equal to any shortfall in child support payments for the preceding year; and raise a corresponding tax debt against the relevant child support payer, collectable by the Australian Tax Office as a debt owed to the Commonwealth. 

Recommendation 53 That the Australian Government undertake a review of the formulas used to determine child support payments; and ensure that the review is informed by the lived experience of victim-survivors. 

Recommendation 54 That the Australian Government develop a tax relief model for victim- survivors of financial abuse similar to the United States IRS ‘innocent spouse relief’ provisions. 

Recommendation 55 That the Australian Government amend the Corporations Act 2001 to ensure that the company director provisions appropriately recognise family and domestic violence, including financial abuse, as a reason why a director may be regarded as not in fact managing a company. 

Recommendation 56   That the Australian Government extend the time period allowed to respond to a Director Penalty Notice in cases of reasonable claims of financial abuse. 

Recommendation 57   That the Australian Government undertake a review of current legislative and regulatory settings relating to trusts, with a view to addressing the abuse and misuse of trusts as a mechanism for financial abuse and coercive control. 

Recommendation 58  That the Australian Government amend the Social Security Act 1991 to:  remove the requirement that a person has to have left their home to qualify for crisis support payment;  lengthen the time in which a person has to apply for a crisis payment; and  ensure that a victim-survivor is not precluded from accessing a ‘special circumstances’ waiver if a perpetrator lies to Centrelink without the debtor’s knowledge or consent, or the debtor makes a false statement or misrepresentation as a result of coercion or duress by a perpetrator. 

Recommendation 59   That the Australian Government establish a standing inter-departmental taskforce to oversee the implementation of safety-by-design principles into all government services. 

Recommendation 60   That all relevant government agencies provide training to frontline staff on the identification of domestic and family violence, including financial abuse, and require mandatory reporting of suspected financial abuse 

Recommendation 61   That all relevant government entities providing frontline services establish dedicated teams with

Extremism

Chapter Seven of the Senate Legal and Constitutional Affairs Committee report Right Wing Extremist Movements In Australia states 

7.1 Australia is a healthy and vibrant democracy. Freedom of speech is fundamental to Australia’s values. Political views become unacceptable when individuals or groups use fear, terror, or violence to further or achieve ideological aims. Ashift from peaceful political engagement to the promotion, or use, of violence is incompatible with liberal democracy. The threat or use of violence against specific groups of people is an attack against our shared values. Violent extremism must not be tolerated in Australia. 

Defining extremism 

7.2 It is challenging to precisely define right wing extremism. A wide range of defining characteristics were provided to the committee. This included hostility towards minority groups, liberal democracy, a pluralistic society, and equality. 

7.3 Some right wing extremists condone the threat or use of violence to further their goals or defend their position in what they see as a decaying social order. They justify violence to advance their extreme ideology. 

7.4Australian intelligence and law enforcement agencies explained that it is not helpful to categorise extremism according to a binary left-right conceptualisation of political ideologies. Those agencies reported that extremists increasingly adopt hybrid ideologies that do not fit neatly on the political spectrum. 

7.5 Australian intelligence and law enforcement agencies have developed two broad categories of politically motivated violence that are further divided into more specific sub-‍categories. Those broad categories are: religiously motivated violent extremism; and ideologically motivated violent extremism. 

7.6 Ideologically motivated violent extremism is further divided into a range of sub-‍categories including: nationalist and racist violent extremism; anarchist and revolutionary violent extremism; and specific issue violent extremism. 

7.7 For the purposes of this inquiry, much of the evidence received by the committee related to individuals and groups who fall within the category of nationalist and racist violent extremism, including neo-Nazis and white supremacist groups. 

Nature and extent of extremism in Australia 

7.8 There is a long history of extremism in Australia. The views of Australian extremist movements reflect the sociopolitical context of the time and evolve according to that context. 

7.9 Ideologically motivated violent extremism is rising globally, and Australia is not immune to that trend. Disturbing evidence was received by the committee of communication between extremists based elsewhere in the world and those based in Australia, often in the online environment. 

7.10 Australian extremists have built links with international movements that reflect their ideological position. They have developed these links to create a shared community that can provide ideological, discursive, financial, and organisational support. 

7.11 Extremists opportunistically co-opt elements of mainstream culture to give their movements and ideological views greater credibility, to appeal to a wider audience, and to lure people into their extreme world view. Radicalised individuals can be encouraged to consider, or even commit, violent acts. 

7.12 The internet facilitates the rapid sharing of this culture and the creation of a globalised extremist movement. For some individuals, joining a large and active community can satisfy an unmet need for social connection. 

7.13 For example, the committee learned of the transnational so called active club network, which is used by extremists to build a community on shared principles. Those communities are designed to appear innocuous to outside observers as well as law enforcement and intelligence agencies. 

7.14 Active clubs are usually decentralised and are only loosely connected to each other. To outside observers they appear to focus on brotherhood and physical fitness. However, they may provide participants with an introduction to extremist ideologies and promote an extreme ideology. 

7.15It is noted that the Australian Security Intelligence Organisation (ASIO) reported that it is aware of the active club model and, at the time of giving evidence to the committee, it had assessed that it presents a low risk of politically motivated violence. 

7.16Concerningly, in August 2024, during this inquiry, ASIO raised the terrorism threat level to PROBABLE. There is a greater threat of people radicalising and using violence to further their ideological cause. 

7.17 As at November 2024, there have been nine attacks, disruptions or suspected terrorist incidents in Australia. In ASIO's assessment, most of those incidents were motivated by nationalist and racist ideologies or a hybrid of ideologies. All those incidents involved lone actors or small groups and low-capability weapons. 

7.18 It is deeply concerning that law enforcement and intelligence agencies reported that many radicalised individuals the subject of their investigations are young people. TheAustralian Federal Police informed the committee that it has commenced investigations and conducted operational activity against a number of people under the age of 16, with the youngest person being 11 years old. 

Mainstreaming of extremist ideas 

7.19 The committee received evidence to suggest that extremists aim to make their ideas and ideologies more politically and culturally accessible and acceptable. They do that through the spread of propaganda both in physical spaces and on widely used online platforms. 

7.20 Mainstream online platforms can act as gateways to more radical or extremist content hosted elsewhere online. 

7.21 Some extremists overtly pursue radical social change using violence or through the distribution of vile propaganda material intended to vilify and instil fear in minority groups. Others adopt more nuanced tactical approaches, distorting and manipulating mainstream political issues to lure people, including young Australians, into their extreme ideological domain. 

The threat posed by extremism 

7.22 Extremist movements pose a threat to Australian society and Australian values. Certain communities and groups of Australians are at particular risk. Thecommittee received evidence that highlighted how these Australians are subjected to dehumanising propaganda and targeted by extremists. 

7.23 A range of communities were identified as being at particular risk from extremist actors. Those communities include: First Nations peoples; culturally diverse communities; religious communities; women; migrants; LGBTQIA+ people; and young people. 

7.24 Australians who belong to minority groups reported the feeling of alienation and exclusion associated with being targeted by extremists. Their evidence demonstrated that even non-violent actions can have severe consequences for their sense of belonging and participation in society. 

7.25 Nationalist and racist violent extremism is incompatible with Australian democracy. It is anathema to Australian values. 

Radicalisation 

7.26 The radicalisation process can be complex and idiosyncratic. There are a range of factors that could contribute to someone becoming susceptible to radicalisation. 

7.27 Those factors include: social isolation; a real or perceived loss of status or privilege; economic insecurity; a sense of marginalisation; 

7.28 Several inquiry participants cautioned against a simplistic approach to addressing radicalisation and violence. They warned that there is no straightforward 'conveyor belt' that carries individuals from exposure to extremist ideas, to radicalisation, to committing violent acts. 

7.29 The Australian Institute of Criminology identified three broad risk factors that contribute to radicalisation: sociodemographic characteristics, such as being male, young, unemployed or underemployed; psychological characteristics, such as low self-control, personal grievance, certain mental health conditions; and contextual characteristics, such as criminal history or associations with other radicalised persons. 

Measures to address extremism 

7.30 Throughout the inquiry, the committee heard that the criminalisation of extremist behaviour is unlikely to fully address the threat of violence and reduce the risk posed to the wider community. 

7.31 Some inquiry participants recommended that the response to extremism should primarily focus on addressing the potential for extremists to resort to violence and not on the ideology itself. People should be free to hold extreme ideas. However, they should be strongly deterred from using violence in furtherance of those ideas. 

7.32 Other inquiry participants suggested that a holistic approach is more appropriate. That approach would include providing resources that support civic engagement, strengthen civic institutions, and provide tools that weaken the appeal of extremist ideologies. 

7.33 Inquiry participants recommended that governments focus on: community outreach and engagement programs; deradicalisation initiatives; education programs that foster critical thinking skills, improve knowledge of civics, and instil a greater sense of empathy; and antiracism programs.  

Community outreach and engagement programs 

7.34 Civil society was recognised as an integral part of any response to extremism. Community organisations are often best placed to respond to extremism, asindividuals who belong to those communities often view those organisations as having greater credibility. The family also plays an important role. The committee received evidence regarding the effectiveness of involving parents in deradicalisation programmes. 

7.35 While government can provide assistance to community organisations, this does not necessarily provide a solution to the issue. Some individuals may mistrust government and government-led initiatives. 

7.36 Notwithstanding this, it was suggested that civil society organisations should be broadly supported so that they are able to continue to meet the social needs of individuals who may be drawn to radical ideologies. Civil society organisations provide individuals with meaning, connectedness, respect, and recognition. If they are not able to provide those outcomes, some individuals may turn to other sources and thereby become more susceptible to radicalisation. 

Deradicalisation initiatives 

7.37 The committee received evidence highlighting the importance of deradicalisation programs in countering violent extremism. 

7.38 A distinction was drawn between disengagement and deradicalisation. Disengagement refers to the disavowal of violence in the pursuit of an extreme ideology, while deradicalisation is a complete abandonment of a radical ideology. Individuals who have disengaged may still hold extreme beliefs but do not condone violence in the pursuit of that ideology. 

7.39 Violent extremists are often driven by emotion. Effective deradicalisation programmes may seek to engage people who have been radicalised on an emotional level to properly understand the factors in their lives that have motivated them to view violence as an appropriate means to further their ideological position. 

7.40 As individuals adopt extremist ideologies for idiosyncratic reasons, deradicalisation programs should be tailored to the specific needs of the individual. 

7.41 That support may require access to a multidisciplinary team of professionals depending on the unique needs of the individual. In some cases, it might also be appropriate to provide radicalised individuals with a mentor to help guide them on the path to rehabilitation. 

7.42 Some organisations with experience in providing deradicalisation programs suggested that former extremists who have been deradicalized may assist through the process. Their personal insights into extremism and radicalisation may be of particular benefit in some cases. 

7.43 The committee understands that deradicalisation and countering violent extremism initiatives require continuous evaluation and refinement to ensure that they are fit-for-purpose and responsive to the evolving threat environment. 

Recommendation 1 

7.44 The committee recommends that the Australian government undertakes periodic evaluation of Australian deradicalisation and countering violent extremism programs. That evaluation should involve experts engaged in those programs, law enforcement and intelligence agencies, and organisations that research countering violent extremism and deradicalisation. Any such periodic review should draw upon the experience both in Australia and overseas in other liberal democracies. Education and youth engagement programs 7.45Education was repeatedly highlighted as an effective tool in reducing the appeal of extremist ideology and weakening the propaganda disseminated by extremists. 

7.46 Instilling empathy for others was identified as an important facet of education. Empathy helps individuals better understand the perspectives of others and avoid the adoption of hateful ideologies. 

7.47 Several inquiry participants commented that the increased use of online platforms required a new approach to, and focus on media literacy, and critical thinking skills. 

7.48 Young people are at particular risk of developing links with extremist movements, as extremists often tailor their messages to appeal to young people. 

7.49 Young people are often at a stage of their life where they are testing their sense of self and developing their unique identity. They may be in positions of vulnerability and susceptible to insidious targeting from those purporting to provide social connection. Sometimes extremists position themselves to meet those psychological needs and to draw young people into the thrall of their extreme and hateful ideology. 

Recommendation 2 

7.50 The committee recommends that the Australian government develops a national framework for engaging with young people to deter them from radical extremism. That framework should provide best practice guidance to the states and territories and the broader civic community on how to engage with young people to: assist them in identifying harmful ideologies promoting violent extremism; deter them from adopting harmful ideologies promoting violent extremism; and provide them with the means to engage with the wider community in a socially positive way. 

The online environment 

7.51 The committee heard evidence in relation to the difference between ‘in real life’ and online extremism. The anonymity of the online environment is conducive to the sharing of violent rhetoric and harassment of individuals belonging to minority groups. Some people feel comfortable to say things online that they would never consider communicating in public. 

7.52 Some individuals find social fulfilment in online communities. They can meet a strong psychological need to feel part of a bigger movement. In the vast majority of cases, many of those communities contribute positively to wider society and perform a valuable social role. However, violent extremists may prey upon the psychological need of vulnerable people to perpetuate hate and promote their destructive cause. 

7.53 The online environment is where people are most likely to be exposed to fringe ideas and extreme ideologies. Individuals are likely to be exposed to that material even if they are not actively seeking it. 

7.54 Extremists are drawn to the internet not only for the anonymity, but also for the low barriers to access and its global reach. The internet provides them with a vehicle to recruit, radicalise, and inspire new adherents or reinforce the beliefs of other extremists. 

7.55 Efforts to remove offensive or objectionable content from the internet can be difficult. The committee received evidence that video footage of the despicable Christchurch terrorist attack and the perpetrator’s twisted manifesto continue to circulate online despite the New Zealand Chief Censor classifying it as objectionable content that is illegal to possess or distribute. 

7.56 It is clear that offensive, objectionable, and harmful material is likely to continue to circulate online despite efforts to regulate the online environment and remove that material. 

7.57 The Office of the eSafety Commissioner stated that it had not conducted research into the presence of ideologically motivated violent extremism online. It has conducted research into online hate, including in relation to children and young people’s experiences of hate on online gaming platforms. 

Recommendation 3 

7.58 The committee recommends that the Australian government conducts research into violent extremism in the online environment, including on: social media platforms; gaming platforms; and gaming-adjacent platforms. That research should examine how those platforms may be used by extremist actors to spread propaganda and recruit members, particularly in relation to young people. 

Social media platforms 

7.59 Social media platforms use algorithms to deliver content to their users. Those algorithms often prioritise similar material to the same user. Hence, there can be a compounding effect produced by the continual receipt by a user of emotive, shocking, and salient content, which can include extreme material. 

7.60 Depending on how individual users of those platforms engage with that content, over time they can find themselves presented with a larger volume of similar content. 

7.61 Extremists often use mainstream social media platforms as an initial point of contact with potential recruits, including vulnerable young people. If individuals engage with extremist content in a favourable way on mainstream platforms, they can be invited to closed sites where plans for violence can be discussed or promoted. 

7.62 In relation to the use of algorithms for content filtering on social media platforms, the committee heard that social media companies have in many instances reduced the level of transparency around how their platforms operate. 

7.63 The Christchurch Call, to which many social media companies are signatories, called for greater transparency around how those companies operate and the measures they have in place to regulate their platforms. The Office of the eSafety Commissioner told the committee that no social media company operating in Australia is adequately meeting its expectations under the Christchurch Call. 

7.64 The committee was told that independent researchers are not able to access the social media monitoring tools that were once available to them. Social media companies have discontinued the use of those tools, which make it difficult, if not impossible, for their efforts to enforce terms of service to be assessed by outside observers. The eSafety Commissioner indicated that the discontinuation of those tools has decreased public transparency and limited her office’s ability to monitor the presence of hate speech, abuse, disinformation, and extremist content on social media platforms. 

Recommendation 4 

7.65 The committee recommends that the Office of the eSafety Commissioner engages with stakeholders in relation to the development of best practice guidelines in relation to transparent and independent assurance measures to verify that social media platforms are enforcing terms of service to exclude harmful extremist content. Encrypted communication applications 

7.66 Online anonymity was raised as a major concern during the inquiry, particularly by law enforcement and intelligence agencies. The widespread use of encrypted communication applications allows violent extremists to conceal their identities and hide their communication from law enforcement and intelligence agencies. 

7.67 ASIO reported that virtually all of its priority counter-terrorism and counter-espionage investigations are frustrated by the use of encryption technology. 

7.68 While encrypted communication platforms may be used for nefarious ends, it is acknowledged that they can also have a socially beneficial role. Those platforms have been used to uncover information that has been suppressed by authoritarian governments and in investigations into corrupt or criminal practices by individuals and companies. 

7.69 Encrypted communications are integral to the proper functioning of the internet and play an important role in public transparency. Encryption protects privacy and assists in the investigation of wrongdoing. At the same time, encrypted communication technologies are used by violent extremist actors to conceal their activities from law enforcement and intelligence agencies. 

7.70 Law enforcement and intelligence agencies should be permitted access to encrypted communications in very specific cases that involve well-founded concerns for national security and where such access is regulated by the judicial system through the issue of warrants. That access is integral to those agencies being able to conduct their very important work that keeps Australians safe. As the extremist threat is globalised, Australian law enforcement and intelligence agencies are increasingly expected to be able to provide operational intelligence to their foreign counterparts. To ensure that violent extremism can be combatted wherever and whenever it emerges, it is vital that our law enforcement and intelligence agencies are equipped with the tools they need to effectively monitor and respond to national security threats, including those posed by extremists. 

Recommendation 5 

7.71 The committee recommends the Australian government considers introducing legislation that would enable Australian law enforcement and intelligence agencies to access encrypted communications if there is a well-‍founded threat to national security and a warrant has been issued by a judicial officer to access those communications. 

National hate crimes database 

7.72 Some participants in the inquiry advocated for the establishment of a national database to better track hate crimes. There are currently private organisations which are performing this invaluable civic function. It was also highlighted that there is no nationally consistent definition of what constitutes a hate crime in Australia, which can frustrate responses from law enforcement and human rights commissions. 

7.73 The lack of a nationally consistent understanding of what constitutes a hate crime has resulted in a reluctance to report those crimes and incomplete data about the extent of the problem. 

7.74 A nationally consistent approach to what constitutes a hate crime would facilitate a nationally consistent reporting and data collecting system. That system would: provide quantitative evidence of the efficacy of legislative measures that address hate and violence against targeted communities; assist law enforcement agencies in evaluating the effectiveness of their policing and education and training programs; and assist human rights commissions in developing advocacy programs and providing victim support programs. 

Recommendation 6 

7.75 The committee recommends the Australian government adopts a nationally consistent definition of what constitutes a hate crime and consider establishing a national hate crimes database.  

7.76 The committee recommends its finding and conclusions to the Senate.

Data

'Data is Infrastructure' by Elettra Bietti in (2024) Theoretical Inquiries in Law comments 

Data is a contextual phenomenon. It reflects the social and material context from which it is derived and in which it is generated. It embeds the purposes, assumptions and rationales of those who produce, collect, use, share and monetize it. In the AI and digital platform economy, data's role is primarily infrastructural. Its core uses are internal to companies. Data only rarely serves as a medium of exchange or commodity, and more frequently serves to profile users, train models, produce predictions, bundle and extend product capabilities which in turn are sold to advertisers and other customers. Insofar as they focus on the former, many technical, economic and legal attempts at defining data have inspired reductive policy efforts that include data protection, data ownership and limited data sharing remedies. This paper argues that understanding data as part of infrastructural pipelines can have significant conceptual and policy implications, and can redirect the way privacy, property and antitrust experts understand and govern data. This argument becomes more salient as market actors and regulators grapple with the catalyzing effects of neural networks and generative AI models on digital markets. In antitrust and competition law especially, regulators are consciously adopting a view of data as an infrastructural input into AI and other digital markets. Treating data as an input over which certain firms have competitive advantages can have significant implications for nascent AI markets, and yet the views in antitrust remain too narrow. Understanding data infrastructurally means viewing it not only as a critical input but also as inseparable from other material digital resources such as protocols, algorithms, semiconductors, and platform interfaces; as having important collective functions; and as calling for public interest regulation. Understanding data as infrastructure can move us past limited legal efforts and remedial solutions such as data separations, data sharing, and individual controls, and help reorient how data is produced, stored and managed toward public uses.

Surrogacy

The Australian Law Reform Commission (ALRC) is to review Australian surrogacy laws, policies and practices, having in mind 

• surrogacy providing Australians who are unable to give birth an opportunity to have a child; 
• the medically, emotionally, financially and legally complex nature of surrogacy arrangements; 
• the legislative responsibilities that states and territories have with regards to surrogacy laws, and current inconsistencies in legislative arrangements across Australian jurisdictions; 
• the human rights of children born of surrogacy, their surrogate mothers and intended parents, and the risks commercial surrogacy can pose to vulnerable women and children; 
• the increasing access by Australians to surrogacy arrangements and services overseas.

 The Terms of Reference direct the ALRC to identify reforms, particularly proposals for uniform or complementary state, territory and Commonwealth laws that: are consistent with Australia’s obligations under international law and conventions; and protect and promote the human rights of children born as a result of surrogacy arrangements, surrogates and intending parents, noting that the best interests of children are paramount. 

 In particular, the ALRC is further asked to consider: 

•  how to reduce barriers to domestic altruistic surrogacy arrangements in Australia, including by ensuring surrogates are adequately reimbursed for legal, medical and other expenses incurred as a consequence of the surrogacy; 
•  how surrogacy arrangements made outside of Australia should be addressed by Australian law;  
• what is the appropriate recognition of legal parentage in Australia for children born of surrogacy overseas, and how may citizenship, visa and passport requirements for children born of surrogacy overseas be aligned; 
•  the information that should be available to children born from surrogacy arrangements, including what information should be included on a child’s birth certificate in order to meet Australia’s human rights obligations under the Convention on the Rights of the Child. 

It is to consider Australia’s human rights obligations and any findings and recommendations of the 2021 Working Group on Surrogacy Final Report to Attorneys-General and Relevant Ministers: Opportunities to achieve national consistency in surrogacy regulation in Australia, the 2016 House of Representatives Standing Committee on Social Policy and Legal Affairs Surrogacy Matters report and Australian Government response, the 2013 Family Law Council report on Parentage and the Family Law Act 1975, the 2009 report of the Standing Committee of Attorneys-General A Proposal for a National Model to Harmonise Regulation of Surrogacy, the UN Special Rapporteur on the sale and sexual exploitation of children 2019 Thematic study of safeguards for the protection of the rights of children born from surrogacy arrangements and 2018 Thematic study on surrogacy and sale of children, and relevant reviews of state and territory surrogacy legislation since 2017.

The ALRC has been asked to deliver its final report to the Attorney-General by 29 July 2026. 

Privacy

'In Defense of Privacy-as-Control (Properly Understood)' by Michael Birnhack in (2025) 65 Jurimetrics comments 

Privacy-as-control (‘PaC’) is one of the dominant conceptions of privacy. PaC means that each person should be able to decide for themselves whether to disclose personal data to another person, company, or the state, when, how, and under which conditions. PaC is translated into operational mechanisms, namely Fair Information practices (FIPs). In practice, we have little control, especially vis-à-vis data-driven corporations. Privacy scholars blame PaC for much of the muddle in the field, claiming that PaC achieves the opposite––loss of control and privacy. This Article defends PaC, properly understood. 

I address PaC’s critique and offer a positive account. The critique wrongly reduces PaC to the principle of notice-and-choice/consent, underestimates the role of notice, and wrongly deduces the ‘ought’ (denounce PaC) from the failing ‘is’ (consent’s many failures). Critics also point to the individualistic nature of PaC. While PaC surely has such a core, it has always placed the individual in relation to others. Properly understood, PaC can serve both individuals’ privacy and societal values and is not at odds with the communitarian thesis or with the notion of networked privacy. 

On the positive side, the Article argues that PaC is broader than consent and is not exhausted after the initial collection of personal data. Rather, we should conceptualize privacy as continuous control. To facilitate continuous control, the law creates data meeting points between people and their data, which enable data subjects to exercise their control, beyond the first encounter between the parties. Instead of denouncing PaC, we should search for ways to amend consent and strengthen control. 

The Article organizes privacy justifications as a series of concentric circles, moving from the individual to social interactions, the community, and the state. Each circle subsumes the previous ones. The high-level justifications are translated into a midlevel instruction: PaC. Thus, PaC is a common denominator of various privacy justifications. Following Daniel Solove, I suggest that PaC is privacy’s Wittgensteinian family name. Finally, the Article explains the relationship between PaC and Privacy-as-Access, argues that PaC can provide the missing normative element in Nissenbaum’s framework of contextual integrity, and that PaC does not mean property.

Software

'On Software Bugs and Legal Bugs: Product Liability in the Age of Code' (Indiana Legal Studies Research Paper No. 535) by Asaf Lubin comments 

Despite software’s ubiquity in modern life, its classification within product liability law remains unsettled. Is software a product, a service, a good, a component, a medium, a force, or something else altogether? Under the Restatement (Third) of Torts a product is defined as a “tangible personal property distributed commercially for use or consumption.” But has this definition been embraced by states? And how has it been applied in the Courts, since its adoption some 26 years ago? 

Through a 50-state survey and the canvassing of all relevant case law, the paper reveals widespread doctrinal inconsistencies within the common law. Some states adopt restrictive definitions of “product” tied to tangibility, while others take broader approaches or leave the term undefined, creating uncertainty in software-related claims. Judicial decisions further complicate this landscape, with courts diverging on whether software qualifies as a product, particularly in cases involving embedded or cloud-based solutions like software-as-a-service. 

The paper contrasts U.S. law with the 2024 European Union Product Liability Directive, which redefines software and artificial intelligence as products, establishing a forward-looking framework that imposes strict liability for software defects. This stark divergence exposes the U.S.’s failure to modernize its legal frameworks, forcing courts to rely on outdated definitions that inadequately address the risks posed by emerging technologies. By lagging behind Europe, the U.S. cedes its historic role as a pioneer in tort law, creating a regulatory vacuum that prioritizes developer interests over consumer safety and undermines global trust in its ability to regulate the digital economy effectively

Expertise

'On Legal Expertise' by Felipe Jiménez in (2024) The American Journal of Jurisprudence comments 

Legal experts can reliably ascertain which legal norms are valid, and therefore which legal propositions are true. Legal experts are in this position because they have a grasp of the deep cognitive structure of law: the habits, commitments, and values that characterize the practice of legal argument in a specific jurisdiction. Legal expertise, thus understood, determines the content of the law, which is therefore not reducible to an aggregation of authoritative legal texts. Because social facts about legal experts’ values and commitments can determine the content of the law, references to moral considerations and principles of justice as valid legal reasons, in legal argument, are not a problem for (at least some forms of) legal positivism. Legal expertise thus shows that non-positivists might be right about (as they would put it) the irreducibility of legal content to communicative content without being right about the claims that moral facts determine the content of the law or that the validity of legal norms turns on moral considerations. Legal expertise also plays an important causal role in legal decision-making and is not, as some of the literature on judicial decision-making might suggest, epiphenomenal. From a moral perspective, while the existence of a class of legal experts is not necessarily valuable, it does have certain benefits, particularly in conditions of moral disagreement. 

People routinely make claims about the legal status of behaviors. Some of the propositions expressed by these claims are true; others are false; and some are just plausible. One of the questions that legal philosophers focus on is, precisely, what types of facts make it the case that a legal proposition is true or at least plausible. This is the question about what some legal philosophers call “the grounds of law”—about the facts that provide the explanation for the validity of legal norms, and therefore for the truth (or plausibility) of true (or plausible) legal propositions.  Some theorists believe that one can explain why legal norms exist or are valid simply by alluding to social facts alone, while others think the full explanation must allude to moral propositions. This is the basic divide between legal positivism and its critics. 

Despite this divide, legal theorists generally agree that the actions and practices of individuals and groups, and particularly those of legal officials, play an important role in explaining the validity of legal norms. Hart, for instance, answered the question about the grounds of law by reference to what he called the “rule of recognition.” The rule of recognition summarizes the complex practice of legal officials that determines what normative standards are legally binding in each legal system (or, at least, what facts count as valid sources for such standards) and allows agents to identify those standards (or sources), by setting out a master test of legal validity. But the fact that what makes legal norms valid and legal propositions true depends—at least partly—on the practices of people acting within legal institutions is widely recognized. Dworkin, for instance, insisted on the legal and theoretical significance of the historical record of the enactments and decisions of legal officials. 

The number and complexity of these practices, enactments and decisions in contemporary legal systems raises the question of who has the ability to ascertain, on their basis, which legal norms are valid, and which legal propositions are true or plausible. One intuitive answer alludes to legal experts. This paper offers an account of the nature and value of legal expertise. 

As far as I am aware, there is no body of legal philosophical work attempting to elucidate the notion of legal expertise or to systematically discuss its nature, impact, and value. In this aspect, the paper’s indirect aim is to persuade readers that there is something important, and worth exploring, in this notion—not directly, but by offering an account that hopefully illuminates its significance for important jurisprudential debates. On this account, legal expertise is a grasp of the deep cognitive structure of law: the habits, commitments, and values that characterize the practice of legal argument in a specific jurisdiction. Understood in this way, legal expertise is one of the set of social phenomena that explain the content of the law, which is therefore not reducible to an aggregation of authoritative legal texts. 

There are multiple issues in legal theory that might be impacted by an adequate understanding of legal expertise. Five implications are particularly salient in this paper. First, the account has an impact on the debate about the grounds of law—specifically, it shows how legal experts’ activities are amongst the facts that explain the content of valid law. In this regard, the account expands the agents’ whose practices count for grounding valid legal norms: not just lawyers and judges acting as legal officials, but also other legal experts without any formal authority, but whose activities contribute to determine the content of the law.  In the context of this debate, legal expertise also shows why references to moral considerations, principles of justice, and even to anti-positivist claims in legal argument need not be particularly problematic for a positivist view about the nature of law.  Second, the account shows that, in contemporary legal systems, some minimal degree of juristocracy is not a pathology but a central aspect of legal governance. An important part of law is, in fact, made by lawyers. Third, the contribution of legal experts’ cultural practices and shared understandings to the content of the law provides additional fodder against, or at least complicates, some aspects of what Greenberg calls the “standard picture,” according to which legal content is reducible to, and directly explained by, the communicative content of legal texts.  All of these implications are the subject of Part I. The fourth implication, addressed by Part II, is the following: legal expertise complicates familiar pictures about the distinction between legal and extra-legal considerations—particularly in the empirical study of judicial decision-making. Finally, the fifth salient implication of the argument—the focus of Part III—is that legal expertise is morally valuable, even if it comes with certain costs. Highlighting the value of legal expertise is relevant in light of recent arguments that deemphasize its significance. 

Here is a brief roadmap. Part I explicates the notion of legal expertise, identifies its content, and elucidates its significance for jurisprudential debates. Part II discusses the relevance of legal expertise as an empirical matter—and argues against the idea that legal expertise plays no causal role in judicial decision-making and (more broadly) legal reasoning. Part III explores questions about the value of legal expertise. While whether legal expertise is all things considered valuable is a contextual question, I will suggest two benefits—what I call practical learning and the channeling of disagreement—that must be part of the evaluation in specific cases.

Conspiracism

'Conspiracy! Or, when bad things happen to good litigants...' by Kate Leader in (2024) 44(3) Legal Studies 498-518 comments 

 This paper considers the relationship between litigants in person (LiPs) and conspiracy theories and seeks to answer two questions: how, and why, do some LiPs become conspiracy theorists? The majority of LiPs, of course, do not become conspiracy theorists. There is also no evidence that LiPs are more likely than anyone else in legal proceedings to be conspiracy theorists, only, perhaps, that it is more obvious when they are. But there continue to be individuals who use conspiracy theories to explain the difficulties or failures they experience throughout legal proceedings. And while it is widely held that some LiPs hold eccentric beliefs about the law, there has been little attempt to understand how and why LiPs may come to acquire or articulate these beliefs. This is presumably because it has not been considered important to interrogate the views of people already often assumed to be ‘difficult’. This paper contends, however, that trying to understand how and why these beliefs are acquired matters very much. This is because conspiracy theories can give us insight into how negative experiences of litigation can result in a loss of faith or trust in legal institutions. 

I advance this argument through three key claims: first, that legal professionals and legal scholars tend to pathologise both those who believe in conspiracy theories and LiPs in an unhelpful way, by focusing on their individual competence or psychology. Whilst there is no direct research on LiPs and conspiracy theories, work that has touched on litigants and repeat litigation shares a traditional conception of LiPs as difficult, litigious or paranoid individuals. Consequently, the presumption in such cases has been that these are pathological individuals who happen to be involved in legal proceedings; their experience as litigants is less, or not, relevant. I argue instead that this is symptomatic of how laypersons are treated in the civil justice system and demonstrates how we can fail to take seriously LiP claims about their experiences. 

Secondly, I argue that examining how and when belief in conspiracy theories arises can provide insight into the legal consciousness of LiPs and how this is affected by repeated, negative experiences of litigation. Far from confirming litigant paranoia, this paper contends that these behaviours and beliefs are affected, reproduced and at times created by contact with legal proceedings. So, while the malign authority that conspiracy theorists may invoke to explain their experiences is fictive, what leads to these beliefs – a perception of deliberately unfair treatment – is rooted in genuine and systemic experiences of exclusion, and these exclusions happen to all LiPs to differing extents in the civil justice system. 

Finally, this paper argues that too often we make a distinction between ‘worthy’ and ‘unworthy’ LiPs, whereby we bracket off those we perceive as problematic actors, such as those who express conspiracy theories, from those individuals we implicitly frame as non-problematic, and therefore having a right to pursue or defend actions. I suggest instead that such a distinction is unhelpful and unsustainable. Belief in conspiracy theories is best understood as existing along a continuum rather than being a binary. Doing this allows us to move away from thinking in terms of ‘us and them’, and instead consider that how individuals perceive their treatment by legal actors and the courts may play a constitutive role in their faith in these institutions. What tips LiPs into believing in conspiracy theories? And what can this tell us about how we tend to characterise LiPs? Ultimately, I argue that the development of belief in conspiracy theories on the part of some LiPs can best be understood as at least partly the result of a crisis of faith that arises when idealised litigant perceptions of law give way to the mundane and distressing reality of legal proceedings. As I conclude, if some LiPs are ‘crazy’, we ought to consider the possibility that going to law has made them this way.

Cheating

'Responsible but powerless: staff qualitative perspectives on cheating in higher education' by Rowena Harper and Felicity Prentice in (2024) 20 International Journal for Educational Integrity comments 

Since its identification, contract cheating has evolved into a significant interdisciplinary field in higher education, encompassing both research and practice. This field informs institutional strategies, practices to mitigate contract cheating, professional development, and student education (Morris 2020). With many governments enacting legislation to combat commercial cheating industries, and quality assurance agencies establishing legislative standards for higher education providers, contract cheating has become a focal concern in the educational landscape. 

In Australia, the location for this study, a series of media scandals in 2015 sparked federal government concerns that students were increasingly using commercial contract cheating services to complete their assignments, and that universities were failing to detect it. Implications in some of the reporting that international students were amongst the users contributed to those concerns, as higher education was Australia’s third largest export industry at the time (behind iron and coal), with international students comprising over 25% of the higher education population. The prospect of reputational or economic damage to universities, or the Australian higher education sector more broadly, by a narrative that suggested compromised integrity led to widespread investment in understanding and addressing the issue of contract cheating at national and local levels. Demands on academics have expanded in parallel, with their roles given new administrative, research and pedagogical dimensions requiring new and evolving skills and resources. Their work requires a growing knowledge base that includes contemporary student behaviours that can undermine educational integrity, the individual, attitudinal and contextual factors that can motivate these behaviours, and security threats and cheating opportunities that may exist in the teaching and learning environment. This knowledge must then be applied in designing an engaging and supportive learning environment that develops students’ academic integrity and academic practice (Gottardello and Karabag 2022), acknowledges and scaffolds students’ diverse academic and linguistic abilities (Bretag et al. 2019; Slade et al. 2019), and utilises assessment practices that are authentic and meaningful, and as secure as practicable (Ellis et al. 2018; Dawson 2021). For the most part these teaching and learning activities align with teachers’ conceptions of their professional identity (Lynch et al. 2021). Less well understood is how teaching staff perceive their role in detecting and managing contract cheating and other forms of academic misconduct, particularly in an environment where academic misconduct responsibilities are increasingly distributed across different institutional roles (Ahuna, Frankovitch and Murphy 2023; Vogt and Eaton 2022). These roles may include faculty-based and/or centralised teams of academic integrity specialists who provide policy leadership, staff training, student education, or have responsibility for aspects of academic misconduct investigation and management. Roles may also include more senior academics to whom teachers are required to delegate certain forms of academic misconduct. 

Research into the institutional management of academic misconduct has focussed on the development of policies and procedures to prevent, detect and respond to incidents (Birks et al. 2020; Bretag and Mahmud 2014; Stoesz et al. 2019). These policies and procedures typically position teaching staff as having a policing role that feels inconsistent with and even anathema to their conceptualisations of their role and identity as facilitators of learning. For instance, in a comparative study across six countries, Gottardello and Karabag (2022) found that academics are often required to adopt the role of ‘intimidator’ to ensure students understand the consequences of academic misconduct. With the rise of contract cheating, the act of evaluating assessment tasks has increasingly become infused with a level of suspicion, as evidence suggests that the detection rate of contract cheating improves when academic staff maintain awareness of its potential occurrence (Dawson and Sutherland-Smith 2018; 2019). The gathering of evidence to identify and substantiate a case can require quasi-forensic processes such as linguistic and stylometric analyses (Ison 2020; Mellar et al. 2018), nuanced interpretation of text-matching software reports (Bretag and Mahmud 2009; Lancaster and Clarke 2014), scrutiny of document metadata (Johnson and Davies 2020), and surveillance of Learning Management System traffic to leverage information on user IP addresses (Dawson 2021). All this occurs against a backdrop of challenging organisational conditions that include dwindling resources, increasing workloads and increasing casualisation (Amigud and Pell 2021; Birks et al. 2020; Harper et al. 2019; De Maio et al. 2020). 

In addition to their roles in teaching, learning and detection, teaching staff have been described by some as ‘morally responsible’ (Sattler et al. 2017, 1128) for the ongoing problem of student cheating, with others suggesting that a failure to prevent and detect academic misconduct actively is indicative of ‘staff laziness’ and ‘lack of creativity’ (Walker and White 2014, 679). Some of the language used in the literature frames the problem as a combative one and positions teaching staff as the ‘guardians of integrity’ (Amigud and Pell 2022, 312) who are on the front line (Burrus et al. 2015, p. 100; Singh and Bennington 2012, 115), ‘in the trenches’ (Atkinson et al. 2016, 197), in an ‘arms race’ (Birks et al. 2020, p. 13) and ‘waging a losing battle’ (Asefa and Coalter 2007, p. 43) against academic misconduct. The combatants portrayed in this war seem to be the teaching staff and students, staring at each other across a moral divide. Given the critical task of teaching staff to address contract cheating, the ways in which they make sense of and navigate their competing roles and responsibilities needs to be better understood. The project reported in this paper was part of a nationally funded research project entitled Contract Cheating and Assessment Design: Exploring the Connection, which conducted parallel staff and student surveys at 12 Australian higher education institutions, including 8 universities, between October and December 2016. The surveys addressed four research questions:

1. How prevalent is contract cheating in Australian universities? 2. Is there a relationship between cheating behaviours and sharing behaviours? 3. What are university staff experiences with and attitudes towards contract cheating and other forms of outsourcing? 4. What are the individual, contextual and institutional factors that are correlated with contract cheating and other forms of outsourcing?

This paper reports only on the data gathered from the 8 universities. Notably, the data were collected at a time before the COVID-19 pandemic prompted an emergency pivot in teaching and assessment, and most significantly prior to the emergence of Large Language Model Generative Artificial Intelligence (GenAI). However, we assert that the fundamental challenges of ‘cheating’ remain the same, and that the organisational conditions and staff experiences illustrated here are only likely to have intensified as a result of the disruptions experienced since 2016.