Big Data, Privacy and Antitrust

'The Impulse to Condemn the Strange: Assessing Big Data in Antitrust' by Alexander Krzepicki, Joshua D. Wright and John M. Yun in (2020) 2(2) CPI Antitrust Chronicle 16 comments

 An emerging refrain in antitrust dialog is that the accumulation and use of big data is a unique and particularly troublesome entry barrier, worthy of antitrust scrutiny. Yet, it seems that both the concept of big data and entry barriers continue to be used in a highly casual and superficial manner. In this article, we argue that big data should properly be considered a two-stage process. In stage one, a firm collects the data. In stage two, a firm transforms the data into some benefit that ultimately increases profitability. We also discuss whether big data should be considered an entry barrier, which, in a broad and abstract sense, measures the relative difficulty of obtaining necessary inputs to production.

'Concealed Data Practices and Competition Law: Why Privacy Matters' (UNSW Law Research Paper No. 19-53, 2019) by Katharine Kemp comments

This paper argues that the degradation of consumer data privacy in the digital environment causes objective detriment to consumers and undermines the competitive process, and should therefore be of critical concern to competition law. Consumers are frequently unaware of the extent to which their personal data is collected, the purposes for which it is used, and the extent to which it is disclosed to others, particularly in digital markets. Researchers and regulators have observed that this is not simply a matter of consumer apathy, but that firms often understate and obscure their actual data practices, preventing consumers from making informed choices. This paper defines, and provides examples of, a set of “concealed data practices”. These concealed data practices create objective costs and detriments for consumers, making them more susceptible to criminal activity, discrimination, exclusion, manipulation and humiliation. This paper argues that these practices are not only problematic in terms of consumer protection and privacy regulation. Concealed data practices should also be of concern to competition policy due to their role in chilling competition on privacy; preserving substantial market power by means other than superior efficiency; and deepening information asymmetries and imbalances in bargaining power. The paper concludes by outlining four ways in which these factors should be taken into account by competition authorities.

Robophobia

'Robophobia' by Andrew Keane Woods comments

 Robots — machines, algorithms, artificial intelligence — play an increasingly important role in society, often supplementing or even replacing human judgment. Scholars have rightly become concerned with the fairness, accuracy, and humanity of these systems. Indeed, anxiety about machine bias is at a fever pitch. While these concerns are important, they nearly all run in one direction: we worry about robot bias against humans; we rarely worry about human bias against robots. 

This is a mistake. Not because robots deserve, in some deontological sense, to be treated fairly — although that may be true — but because human bias against non-human deciders is bad for humans. For example, it would be a mistake to reject self-driving cars merely because they cause a single fatal accident. Yet this is what we do. We tolerate enormous risk from humans, but almost none from robots. A substantial literature — almost entirely ignored by legal scholars concerned with algorithmic bias — suggests that we routinely prefer worse-performing humans over better-performing robots. We do this on our roads, in our courthouses, in our military, and in our hospitals. Our bias against robots is costly, and it will only get more so as robots become more capable. 

This paper catalogs the many different forms of anti-robot bias and suggests some reforms to curtail the harmful effects of that bias. The paper’s descriptive contribution is to develop a taxonomy of robophobia. Its normative contribution is to offer some reasons to be less biased against robots. The stakes could hardly be higher. We are entering an age when one of the most important policy questions will be how and where to deploy machine decision-makers. In doing so, we must be mindful of our own biases just as we must be aware of algorithmic biases.

Telecommunications Legislation Amendment (International Production Orders) Bill 2020

The Parliamentary Joint Committee on Intelligence and Security (PJCIS) has commenced a review into the effectiveness of the Telecommunications Legislation Amendment (International Production Orders) Bill 2020 (Cth), drafted to amend the Telecommunications (Interception and Access) Act 1979 (Cth).

The Bill seeks to

•  provide a framework for Australian agencies to obtain independently-authorised international production orders for interception, stored communications and telecommunications data directly to designated communications providers in foreign countries with which Australia has a designated international agreement 
• amend the regulatory framework to allow Australian communications providers to intercept and disclose electronic information in response to an incoming order or request from a foreign country with which Australia has an agreement 
•  make amendments contingent on the commencement of the proposed Federal Circuit and Family Court of Australia Act 2020; and 
• remove the ability for nominated Administrative Appeals Tribunal members to issue certain warrants. 

The effect is to provide for the legislative framework for Australia to give effect to future bilateral and multilateral agreements for cross-border access to electronic information and communications data, such as that being negotiated with the United States for the purposes of the US Clarifying Lawful Overseas Use of Data Act (CLOUD Act).

Forfeiture

The South Australian Law Reform Institute's report on forfeiture - foreshadowed last year - has now been released.

Riddles, Laws and Enigmas: The Common Law Forfeiture Rule notes

The venerable common law forfeiture rule prevents an unlawful killer from receiving any profit or benefit as a result of their crime. The rule stems from a longstanding and powerful maxim of public policy — that no person should benefit from his or her wrongdoing. The premise of the rule remains sound, but its scope and operation are uncertain and problematic in various respects. The famed words of Winston Churchill have recently been used to characterise the current extent and application of the common law forfeiture rule in unlawful homicide as ‘a riddle wrapped in a mystery inside an enigma’. 

The rule dates back to Jewish and Roman law and various medieval English doctrines that were only formally abolished in 1870. The rule in its current modern form was first stated in the 1892 decision of the English Court of Appeal in Cleaver v Mutual Reserve Fund Life Association where a wife (the famous Florence Maybrick who had been convicted of the murder of her husband by poison) was held ineligible to claim the proceeds of her husband’s life insurance policy. Lord Esher MR stated that ‘the rule of public policy in such a case prevents the person guilty of the death of the insured, or any person claiming through such person, from taking the money’. Fry LJ agreed:‘It appears to me that no system of jurisprudence can with reason include amongst the rights which it enforces rights directly resulting to the person asserting them from the crime of that person.’ 

In the famous Crippen case, Evans P observed:

It is clear law that no person can obtain or enforce any rights resulting to him from his own crime, neither can his representative claiming under him obtain or enforce any such rights. The human mind revolts at the very idea that any other doctrine could be possible in our system of jurisprudence.

The forfeiture rule was extended in 1914 to both murder and manslaughter in Re Hall, notably in the observations of Hamilton LJ. This principle was approved and the forfeiture rule effectively endorsed by the joint judgment of the High Court of Australia in Helton v Allen of Dixon, Evatt and McTiernan JJ (though the status and effect of this decision is still debated and unresolved). 

The forfeiture rule has apparent absolute operation in South Australia to any example of murder and manslaughter. South Australia has followed the majority approach of the NSW Court of Appeal in Troja v Troja (though note Kirby P’s dissent) and there is no discretion to modify the operation of the rule. The rule has been held to apply to other forms of unlawful homicide such as assisting suicide and the survivor of a suicide pact. 

The forfeiture rule has no statutory force, a fact that attracted some surprise in SALRI’s consultation. 

The rule nevertheless has drastic effect and provides that any person who has unlawfully caused the death of another is precluded from taking any benefit that arises as a result of the victim’s death. The rule has been held to preclude a killer from acquiring a benefit via a will, distribution on intestacy, the victim’s share in jointly owned property, other benefits such as insurance policies or even a statutory pension. The killer is also barred from making a claim under family provision laws. 

SALRI considers that the rationale of the forfeiture rule remains applicable and accords with public policy, as an unlawful killer should be generally unable to profit or benefit from his or her crime. However, the scope and operation of the rule are contentious and uncertain. In particular, the application of the forfeiture rule to unlawful killings in various situations where a lesser degree of culpability is widely recognised has shown that strict application of the rule may lead to unfair outcomes. The rule may lead to potential unfair implications in such situations as the survivor of a suicide pact, assisted suicide, infanticide, euthanasia or a ‘mercy killing’, where the offender has a major cognitive impairment (also termed ‘diminished responsibility’) or especially in a context of domestic violence where a victim of domestic violence kills an abusive spouse and is convicted of manslaughter on the basis of excessive self-defence or provocation. The strict application of the rule in such circumstances has been described as ‘unnecessarily harsh, inconsistent and ... irrational’ and ‘injudicious and incongruous’ with its public policy foundations. The automatic and inflexible application of the rule is at odds with changes in community attitudes, which is ‘reflected in the greater range of offences and sentence options today compared to when the rule was first articulated.’ The rule may produce particularly unfair consequences in the context of family or domestic violence, where the typically (though not inevitably) female victim of such violence kills an abusive spouse and is convicted of manslaughter. The problematic operation of the rule in an assisted suicide context has arisen recently in the UK (and with ‘mercy killing’ proved a major theme in SALRI’s consultation). 

SALRI also notes that, on close scrutiny, the modern forfeiture rule rests on an insecure historical foundation, notably in its present form as applying to murder and all forms of manslaughter. Cleaver was decided against the backdrop of the relatively recent abolition of the feudal doctrines relating to forfeiture in 1870. Both Cleaver and Hall are also arguably explicable by their particular facts and should not be understood as necessarily applying to murder and all forms of manslaughter. It is important to appreciate the historical context to Cleaver and Hall, the precise reasoning of all the judges (not just Fry LJ and Hamilton LJ) and the extraordinary, if not sensational, facts of both cases. 

The technical application of the modern forfeiture rule in various property, succession and inheritance situations is also unclear and problematic. The focus of past law reform references and academic commentary has tended to be on the scope of the forfeiture rule and what categories of unlawful homicide, if any, should be excluded from the operation of the rule and the role and operation of any judicial discretion to modify the operation of the rule. The practical implications and consequences of the potential operation of the forfeiture rule arise in a wide variety of succession situations such as when the victim dies with a will or intestate, holds property as a joint tenant, holds trust assets, holds life insurance, is a member of a superannuation fund or is in receipt of other benefits. The practical implications and consequences that arise from the potential operation of the rule are significant but have been often overlooked.  In particular, in various property, succession and inheritance situations the present rule may result in the ‘sins of the unlawful killer been visited upon their blameless children’. 

SALRI’s Recommendations 

Although the underlying policy or rationale of the rule remains sound, SALRI is of the view that the rule requires reform for two reasons: clarity and fairness. 

SALRI has made a total of 67 recommendations relating largely to the scope, operation and effect of the forfeiture rule. SALRI acknowledges that there is a strong public policy to prevent an unlawful killer from profiting from their crime. SALRI considers that, whilst the underlying premise of the forfeiture rule should be retained, the rule in its present form is inflexible, potentially unfair, unclear and uncertain in scope and operation and is in need of legislative reform. It is preferable for Parliament to clarify and reform the forfeiture rule, rather than relying on judicial reformulation of the rule. 

SALRI recommends that South Australia should introduce a standalone Forfeiture Act for clarity and certainty as the preferred vehicle for reform. England, New South Wales and the ACT have introduced Forfeiture Acts to modify the operation of the forfeiture rule. SALRI is of the view that the forfeiture rule should apply in South Australia to murder, all forms of manslaughter, assisting suicide, causing the death of a child or vulnerable adult by criminal neglect under s 14 of the CLCA and the offence of causing death by culpable or dangerous driving. These are all offences of unlawful homicide within the CLCA. The forfeiture rule should also apply to aiding or abetting any of these offences under s 267 of the CLCA. Any other offences of unlawful homicide such as causing death by careless driving or under work health safety laws outside the CLCA should fall outside the forfeiture rule. 

SALRI notes ‘manslaughter is a crime which varies infinitely in its seriousness’  which may range from ‘mere inadvertence’ to just short of murder. SALRI considers that it is impracticable and inappropriate to distinguish between the different categories of manslaughter as to the application of the forfeiture rule and it should apply to both voluntary manslaughter (where murder is reduced to manslaughter for whatever reason) and involuntary manslaughter (manslaughter by an unlawful and dangerous act or manslaughter by gross negligence) as well as the survivor of a suicide pact (see s 13A(3) of the CLCA). 

The question of whether the forfeiture rule should apply to the offence of causing death by culpable or dangerous driving was a prominent theme in SALRI’s consultation. There was strong support for the application of the rule in such cases, reflecting the gravity with which causing death by culpable or dangerous driving is now widely regarded. The Victorian Law Reform Commission recommended that the forfeiture rule should apply to causing death by culpable but not dangerous driving. 

SALRI considers it is illogical to treat death by culpable or dangerous driving differently from manslaughter by gross negligence. Mr Boucaut QC and others highlighted to SALRI in consultation the gravity of many examples of causing death by culpable or dangerous driving and that it is very rare for manslaughter to be charged in such circumstances. It is also relevant that culpable and dangerous driving causing death in South Australia are a single combined offence and not separate offences as elsewhere in Australia such as Victoria. 

SALRI accepts that there will be certain unlawful killings, even murder, where it will be unduly harsh to apply the forfeiture rule. SALRI has therefore recommended that any Forfeiture Act should provide a court with the discretion to modify the rule’s application where a court finds that it is in the interests of justice to do so and crucially there are ‘exceptional circumstances’. The concept of exceptional circumstances is a familiar statutory and judicial expression.  It is a phrase that is impossible to exhaustively define. The possible exercise of this discretion should arise in cases of murder, manslaughter and the other offences of unlawful homicide within the CLCA. SALRI endorses the powerful public policy reasons to prevent an unlawful killer from profiting from their crime, which is why a court would need to be satisfied that there are ‘exceptional circumstances’ to modify the rule. 

In the case of murder, the application of the forfeiture rule is said to be ‘clear and uncontroversial’. The UK, NSW and ACT Forfeiture Acts retain the rule in its absolute form for murder and allow no judicial discretion to modify the rule. However, a cogent (though far from universal) view to emerge in SALRI’s consultation was that, even for murder, there may be very rare circumstances where it would be unfair and harsh to apply the forfeiture rule. The example was given of where a spouse kills their terminally ill spouse at their request to relieve them of severe suffering. Another example given was where a victim of prolonged family violence kills their abusive spouse but no partial defence such as excessive self-defence arises and the killer is convicted of murder. 

SALRI accepts that murder has a unique gravity and culpability but there may be ‘exceptional circumstances’ in which it is appropriate for a court to modify the operation of the rule. It is likely that any such case will be very rare. 

SALRI notes the uncertainty of the present law and that, even post Troja,it is ‘unsettled’ what offences or situations fall within the forfeiture rule or not. For example, it is unclear whether manslaughter by gross negligence or causing death by culpable or dangerous driving or even aiding and abetting murder (at least after the event) fall within the rule or not. This is unsatisfactory. SALRI considers it is preferable for clarity and certainty that any Forfeiture Act clearly details those offences to which the forfeiture rule applies (namely those within the CLCA) and those which it does not (namely those outside the CLCA). However, SALRI is of the view that the forfeiture rule should not be absolute. SALRI has concluded that a court should be able to modify the application of the forfeiture rule for an offence involving unlawful killing within the CLCA in limited situations if a court is satisfied that it is in the interests of justice to do so and there are ‘exceptional circumstances’. 

The overall rationale for SALRI’s suggested reforms is to allow for consideration of individual circumstances in an appropriate instance of reduced culpability, while ensuring that the strong underlying principle that an unlawful killer should not profit or benefit from their crime is not unduly diminished or eroded. 

The common law forfeiture rule presently does not apply to an individual found not guilty of homicide by reason of mental impairment (previously termed insanity). The NSW Forfeiture Act allows a court the discretion to apply the rule where a person is found not guilty of murder on the basis of mental impairment. This proved a difficult and finely balanced issue in SALRI’s consultation. SALRI acknowledges the legitimate concerns in the community raised to it over the prevalence of drug induced psychosis in relation to serious crimes of violence and the potential successful use of the mental impairment defence by persons whose mental impairment has been caused, or at least contributed to, by the use of illicit drugs or alcohol. 

However, the solution to such concerns lies with the scope of the defence of mental impairment (as pointed out to SALRI by Professor Prue Vines) and not the role and scope of the forfeiture rule. 

The various issues relevant to the application of the forfeiture rule to persons found not guilty by reason of mental impairment were discussed by the VLRC. In particular, the VLRC recognised that the exception for those found not guilty by reason of insanity or mental impairment applies only to a very specific class of killers. These individuals must be able to establish that, at the time of the offence, they were labouring under such a defect of reason from disease of the mind as to not know the nature and quality of the act they were doing, or if they did know, then they did not know that the act was wrong. It is onerous for a person to establish that they were labouring under such a defect, and a finding of not guilty by reason of mental impairment is not treated lightly by either the DPP or the courts.  The VLRC was of the view that ‘treating a person who has been found not guilty of a crime as if they had been convicted of that crime is a trespass on their fundamental rights’.  The VLRC emphasised that extending the forfeiture rule to an individual found not guilty of murder on the basis of mental impairment undermines the ‘well-settled principles of law that a person who is not guilty by reason of mental impairment is not, and cannot, be held morally culpable for their actions’. 

SALRI does not support the NSW provision and is of the view that the existing exception to the operation of the forfeiture rule for persons found not guilty by reason of mental impairment should be retained. SALRI on this issue agrees with the reasoning of the VLRC. 

Under SALRI’s recommendations, a person who has been precluded by the forfeiture rule from obtaining a benefit, or another ‘interested person’, should be able to apply for a forfeiture modification order. SALRI’s preferred position is that modification of the forfeiture rule should be available by the exercise of judicial discretion. Whilst SALRI accepts that the introduction of a judicial discretion to modify the rule will result in uncertainty in some cases, it will nonetheless mean that justice can be achieved in all cases, by providing courts the power and crucial flexibility to deal with each case on its individual merits rather than by the application of a blanket or rigid rule. In order to address the uncertainty that may arise in the exercise of judicial discretion in some cases, SALRI recommends that any proposed Forfeiture Act should contain a list of statutory considerations for a court to have regard to and the primary factor should be the culpability of the unlawful killer.  SALRI’s view is that, whilst the codified approach under the New Zealand Forfeiture Act, which excludes some categories or situations of unlawful killing from the operation of the forfeiture rule, might reduce the number of instances in which the application of the forfeiture rule is unjust, it is too inflexible to do so in all cases. For example, for victims of family violence who kill, a codified approach may cause injustice, either by continuing to apply the rule rigidly where modification is justified, or by excluding all such killings, including cases where it is appropriate that the rule apply. The judicial discretionary approach is a preferable model to flexibly respond to cases of family violence victims who kill an abusive domestic partner in response to ongoing family violence. This approach most effectively allows a court to consider the context and circumstances of the conduct in each case and recognise where the level of culpability of the killer is reduced. Further, SALRI is of the view that it would impractical, if not impossible, to seek to formulate codified legislation in relation to the forfeiture rule that could cover the infinite variety of cases that will arise. 

There was considerable discussion in SALRI’s consultation about the need for urgent orders to be made in cases where the killer controls the deceased’s estate and could dissipate it before a preserving order or injunction is granted. This was seen as a real practical omission under the current law. SALRI has made a number of recommendations aimed at protecting the assets of the deceased from dissipation until proceedings have been finalised. These recommendations include giving a court the power to make whatever interim or incidental orders are necessary from time to time to preserve the deceased’s property, expressly providing the Attorney-General with standing to apply for preserving orders in a suitable case, the formulation of a protocol for the disclosure of information to the Attorney-General by other government agencies with a relevant interest or role in the case and the introduction of a statutory caveat which can be served by any person claiming an interest in property which would prevent the accused person being able to seize the assets of the deceased person. 

In terms of the effects of the rule, SALRI has recommended that the proposed Forfeiture Act codify the effect of the forfeiture rule on the killer and on the succession rights of third parties. SALRI considers that this is required to provide greater clarity and certainty about the effects of the rule on the killer and other parties, as the current law in respect to the effects of the forfeiture rule lacks clarity. Some of SALRI’s main recommendations regarding the effect of the forfeiture rule include clarifying that, in cases where there are reasonable grounds to suspect a person has unlawfully killed the deceased, they shall be disqualified from acting as a personal representative of that deceased person’s estate. 

SALRI has also made recommendations as to the process that the personal representative must follow before they distribute the estate of the deceased person in accordance with the forfeiture rule. It is further recommended that where a deceased victim dies with a will or intestate and a share of their estate is to pass to a person who is precluded by the forfeiture rule from acquiring it, the killer is deemed to have predeceased the victim. This reform was considered particularly important, as it means that the killer’s actions have no impact on the benefits under a will or on intestacy passing to the descendants of the killer. As a result, this reform prevents the unsatisfactory situation of the sins of the unlawful killer being visited upon their blameless children. 

SALRI has also made specific recommendations about the forfeiture rule in the context of the Family Provision Act 1972 (SA), property interests including property held as joint tenants between the victim and the killer and third parties, trust assets, life insurance proceeds, superannuation death benefits and social security benefits and other public benefits. SALRI is of the view that its recommendations, including placing the forfeiture rule on a clear statutory basis, will clarify and improve the role and operation of the present law by retaining the underlying rationale of the rule that an unlawful killer should not profit from their crime, but providing a limited degree of flexibility to modify its effect in an appropriate case where there are ‘exceptional circumstances’ and further resolve at least some of the practical issues and implications that presently arise. In short, it will help unravel ‘the riddle wrapped in a mystery inside an enigma’.

Heirs and Land Acquisition

"Heir Hunting"by David Horton and Reid K Weisbord in (2021) 169 University of Pennsylvania Law Review comments

For more than 150 years, companies called “heir hunters” have operated in the shadows of the court system. Heir hunters monitor probate filings to identify intestate decedents who have missing or unknown relatives. They then perform genealogical research, locate the decedent’s kin, and offer to inform them about their inheritance rights in exchange for a share of the property. States are sharply divided about whether to enforce contracts between heir hunters and heirs. This discord stems from the fact that we know virtually nothing about heir hunting. 

This Article illuminates this mysterious corner of succession law by reporting the results of the first empirical study of heir hunting. Its centerpiece is a hand-collected dataset of 1,349 recent probate matters from San Francisco County, California. Because a unique disclosure norm in California effectively requires heir hunters to file their contracts in the record, the Article is able to analyze a rainbow of issues that would normally be private, such as the scope of the industry, how heir hunters operate, and the context, content, and timing of their agreements.

The Article reaches three main conclusions. First, heir hunting is a booming business. Indeed, the Article unearths 219 agreements between heir hunters and heirs from twenty-seven American states and eleven foreign countries. Second, heir hunting can be socially valuable. Heir hunters sometimes locate long-lost relatives after everyone else has failed. Third, heir hunting is also problematic. For one, the Article’s multivariate regression analysis reveals that cases with heir hunters are especially likely to devolve into litigation. In addition, heir hunters usually pay for the heir’s attorney, thus creating a stark conflict of interest. Finally, heir hunters charge exorbitant fees and routinely contact heirs before the administrator has even tried to locate them. Using these insights, the Article critiques existing approaches to heir hunting and suggests reforms that would enable the legal system to harness the practice’s benefits while limiting its costs.

In Australia the Department of Finance is undertaking a review of the Lands Acquisition Act 1989 (Cth) for recommendations regarding legislative, policy and administrative reforms to the LAA. 

 Changes to the legislation will not be retrospective. Any acquisition processes that commence before legislative changes occur will continue to fall under the existing LAA provisions to ‘provide certainty for claimants, acquiring authorities and other persons involved in an acquisition process’. The Review will be ‘guided by the principles of equity and fairness; timeliness; transparency; and value for money’. 

 The discussion paper for the Review states 

 It is now 30 years since the commencement of the Lands Acquisition Act 1989 (the LAA), the key legislation used by the Commonwealth to acquire and dispose of interests in land. Over time, complex land acquisition processes involving compensation payments to land holders have become more difficult to finalise. The Government has therefore asked for a review of the LAA to look at how it could be improved to best support the Commonwealth and other interest holders into the future. 

Terms of Reference for the Review are

The Government is undertaking a review of the LAA to ensure it: 

a. reflects community expectations around public sector responsiveness and timeliness; 

b. minimises delay and uncertainty in finalising compensation claims with affected parties; and 

c. minimises administrative costs and provides value for money. 

The Review will consider the broad scope of operations and functions under the LAA, including administrative requirements. In doing so, it will consider matters such as, but not limited to: how the LAA can best support acquisition and disposal of land by the Commonwealth for public purposes in a way that is fair and efficient to all parties; whether the LAA legislation and associated guidance can be simplified to make it easier for all parties to understand and apply; and how best to balance the main objectives of the Act with modern public administrative and legal principles. 

The purpose of the LAA is to provide a mechanism for the Commonwealth to acquire land for essential public infrastructure (e.g. roads, Defence facilities and airports), while respecting the rights of interest holders, such as those whose land is being acquired. The LAA sits within the context of Section 51(xxxi) of the Australian Constitution, that states the Commonwealth can make laws with respect to ‘the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has the power to make laws’. 

The LAA provides the Commonwealth with a legislative framework for its property transactions, including to ensure acquisitions occur on just terms. 

The Act also regulates other Commonwealth dealings in land interests including:

a. disposals of land 

b. temporary entry onto land 

c. land situated overseas (e.g. Australian embassies), and 

d. mining on Commonwealth land.

Unlike acquisitions, these are not governed by section 51(xxxi) of the Constitution. 

The Public Governance, Performance and Accountability Act 2013 (Cth) includes rules governing how Commonwealth officials are to use public resources, including those relevant to the acquisition or management of land as a public resource. 

Unless exemptions apply, all Commonwealth agencies that acquire land are subject to the LAA. These ‘acquiring authorities’ include non-corporate and corporate Commonwealth entities. Some corporate Commonwealth entities are alternatively able to deal with land (by agreement, but not by compulsory acquisition) through their own enabling legislation, which gives the entity the ability to acquire and dispose of property including land, similar to that of a natural person. 

The LAA falls under the responsibilities of the Minister for Finance and the Department of Finance (Finance). The Minister has delegated some powers under the LAA to officials within Finance and other acquiring authorities.

Specific questions are 

Q 1. What are your views on the range of land interests and entities covered by the LAA? 

Q 2. How could acquisitions and their administration be reformed to encourage acquisition by agreement and improve the experience for interest holders? 

Q 3. What changes could be made to reduce the time to resolve compensation claims? You might like to consider which party should start the process, whether timeframes should apply and the use of face to face meetings and mediation. 

Q 4. What changes could be made to the types of compensation to ensure expenditure of public money represents value for money? You might like to consider time limits and caps in your response. 

Q 5. How could the LAA review processes and reconsideration avenues be changed to encourage early resolution? 

Q 6. What changes could be made to the CPDP to support better land use management and/or administrative practices? You might like to consider off-market sales and land swaps in your response. 

Q 7. Is the concept of ‘public purpose’ sufficiently clear? If not, how could it be improved? 

Q 8. Are any changes required to the LAA provisions dealing with acquisitions and disposals of overseas land? 

Q 9. Are any changes to the LAA and/or CPDP needed in the context of negotiating ILUAs? 

Q 10. Are the current arrangements for mining on Commonwealth land sufficient and appropriate? Is there a need for national uniformity? 

Q 11. How can the ‘disposal’ power under the LAA be flexible enough to manage future policy priorities? 

Q 12. Should amendments be made to the LAA to support future joint projects between the Commonwealth and states and territories?

Gigs

'Sceptics or supporters? Consumers’ views of work in the gig economy' by Joshua Healy, Andreas Pekarek and Ariadne Vrome in (2020) 35(1) New Technology, Work and Employment comments

Labour-management practices and workers’ experiences in the gig economy are topics of major interest for researchers, regulators and the general public. Platform companies project a vision of gig workers as autonomous freelancers, but pervasive features of their own labour practices, along with workers’ traits, create new vulnerabilities and risks. Efforts to improve gig workers’ conditions to date have made inroads without achieving a general shift in platforms’ practices or gig workers’ conditions. In this paper, we explore how another, less-recognised stakeholder group—consumers—shapes the conditions of gig work. Drawing on Australian public opinion data, we study consumers’ views of the gig economy and ask whether these will help or hinder pro-worker campaigns. While consumers are sympathetic to gig workers’ financial plight, they also see benefits in the work’s flexibility and opportunities for jobseekers. We explain how our findings can inform advocacy campaigns and further gig economy research.

The authors state

The proliferation of new and increasingly diverse digital labour platforms is one of the major economic developments of recent years. By enabling consumers to find and transact with many producers at lower cost, platforms have given rise to an ‘on-demand’ or ‘gig’ economy that is increasingly important in both physical (e.g. food delivery) and online (e.g. data entry) markets (De Stefano, 2016; Howcroft and Bergvall-Kåreborn, 2019; Kuhn and Galloway, 2019; Wood et al., 2019). The leading platforms—Uber, Deliveroo, and many others—are global brands that are quickly becoming corporate titans (Conger and de la Merced, 2019). As labour market intermediaries, platforms account for 1–3 per cent of all paid work in advanced economies and this share is ‘growing fast’ (Schwellnus et al., 2019: 8). 

Various economic benefits have been ascribed to this burgeoning platform economy, mainly due to improved consumer choice and convenience (Minifie and Wiltshire, 2016; Pasquale, 2016). Assessments of platforms’ impact on working conditions, however, are often more critical. In contrast to a prevailing company rhetoric of choice and entrepreneurship (Roberts and Zietsma, 2018; Ravenelle, 2019), gig work is seen as insecure and exploitative by many labour and organisational scholars (Stanford, 2017; Van Doorn, 2017; Aroles et al., 2019). Flexibility for workers is constrained, in practice, by performance surveillance and intense competition for the best-paid tasks (Scheiber, 2017; Lehdonvirta, 2018; Goods et al., 2019). 

Debates about how to protect and advance working conditions in the gig economy are fractious. Worker-led campaigns seek improvements via an array of new and old organising techniques, but platforms vigorously resist attempts to redefine their responsibilities as employers. Some platforms have modified their labour practices at the edges in the face of pressure from workers and/or regulators—such as by recommending (but not requiring) minimum wage compliance, or facilitating workers’ access to private insurance—but these concessions are overshadowed by a larger ‘reclassification risk’ to platforms’ business model (AlphaBeta, 2019). That is, the possibility that gig workers currently treated as contractors will be deemed by regulators to be de facto employees, with correspondingly greater entitlements (Cherry and Aloisi, 2017). 

Legal determinations about this vexing classification issue, to date, are mixed; no universal or consistent precedent has emerged. The future of the gig economy thus remains unpredictable, with labour advocates and platforms often at odds over its benefits and drawbacks. Meanwhile, many governments are moving cautiously in deciding how, or if, to impose new regulations on platforms. There are marked cross-national differences, for instance, in how governments have responded to Uber’s market entry (Thelen, 2018). 

Along with workers and governments, consumers are another critical stakeholder group in the gig economy, although their influence has until recently attracted less academic interest. Thelen and colleagues have argued that platform companies seek to acquire a new form of power, by cultivating the loyalty and, occasionally, more active support, of consumers for whom platform services constitute ‘part of the infrastructure of their lives’ (Culpepper and Thelen, 2019: 8). If successfully nurtured, these bonds of consumer dependency give platforms significant leverage in political and regulatory processes, allowing them to portray critics as hostile to ‘consumer choice’ (Rahman and Thelen, 2019). However, because people have multiple identities that are cued by different issues—not only as consumers but also as citizens, taxpayers, co-workers and so on—public support for platforms is neither inevitable nor unconditional (Thelen, 2018). 

To understand whether consumers will become, and remain, platforms’ sceptics or supporters, we need more finely grained evidence about their views. We contribute to this endeavour, by exploring consumers’ views about one of the most contested issues in platform capitalism: gig work. We argue that consumers’ support for change or, conversely, their tolerance for the status quo is an important and understudied factor influencing how gig work develops. Prior research in different contexts suggests that, while consumers may support labour-rights campaigns for ethical reasons, they can also be mobilised against such actions, if these are seen to unfairly limit choice and convenience. The gig economy is arguably the most important arena in which these tensions over consumer choice, working conditions and business ethics are playing out. 

In this paper, we present detailed empirical evidence about consumers’ engagement with and views about work in a key section of the gig economy, drawing on a unique Australian public opinion data set. We focus on locally delivered gig work, as distinct from its remote and online varieties (Wood et al., 2019). Our approach is exploratory, rather than hypothesis-driven, given the novelty of our study aims. We seek to answer one central research question: Are consumers’ views likely to help or hinder efforts to advance working conditions in the gig economy? 

As a foundation for our analysis, we draw from and link two disparate strands of research, which are canvassed in the next two sections: one on platforms’ labour practices and gig work; the other on consumers and ‘ethical consumption’.

Biometrics

There has been an outbreak of common sense in Scotland, alas not in Australia where governments and solutions providers are still snorting facial biometric pixie dust. The Scottish legislature's Justice Sub-Committee on Policing  comments

The introduction of live facial recognition to policing in the UK is a relatively new phenomenon.

Police Scotland has an ambition, outlined in its 10-year strategy, to introduce its use by 2026. Its assessment of the likely equalities and human rights impact as “likely to be positive in nature” is in stark contrast to the evidence received by the Justice Sub-Committee on Policing.

The live facial recognition software which is currently available to the police service is known to discriminate against females, and those from black, Asian and ethnic minority communities.

For this reason, the Sub-Committee believes that there would be no justifiable basis for Police Scotland to invest in this technology.

We therefore welcome confirmation from Police Scotland that they have no intention to introduce it at this time.

Prior to any decision to introduce live facial recognition technology to policing in Scotland, it is essential that a robust and transparent assessment of its necessity and accuracy is undertaken, and that the potential impacts on people and communities are understood.

The use of live facial recognition technology would be a radical departure from Police Scotland’s fundamental principle of policing by consent.

Police Scotland need to demonstrate that its use of this technology is provided for in legislation and meets human rights and data protection requirements.

This short inquiry has highlighted the pressing need for a much wider debate on the use of live facial recognition technology by the police service, as well as more widely across the public sector, and by private companies. Politicians could play a key role in determining whether there is public consent for the use of this technology.

The Sub-Committee hopes that this inquiry has gone some way to begin that debate, and that the Scottish Government will take up the challenge.

Police Scotland currently use retrospective facial recognition technology. Its procedures and practices would benefit from a review by the Scottish Police Authority and any incoming Scottish Biometrics Commissioner.

In particular, consideration of the risks and legal implications of Police Scotland accessing and using any images held illegally on the UK Police National Database of people who have not been convicted of any crime.

The same concerns arise from Police Scotland’s ability to access and use images of people who have not been convicted of any crime, but which are retained on the legacy IT systems they inherited from the former Scottish police forces.

The Sub-Committee believes that the police must have all necessary tools at their disposal to combat crime and keep communities safe.

New technologies have the potential to assist Police Scotland in detecting and solving crimes. However, each new technology must be assessed on its merits, with an honest and transparent discussion of both the benefits and the risks.

The Sub-Committee warmly welcomes Police Scotland’s intention to introduce the use of ethics panels to consult with relevant stakeholders to identify and mitigate risks, and to inform its decisions on whether to introduce new technologies.

The Subcommittee's report concludes -

Live facial recognition technology 

Police Scotland does not currently use live facial recognition technology. However, at present plans to introduce facial recognition technology are included in Police Scotland’s 10-year strategy, Policing 2026.

The evidence received by the Sub-Committee during its inquiry indicates that a number of safeguards need to be met, prior to Police Scotland introducing the use of this technology. A key issue to be resolved is the technology’s lack of accuracy.

It is clear that live facial recognition technology is currently not fit for use by Police Scotland. The Sub-Committee believes that there would be no justifiable basis for Police Scotland to invest in technology which is known to have in-built racial and gender bias, and unacceptably high levels of inaccuracy.

The Sub-Committee therefore welcomes Police Scotland’s confirmation that they will not introduce live facial recognition technology at this time. We also welcome their commitment to participate in a wider debate on policy, which will include civil liberties groups and academics, and to ensure that necessary safeguards are in place, prior to making any decision to introduce live facial recognition technology. Wide stakeholder engagement has clearly added value to current plans to deploy cyber kiosks.

However, if Police Scotland does not now intend to introduce live facial recognition technology by 2026, the Scottish Police Authority should update the 10-year strategy to reflect that position, as part of the planned review in 2020.

If Police Scotland does intend to introduce live facial recognition technology at some point in the future, the impact of its use must be fully understood prior to any decision being taken to introduce it to policing in Scotland.

The recent challenges in court to the legality of the use of live facial recognition technology by the police services in England and Wales suggests that there is a lack of public consent for its use, as well as a lack of confidence in the current legal framework being relied upon.

The Sub-Committee recommends that the following actions be taken prior to any decision to introduce live facial recognition technology to policing in Scotland:

• The Policing 2026 strategy should be updated to include details of the type of technology to be introduced, and the necessity and parameters of its use. The strategy’s equality and human rights impact assessment (EqHRIA) should also be reviewed by the Scottish Police Authority to ensure that it is suitably robust.

• The Scottish Police Authority must ensure that comprehensive human rights, equalities, community impact, data protection and security assessments are carried out.

• Similar assessments are also required prior to introducing any other technologies within Policing 2026, especially where there is a risk of collateral intrusion into areas of personal privacy and human rights. Any such assessments should be made publicly available.

• The Cabinet Secretary for Justice must ensure that there is a robust legal and regulatory basis for the use of live facial recognition technology in Scotland. This would provide legitimacy for the police service and assurance for the public.

The Sub-Committee requests clarification of the Government's plans, and whether this would include a consultation on public consent for the use of this technology. 

The Scottish Police Authority must review the legal challenges to the use of live facial recognition technology by police forces in England and Wales, and consider how to mitigate the risk of similar legal challenges in Scotland.

The Sub-Committee has not received sufficient evidence of the necessity to introduce live facial recognition technology, or that it is possible to use it in a proportionate way. Its use on people who attend legitimate and legal pursuits, such as peaceful protests, concerts or sporting events, is not necessary or proportionate. 

The Scottish Police Authority should assess the necessity, proportionality and parameters of its use. Police Scotland needs to demonstrate that there is public consent for the use of live facial recognition technology before introducing it, as a lack of public consent risks undermining the legitimacy of the technology and potentially, public confidence in policing. It could also represent a failure to meet the principles set out in the Police and Fire Reform (Scotland) Act 2012.

Any consultation on the introduction of the use of live facial recognition technology must take into consideration its potential impact on human behaviour and the relationship between the public and the police.

Police Scotland and the Scottish Police Authority must clarify how they will ensure that data protection requirements will be met for the use of live facial recognition technology. This should include confirmation of whether a data protection impact assessment detailing the risks and how these are to be mitigated would be a necessary requirement.

The Scottish Police Authority should take account of the UK Biometrics and Forensics Ethics Group's framework of ethical principles when considering Police Scotland’s proposal to introduce the use of live facial recognition technology.

To provide public confidence, any incoming Scottish Biometrics Commissioner should consider any future plans by Police Scotland to introduce the use of live facial recognition technology prior to a decision being taken by the Scottish Police Authority to approve its introduction.

Retrospective facial recognition technology

Police Scotland currently use retrospective facial recognition technology, which includes facial search and match processes.

The Sub-Committee heard concerns about the legal basis for Police Scotland’s use of retrospective facial technology, and whether their processes meet human rights and data protection requirements.

The lack of legislation enabling Police Scotland to retain and use photographic images held on its IT systems is an issue which must be addressed.

Police Scotland’s retention and use of images of innocent people held on its legacy IT systems and on the UK Police National Database, is another issue which must be addressed.

This practice infringes the human rights of those whose images are retained and represents an ongoing risk of both legal challenge and reputational damage to Police Scotland.

The Sub-Committee is concerned about the lack of regulation and transparency over the use of facial recognition technology by private companies and in the wider public sector, and their practice of sharing the data they collect with the police service. If the Scottish Biometrics Commissioner is not to have any formal oversight of the private sector or wider public sector, they will not be held to the same standard as the police service.

The Sub-Committee recommends that the following actions be taken to address concerns about Police Scotland’s use of retrospective facial recognition technology: The Scottish Government should confirm whether it will legislate to enable Police Scotland to take, retain, use and share photographic images. 

The Scottish Government should address the lack of regulation over the use of facial recognition technology by private companies, and by the wider public sector, and the data they share with the police service. Police Scotland should to provide details of its plans, including the timescale, for deleting images of innocent people retained on legacy databases. 

The Scottish Police Authority should carry out a review of Police Scotland’s use of retrospective facial recognition technology. This should include their use of the UK Police National Database and the legal basis for uploading photographs to that database. It should also include consideration of the consequences of their access to and use of any images of innocent people held illegally on that Database. 

The review should take a human rights-based approach to this assessment. 

During its inquiry, the Sub-Committee considered Glasgow City Council’s plans to introduce ‘Suspect Search’ software into its public space CCTV system, and to provide Police Scotland with access to the data it collects and creates. Glasgow City Council confirmed in their written evidence that the software is not based on facial recognition, but on characteristics, such as full body image. They also confirmed that it has a tracking functionality, which is described as “quasi-real time”, to reflect the time delay in tracking an individual. The software has not yet been introduced, as the UK Information Commissioner’s Office is currently considering the data protection impact assessment. 

The Sub-Committee is to write to the ICO to request an update on its consideration, and to Glasgow City Council to request further details of its plans.

The Sub-Committee asks the Scottish Police Authority to review Police Scotland’s plans to access and use Glasgow City Council’s Suspect Search technology. This should include consideration of whether all the necessary impact assessments have been undertaken and safeguards met.