Algorithmics

'The Theory of Artificial Immutability: Protecting Algorithmic Groups under Anti-Discrimination Law' by Sandra Wachter in Tulane Law Review (Forthcoming) comments 

Artificial Intelligence (AI) and machine learning algorithms are increasingly used to make important decisions about peoSandra Wachter ple. Decisions taken on the basis of socially defined groups can have harmful consequences, creating unequal, discriminatory, and unfair outcomes on the basis of irrelevant or unacceptable differences. Equality and anti-discrimination laws aim to protect against these types of harms. 

While issues of AI bias and proxy discrimination are well explored, less focus has been paid to the harms created by profiling based on groups that do not map to or correlate with legally protected groups such as sex or ethnicity. Groups like dog owners, sad teens, video gamers, single parents, gamblers, or the poor are routinely used to allocate resources and make decisions such as which advertisement to show, price to offer, or public service to fund. AI also creates seemingly incomprehensible groups defined by parameters that defy human understanding such as pixels in a picture, clicking behavior, electronic signals, or web traffic. These algorithmic groups feed into important automated decisions, such as loan or job applications, that significantly impact people’s lives. 

A technology that groups people in unprecedented ways and makes decisions about them naturally raises a question: are our existing equality laws, at their core, fit for purpose to protect against emergent, AI-driven inequality? 

This paper examines the legal status of algorithmic groups in North American and European anti-discrimination doctrine, law, and jurisprudence. I propose a new theory of harm to close the gap between legal doctrine and emergent forms of algorithmic discrimination. Algorithmic groups do not currently enjoy legal protection unless they can be mapped onto an existing protected group. Such linkage is rare in practice. In response, this paper examines three possible pathways to expand the scope of anti-discrimination law to include algorithmic groups. 

The first possibility is to show that algorithmic groups meet the law’s requirements to be considered a protected ground. A novel taxonomy of characteristics that make groups worthy of protection is developed, covering (1) immutability and choice, (2) relevance, arbitrariness, and merit, (3) historical oppression, stigma, and structural disadvantage, and (4) social saliency. Algorithmic groups typically do not meet these requirements in practice. 

The second possibility is to examine the law’s theoretical account of the “moral wrongness” of discrimination. I will show that algorithmic groups do not invoke the same moral wrongfulness that the law wants to prevent. 

The third possibility is to find an opening in the fundamental doctrines and remit of anti-discrimination law. Many scholars agree that the law aims to eliminate differences between certain groups, or to create a ‘level playing field’. This approach creates a problem for algorithmic groups because it may be impossible to establish the existence of oppression, or to show that certain groups receive better treatment than others. 

A new theory of harm is required if algorithmic groups ought to be protected under the law. Different theories of equality share common ground in their commitment to protect basic rights, liberties, freedoms, and access to goods and services. This common ground provides an opportunity to bring algorithmic groups within the scope of the law. The harms and interests facing these algorithmic groups are the same as those targeted by the law; only the mode, perpetrator, and process of bringing about the harms are different. 

The paper closes with two contributions to drive legal reform and judicial reinterpretation. Firstly, I propose four key elements of a good decision criteria reflecting the law’s fundamental aims: stability, transparency, empirical coherence, and ethical and normative acceptability. AI makes these criteria effectively impossible to meet in practice. 

Secondly, I propose a new theory of harm, the “theory of artificial immutability,” that aims to bring AI groups within the scope of the law. My theory describes how algorithmic groups act as de facto immutable characteristics in practice. I propose five sources of artificial immutability in AI: opacity, vagueness, instability, involuntariness and invisibility, and a lack of social concept. Each of these erodes the key elements of good decision criteria. 

To remedy this, greater emphasis needs to be placed on whether people have control over decision criteria and whether they are able to achieve important goals and steer their path in life. I conclude with reflections on how the law can be reformed to account for artificial immutability, making use of a fruitful overlap with prior work on the “right to reasonable inferences.”

Cybernetic Citizenship?

'The Rise of Cybernetic Citizenship' by Wessel Reijers, Liav Orgad and Primavera de Filippo in (2022) Citizenship Studies comments 

The global COVID-19 pandemic demonstrates how states and companies mobilise new sociotechnical systems to track, trace, evaluate, and modulate the behaviour of citizens. This development illustrates an already-existing transformation of citizenship governance, which this article captures as the move to “cybernetic citizenship.” Part I explores the concept of cybernetic citizenship, providing an overview of the concepts of “cybernetic” and “citizenship” and synthesising these in a discussion of the cybernetic modulation of citizenship. Part II presents the rise of cybernetic citizenship in the urban realm, zooming in on the case of the Chinese Social Credit System and the way it affects civic life in the urban realm. Part III turns into the normative implications of cybernetic citizenship, arguing that it confronts the idea of citizens as equal, free, and vigilant. It challenges equality by turning rights into ends, freedom by turning status into process, and civic virtue by turning excellence into effectiveness.

The authors argue

Systemic crises like wars and natural disasters tend to propel new waves of technological innovation. This observation is demonstrated by the global COVID-19 pandemic, which has led to massive data collection on citizens, track- and trace applications, and automated means of intervention. A fascinating example comes from China, where the pandemic initially started, which has deployed its emerging Social Credit System (SCS) to fight the pandemic (Knight and Creemers 2021). The SCS uses technological innovations to rate (and often score) citizens to improve public order and trust. For instance, it has made it more socially costly to engage in behaviours that might lead to spreading the disease, such as hiding virus symptoms or evading medical treatment. At the same time, the SCS has been used to relax some restrictions on behaviours that would otherwise be more costly, for example, enforcing financial obligations that are harder to meet due to the economic downfall. The costs and benefits imposed by the SCS are not only monetary, but rather attached to one’s status, rights, and duties as a citizen. 

This article investigates the emerging form of cybernetic citizenship as illustrated by the SCS. It builds on a growing body of literature that addresses the transformation brought about by technology to the concept of citizenship (digital citizenship, Mossberger, Tolbert, & McNeal, 2008; e-citizenship, Dumbrava, 2015; algorithmic citizenship, Cheney-Lippold, 2016). At first, literature focused on the way technologies shaped existing, stable aspects of citizenship, for instance, by looking at the digitalisation of state services and online civic education. More recently, there has been a turn toward questioning the foundations of liberal citizenship, as conceptualised in the tradition that follows T.H. Marshall (1950). Most notably, Marion Fourcade has coined the term “ordinal citizenship,” which implies a transformation of citizenship due to the emergence of large sociotechnical systems that measure, quantify, and evaluate citizens (2021). Some utopian and dystopian scenarios related to the shift in the essence of citizenship due to cybernetic systems were already discussed decades ago by philosophers of technology like Lewis Mumford (1965) and Langdon Winner (1969, 1978). This article continues this strain of thought and draws from recent work in the humanities (Pickering 2010; Hui 2019) that signals the revival of cybernetic thinking. 

The article’s central claim is that, empirically, we are witnessing the rise of cybernetic citizenship as demonstrated by the Chinese SCS and similar sociotechnical systems around the globe; normatively, this development has urgent ethical, legal, and political implications. First, cybernetics professes to be a general epistemology that takes the networked computer as its model (Winner 1969). While citizenship in the current international order of states is still primarily based on the mechanised worldview of enlightenment philosophy, cybernetics challenges this worldview and thereby the sense of citizenship based on it. Second, cybernetics accounts for how sociotechnical systems learn and adapt their behaviour according to contingent inputs (Krivý 2018). Hence, it explains how citizens’ seemingly accidental and contingent behaviours are connected and harnessed for citizenship governance. And third, initially emerging in the wake of computerised systems, cybernetics speaks to a much longer history of philosophical thinking that mobilises the notion of a living machine to understand the institution of citizenship (Mumford 1965). 

The article proceeds as follows. Part I develops the concept of cybernetic citizenship, synthesising the outlines of “cybernetics” and establishing perspectives on “citizenship”. Part II describes the rise of cybernetic citizenship through the lens of the application of the SCS in the urban realm in China. Part III develops a normative analysis of cybernetic citizenship, arguing that it erodes core distinctions that inform modern citizenship: between rights and ends, status and process, and excellence and effectiveness.

Jurisprudence

'Mutual Borrowing and Judicial Dialogue Between the Apex Courts of Australia and the United Kingdom' by Mary Arden and James Edelman (preprint of (2022) 138 Law Quarterly Review 217)  comments 

The common law is one of England’s greatest exports. The more common it remains, the more cogent it will be. It is inevitable that common law jurisdictions will diverge in some applications of the common law in areas where local influences, such as the indirect effect of domestic statutes, play a part. But in areas where the common law is concerned with more universal issues, and not substantially affected by local considerations, the interrelationship between common law jurisdictions is a powerful force for the common law to “work itself pure”, to use the expression of Lord Mansfield. 

One significant factor in the interrelationship between common law jurisdictions is the interaction of the apex courts in those jurisdictions. However, there has been little study of how the development of the common law is affected by particular relationships between courts or particular differences between courts. This article contributes to that understanding by focusing upon the relationship between the apex courts in the UK and Australia on which each of us sits or has sat: the United Kingdom Supreme Court (UKSC) and the High Court of Australia (HCA). The relationship between, on the one hand, the UKSC or its predecessor, the Appellate Committee of the House of Lords and, on the other hand, the HCA, is one that has evolved over time. In particular, the HCA initially developed the common law in a subordinate role to the House of Lords. But the position has evolved to one in which the HCA and the UKSC now borrow from each other in the development of the common law. 

Comparison of the substantive common law developed by our courts is a common matter for academic comment and discussion. The development by each court of the common law has been part of a dialogue between the two courts, sometimes intermediated by important academic comment. What is far less well known is how our courts are similar or different in their conventional practices—those procedures and processes that are not usually set out in statutes or other written rules. A comparison of these conventional practices and procedures is useful for all courts when considering how to develop or improve their own practices. But, perhaps more fundamentally, an understanding of these practices, and particularly the ways in which they differ, can reveal the context in which the dialogue occurs for the separate development of the common law by the apex courts in our two jurisdictions and might further advance dialogue between our courts beyond the substance of the common law to include also the institutional machinery by which the common law is developed by our courts. 

Against that background, we begin with a brief account of the evolution of the relationship between the courts before going on to give examples of how they have referred to and borrowed from one another and, importantly, developed a judicial dialogue. We then turn to the area of conventional practices which shape the context in which this dialogue can occur but upon which little has been written, perhaps due to their non-public nature. We describe and compare some of the important conventional practices and analyse how they differ.

Thing Rights

'The Desirability of Legal Rights for Novel Beings' by Joshua Jowitt in (2021) 30(3) Cambridge Quarterly of Healthcare Ethica 504-516 comments 

The debate around whether novel beings should be legally recognized as legitimate rights holders is one that has produced a vast amount of commentary. This paper contributes to this discourse by shifting the normative focus of moral rights away from criteria possessed by the novel beings in question, and back toward the criterion upon which we ourselves are able to make legitimate rights claims. It draws heavily on the moral writing of Alan Gewirth’s identification of noumenal agency as the source of all legitimate rights claims. Taking Gewirthian ethical rationalism as providing a universally applicable hypothetical imperative which binds all agents to comply with its requirements, the paper argues that it is at least morally desirable that any legal system should recognize the moral rights claims of all agents as equally legitimate. By extension, it is at least morally desirable that the status of legal personhood should be granted by a legal system to all novel beings who are noumenal agents, insofar as this status is necessary for rights’ legal recognition. Having established the desirability of this extension, the paper closes with an examination of recent cases involving both biological and nonbiological novel beings in order to assess their conformity with the desirable approach outlined above. The paper demonstrates that such recognition is conceptually possible, thus requiring us to move beyond the current anthropocentricity of legal systems and recognize the legitimate moral claim for legal personhood for all novel beings who possess noumenal agency. 

Jowitt states 

The idea of a legal rights bearer is a strange one, and in some ways is not dissimilar to an elephant; it is difficult to describe one to a person unfamiliar with the concept, but we all think we would recognize one when we see them. Yet this certainty might be misplaced. In the contemporary world, with technological and biological advances that are developing rapidly around us, the status of certain novel beings as bearers of legally enforceable rights is far from settled. 

These beings have various names and forms: robots, cyborgs, androids, artificial intelligence, medically enhanced humans, biological intelligence and so on. Indeed, the confusion as to the legal status of these beings is, in part, due to the very breadth of the physical form a novel being may take. With various physical entities before us, it is difficult to identify a relevant criterion by which we can assess the normative validity of the legal rights claims that are, or in future may be, made by such beings. The purpose of this paper is to argue that this normative question requires a normative solution that identifies a characteristic that can justify the ascription of legal rights. 

The paper will begin by summarizing the moral writing of Alan Gewirth, before moving on to assess the extent to which novel beings could be said to be bearers of morally legitimate claim-rights. Having demonstrated that there is no conceptual difficulty in the contention that the test for moral patiency provided by Gewirth is capable of providing a normative justification for moral claim-rights for novel beings who come within its starting parameters, the paper will move on to argue that recognition of a connection between Gewirthian morality and the concept of legal personhood is desirable. This will be achieved by exploring the extent to which the law already deals with the problem of whether or not both biological and nonbiological novel beings are legitimate bearers of legally enforceable rights, concluding with an analysis of whether or not the law is moving in a morally desirable direction.

Robodebt

The latest report from the Senate Community Affairs Committee inquiry into RoboDebt comments 

I really lost my trust in the government. This is you, as an individual, fighting the Commonwealth of Australia. This is your government saying something that's just not true. When they're saying to me on the phone, 'Your circumstances have changed,' my circumstances haven't changed. How do you fight that? How do you trust a system that treats you like that?

2.1 The Income Compliance Program has been described, credibly, as a ‘massive failure of public administration’.  The committee’s second interim report outlines the significant failures of the program and the human cost of compliance. 

2.2 This chapter summarises some of the most significant errors in the Income Compliance Program, changes that have been brought about through appropriate scrutiny of the Government’s actions and discusses the Government’s repeated failure to provide key information and documents to the committee and the Senate. 

The role of automation 

2.3 Much of the initial criticism of the Income Compliance Program stemmed from automated processes and the operation of online systems in the assessment of a discrepancy, as well as on the steps taken to advise a person of the assessment and the requirements to verify or update their income.4 Although there have been improvements to these online systems, concerns about the reliance on automation in administrative decision‑making have persisted. 

2.4 Submitters and witnesses noted that automated data-matching services have a legitimate role to play in income compliance programs; however, such methods should be fair, transparent and accountable.  Economic Justice Australia submitted that income data matching should ‘only ever be used as a starting point which triggers further investigation by Services Australia compliance officers’. 

2.5The experiences of a client of the Welfare Rights and Advocacy Service demonstrate the extent of automation and how Services Australia employees were unable to override automated processes:

…a client with an acquired brain injury on [the disability support pension]…was referred to us from the [Administrative Appeals Tribunal]. Debt recovery was supposed to be paused whilst the review was completed…[Services Australia] confirmed that this was noted on her record. Despite this, she kept getting calls from a debt recovery team demanding she start repaying the debt. When I queried this, I was initially told it was probably a scam call and she should ignore it. She then got two more calls from debt recovery, and we went back to Centrelink. Then they basically said, 'Oh, yes. Actually it was us. The computer is initiating these calls and they can't be overridden. The best we can do is reduce the amount that she has to repay’. 

2.6 Several submitters examined the potential implications for individuals when administrative decisions rely on automation. These submitters noted that automated technologies can improve the quality and efficiency of administrative decisions provided there are safeguards in place, such as review rights and transparency over the use of data in these decisions. 

2.7 The Australian Human Rights Commission has recommended that where artificial intelligence is used to support decision‑making, governments must ensure these decisions remain ‘lawful, transparent, explainable, [that artificial intelligence is] used responsibly, and subject to appropriate human oversight, review and intervention’. 

Use of averaged income data to assert the existence of a debt 

2.8 A central feature of the Income Compliance Program was the reliance on averaged income data to identify potential overpayments.  This method was found to be unreliable because averaged income calculations do not reflect the reality of how many income support recipients earn income over time. 

2.9 One witness told the committee how their work pattern made it impossible to accurately report their earnings to Services Australia 

I was working shift work for an out of home care for youth in out of home trauma care. I worked dayshift, afternoon shift and night shift. We had 3 different pay levels and never knew when we would be working. We could get called in at the last minute. I never knew how much I would be getting paid. I informed this to Centrelink and they told me I had to guess my earnings for the fortnight...I ended up guessing like I was told to and they hit me with a huge debt. I was so devastated. I gave them some payslips but that didn't change a thing. 

2.10 Witnesses and submitters told the committee that the Government’s use of incorrect or incomplete income information called into question the legality of debts raised under the Income Compliance Program.  These concerns were confirmed in Deanna Amato v The Commonwealth of Australia (Amato), where Justice Davies ordered by consent that calculations based solely on averaged fortnightly income data are insufficient to establish the existence of a debt. 

2.11 The decision in Amato supported a successful class action against the Commonwealth.  This was discussed in the fifth interim report.   

Interactions with Services Australia 

2.12 Deficiencies in online systems, the methods used to calculate debts, and communication processes have been consistently raised as areas where Services Australia has not fulfilled its own service commitments. These failures have had a demonstrably negative impact on people’s interactions with Services Australia in the course of their efforts to understand and resolve debts. 

2.13 When the Income Compliance Program was first introduced Services Australia’s described its service commitments as being ‘at the core of the way we develop and deliver our services’,  and were supported by a range of business improvement priorities, including to ensure: individual circumstances are taken into account; customers are able to access the information they need; decision-making timeframes and processes are clear and available to customers; products and services take into account customer feedback; and Services Australia acts in a manner that is transparent and consistent. 

2.14 From 2019–20, Services Australia’s vision became ‘to provide customer‑centred, trusted services that are respectful, simple, helpful and transparent’.  Evidence from inquiry participants indicated these service delivery standards were not met in respect of the Income Compliance Program. 

2.15 Submitters and witnesses told the committee that Centrelink’s debt notification letters were unclear and did not provide an explanation of how or why a debt had been raised. When these people contacted Centrelink to seek an explanation, staff were unable to assist them. Inquiry participants reported being told their information was not on file; the information held by Centrelink did not align with their records; or they were given information that contradicted previous communications. 

2.16 One submitter described the impact of their interactions with Services Australia as follows: …

dejected, beaten, stomped on and feeling dehumanised I just paid the full amount to get it over and done with. I was done with fighting because I knew I was dealing with Centrelink. The government agency that just doesn’t care about the people they serve.  

2.17 The committee was informed that Freedom of Information (FOI) requests were often the only way to gather information relating to debt cases, and that information released under FOI enabled advocates to identify the possible origins and test the validity of a client's alleged debt. 

The impact on current and past income support recipients 

2.18 The committee received evidence that people issued with debts under the Income Compliance Program were disproportionately from vulnerable cohorts or were more likely to become vulnerable when a debt was being collected.  The committee also received evidence that vulnerable people were forced to engage with the program without appropriate support from Services Australia, causing them to rely heavily on support from the community sector.  For example: [ 

Paul] worked at a supermarket pushing trolleys and received a modest income, which supplemented his disability support pension. His income was reported to Centrelink, and then, in the previous year, he received a debt notice of [$14 500] going back to around 2012. He did not understand the letters…The debt was raised and, as far as I'm aware, no support was provided to him in that process. 

2.19 The severe impacts for many people issued with debt notices cannot be understated. The underlying vulnerability of people issued with debts and the lack of support, combined with the difficulties interacting with Services Australia, created an environment where the notification of a debt was not simply a bureaucratic inconvenience, but an antecedent of serious harm to people’s emotional and financial wellbeing. 

2.20 Many people repaying debts issued under the Income Compliance Program experienced considerable financial hardship, pushing them further into poverty and making it more difficult for them to meet basic living expenses and exacerbating their stress and anxiety.  For some, particularly those experiencing financial difficulty and long‑term poverty, the shock of a sudden and unexpected debt, had a ruinous impact on their mental health. 

2.21 One submitter told the committee about their friend’s experience receiving several debt notices:

She had already repaid two debts [totalling approximately $300 in April and May 2017] when she received another debt call while at my house in June 2018. She broke down crying and shaking as she was told she owed [at least another $700]. She said “I can’t do this all over again”. 

2.22 The Australian Council of Social Service (ACOSS) told the committee that ‘no one should underestimate the stress and anxiety caused' when individuals have received initiation letters and debt notices: People have reported their life being ruined as a result of robodebt. People have experienced breakdown, anxiety, depression requiring medication, sleeplessness, stress causing physical illness, and fear. 

2.23 Several individuals have described thoughts of self-harm and suicidal ideation as a very real consequence of being in these circumstances.  Recognising that the issues around the causes of suicide are complex, the committee has received evidence of at least two suicides—Jarrad Madgwick, 22, and Rhys Cauzzo, 28—related to the Income Compliance Program and it is not clear how many more may also be linked to the program. 

2.24 The committee passes its deepest condolences to the families of those two young men and acknowledges that the acute and enduring impacts of this program on the mental health of many Australians remain undocumented and unacknowledged by the Government. 

Changes in Services Australia’s approach 

2.25 Improvements in Services Australia’s approach to income compliance have been supported by appropriate scrutiny of the Government’s actions through this and other inquiries. This section of the report summarises some important changes that are directly related to the issues discussed in this chapter. 

Debts will no longer be calculated solely using averaged income data 

2.26 In November 2019, the Government announced that it would no longer solely rely on averaged income data from the Australian Taxation Office. 

2.27The Government has also acknowledged that relying on averaged income data ‘to determine a debt where other information was not available or people did not engage with [Services Australia]’ was based on a ‘flawed assumption’. On 15 September 2021, the Government committed that ‘no debts will be re-raised based on annual income averaging.’ 

Move to near real-time compliance 

2.28 Services Australia has noted that data-matching activities have been undertaken retrospectively and that the agency is seeking to move towards near real-time compliance.  Changes implemented from July 2020 have enabled income support recipients to report the gross income as it appears on their payslip. 

2.29 The implementation of Single Touch Payroll (STP) is also likely to reduce discrepancies between earned and reported income, and therefore help to prevent overpayments.  STP introduced a mandatory requirement for employers to report payroll information to government. For most employees, this will occur each pay day. 

2.30 While inquiry participants were cautious about the introduction of STP,  many submitters and witnesses supported its use to help prevent overpayments and ensure that there is accurate information available to Centrelink.  Efforts to improve communication and transparency 

2.31 As noted in the second interim report, several other inquiries into the Income Compliance Program have highlighted the need for improved communications and transparency. 

2.32 For example, the Office of the Commonwealth Ombudsman’s (Ombudsman) most recent report made several recommendations to Services Australia and covered themes of communications, fairness and transparency. Services Australia has accepted, and worked with the Ombudsman to implement, many of these recommendations. 

2.33In relation to specific concerns about debt notification letters, Services Australia informed the committee that the current ‘content and the format of and the approach to the letters is based on the feedback from customers and other customer advocates’. 

2.34 Additionally, Services Australia told the committee that they are improving the explanations they provide to customers about overpayments. In particular, Services Australia noted that it provides explanations in simple English and ‘tips’ to assist with the prevention of debts in the future.   Services Australia advised that they aim to be ‘simple, helpful, respectful and transparent’ in their engagement with social security recipients. 

The deliberate withholding of information 

2.35 Throughout this inquiry, the committee has repeatedly requested crucial information from the Government, which has been refused on the basis that the release of information would harm the public interest (referred to as claims of public interest immunity or PII claims).  These claims require a clear statement of the ground on which immunity from production is asserted and the harm to the public interest that could result from disclosure of the information. 

2.36 Key information requested by the committee includes: briefings provided to Government throughout the course of the program; whether legal advice was obtained at various stages of the program, how many times the Government sought legal advice and the date of any such advice; the Government’s legal costs attributable to the program; and an Executive Minute to the Minister for Social Services, proposing a ‘new online approach to compliance’, dated 12 February 2015. 

2.37 These documents could reveal what the Government, the Department of Social Services and Services Australia knew about the legality of the Income Compliance Program and when they were alerted to the systemic failures of the program. These documents would provide the public with an understanding of the cost of government action to continue and defend the Income Compliance Program. 

2.38The Government’s rationale for withholding the relevant documents and information is that it ‘would or could’ reveal cabinet deliberations, is subject to legal professional privilege or that it could prejudice current and future court cases.  The Government’s failure to sufficiently establish PII claims was discussed and provided the basis for recommendations in the first, third, fourth and fifth interim reports of this inquiry. By adopting these recommendations, and thereby ordering that documents be produced, the Senate has signalled its rejection of the Government’s reasons for withholding this information. 

2.39 Rather than engage with public interest considerations in a genuine way, the Government has continued to offer the same public interest grounds as have been repeatedly rejected by the Senate, without genuinely describing the harm to the public interest that would be caused due to providing this information. At the same time, the scope of information being withheld on public interest grounds continues to expand. 

2.40 Odgers Australian Senate Practice provides the following commentary on resistance by government to orders for documents:

While the public interest and the rights of individuals may be harmed by the enforced disclosure of information, it may well be considered that, in a free state, the greater danger lies in the executive government acting as the judge in its own cause, and having the capacity to conceal its activities, and, potentially, misgovernment from public scrutiny. It may also be considered that a representative House of the Parliament is the best judge of the balance of public interests. 

2.41 The committee remains deeply troubled that the Government has not released critical information about the Income Compliance Program, either publicly or in camera. The committee again reiterates its rejection of the PII claims advanced by the Government and its concern that this is impeding necessary scrutiny of the Income Compliance Program. 

Calls for a Royal Commission 

2.42The second interim report referred to ‘growing pressure for the establishment of a Royal Commission’ and contained a recommendation that a broad‑based independent review with ‘powers to compel witnesses and evidence’ be established immediately. 

2.43 Royal Commissions may be established for a range of pragmatic reasons, including where there is a need ‘to investigate allegations of impropriety where the government, or an individual working in government, is involved.’  Royal Commissions have broad powers to compel the production of evidence and independently determine whether such evidence ought not be published. 

2.44 Although the settlement of the class action has seen money returned to people unlawfully issued with debts, it did not make any findings that would satisfy the need for an independent review. Important questions remain regarding how the failures of the Income Compliance Program were allowed to occur and what action is required to ensure these mistakes are not repeated. The devastating impacts of the Income Compliance Program intensify the need for absolute transparency and accountability. 

Committee view 

2.45The Income Compliance Program indiscriminately targeted some of Australia’s most vulnerable people. It caused significant and widespread harm to their psychological and financial wellbeing. The committee reiterates its concern that many people may not receive any form of compensation (monetary or otherwise), for the severe hardships they endured because of the program. 

2.46The Income Compliance Program relied extensively on online systems and data-driven processes. These methods can play an important role in supporting the efficient delivery of government services. However, use of technology by Government must be supported by appropriate safeguards, especially to protect vulnerable people. Rights to an explanation of administrative decisions and to have those decisions reviewed should never be displaced by the use of technology or online systems. 

2.47At a more fundamental level, the Government must ensure there is rigour in the methods used to determine the existence of debts and always ensure that people are treated fairly and with care and consideration for their circumstances. This did not occur for those issued with debts under the Income Compliance Program. Those who access payments through Services Australia are among Australia’s most vulnerable communities. Those who were sent illegitimate debts were often unable to challenge the debts due to the opacity of the system and their own difficult circumstances. 

2.48 A harmful program was allowed to continue despite warnings about its shortcomings that began within months of the decision in July 2016 to switch to automated, online systems. Claims for debts that had no basis in law continued for well over three years before a case in the Federal Court of Australia left the Government with little option but to ‘pause’ debt recovery. It took another six months for the Government to commit to repay the money it had already collected and cancel all debts based on income averaging. Recovery of supposed debts should have stopped as soon as the scale of the harm caused by the Income Compliance Program became apparent. 

2.49Despite numerous reports and inquiries, significant questions remain. This is due to a Government that continues to withhold critical information about the Income Compliance Program. This resistance takes place in the context of major public policy failures that have corroded public trust in both the Executive and the public service and may cause many to question what these documents contain. 

2.50 The committee met with entrenched resistance and opacity to its request for information from Government Ministers and departments, severely hindering its ability to produce this report for the Senate. The committee was met with a dynamic and changing barricade of Parliamentary and departmental tactics to hide the faulty or non-existent legal advice underpinning the Income Compliance Program. The Government made frequent and often overlapping claims of public interest immunity, on the basis of legal professional privilege and disclosure of cabinet deliberations and, later, ‘unreasonable diversion of resources’. These claims created a mosaic of obfuscation that leaves many significant and necessary questions unanswered. 

2.51 In the absence of immediate production of the information being withheld, the committee considers that a Royal Commission is required to completely understand how the failures of the Income Compliance Program came to pass and why they were allowed to continue for so long despite the dire impacts on people issued with these debts. 

2.52 These failures cannot be ignored or left in the past. The Australian public, and especially the people harmed by this program, deserve to know what advice was provided to Government and how this advice informed decision‑making.

Civil Society

With interminable discussion about the TRIPS Waiver in mind it's interesting to see 'New Responses to the Legitimacy Crisis of International Institutions: The Role of ‘Civil Society’ and the Rise of the Principle of Participation of ‘The Most Affected’ in International Institutional Law' by Jochen von Bernstorff in (2021) 32(1) European Journal of International Law 125–157 - 

 a description and assessment of the most important discursive strategies used to enhance and justify various models of ‘civil-society participation’ in international institutions since the late 19th century. It starts from the assumption that the two main rationales for, or concepts of, ‘civil-society’ participation are functionalism and democratization. The article also notes that, as an offshoot of the democratization rationale, a new empirical and discursive 21st-century trend has partially replaced classic non-governmental organizations (NGOs) with so-called ‘affected person’s organizations’ in international institutions. In this context, the article claims that the field of international institutional law is currently witnessing the rise of a principle of participation of ‘the most affected’. This shift arguably is an institutional strategy to respond to a profound legitimacy crisis of both international NGOs and the so-called ‘global governance’ structures shaped over the last 30 years. Against the backdrop of various theoretical approaches to the problem of representation and affectedness in political philosophy and international law, the article critically assesses if, and to what extent, the involvement of ‘the most affected’ in international organizations can alter the legitimacy resources of international law and its institutions. 

 Von Bernstorff comments 

 In the 1990s, ‘civil-society’ participation in ‘global governance’ through the involvement of non-governmental organizations (NGOs) was seen as a panacea-like concept meant to ‘democratize’ international institutions and to facilitate the realization of ‘common interests’ in international law. This article starts from the empirical assumption that the idea of NGO representation of abstract common interests, such as environmental protection or fighting impunity from human rights violations, has given way to the more recent principle of participation of ‘the most affected’ in international institutions. Classic NGOs in various fields of law- and policy-making are increasingly being replaced by local and transnational social movements, so-called ‘affected persons’ organizations’ (APOs), in reaction to a perceived crisis of legitimacy and a backlash against both international institutions and international NGOs. This trend has, over the last 10 years, already transformed rules of civil-society participation in at least 20 prominent international organizations. 

For example, members of indigenous groups and peasant organizations have successfully lobbied for new rights instruments and institutional reform to ensure protection, participation and influence. Persons affected by HIV/AIDS, tuberculosis and malaria have been accorded designated seats on decision-making bodies in the Global Fund, UNITAID and other institutions of global health governance. Organizations that represent disabled people took on a strong role in the negotiations of the UN’s Convention on the Rights of Persons with Disabilities. Working children movements from the Global South challenged the Western understandings of child labour at various intergovernmental organizations (IOs). Among the first institutions which modified their rules of procedure accordingly were the Committee on World Food Security (CFS) in Rome, the Monitoring Mechanism of the Convention on the Rights of Persons with Disabilities (CRPD) and the World Health Organization (WHO). In the fight against climate change, international institutions are also experimenting with new forms of participation of the most affected in the form of APOs. Over the last 10 years, powerful global networks of social movements have been created. Via Campesina, a global network of local peasant movements and perhaps the most influential non-state and non-business actor in the UN Food and Agriculture Organization (FAO), is a salient example of a social movement claiming the status of an affected persons’ organization. Classic international NGOs are now forced to co-operate with social movements representing ‘the most affected’, or else they increasingly lose influence. Another example from a different field are the ‘White Helmets’, a volunteer organization of rescue workers providing help to those affected by the civil war in Syria, who have emerged as a new actor in international humanitarian law. 

Activists involved in these movements do not want to exercise formalized decision-making powers. Rather, the general idea is to participate in institutionalized deliberation in order to influence the content of adopted decisions. For social movements, participation in international institutions is one strategy among others aimed at fostering the transnational mobilization of social resistance against perceived hegemonic networks of powerful national administrations, scientific expertise and influential corporate actors. The status of speaking, if credible and well-coordinated, for those who are being negatively affected on the ground by certain norms and policies can give these voices a high moral and empirical persuasiveness in these institutional settings. Usually, however, positions taken by APOs are more radical and uncompromising than those of classic NGO representatives. Even without formal voting rights, APOs can have a considerable impact on the content of new international norms, standards and decisions; one striking example being the negotiations on the UN Convention on the Rights of Persons with Disabilities, during which many persons with disabilities representing disability APOs participated under the motto ‘nothing about us without us!’ and exerted considerable influence on the content of the new document. 

The general concept of affectedness is, of course, not new; nor has it remained unobserved by researchers in social sciences. To start with, it is a basic and longstanding democratic ideal that those affected should have a say on issues that concern them. In traditional Western democratic theory, from Kant to Rawls, being affected by rules enforced in a certain delimited territory has been conceptualized as requiring elections of representative bodies on a ‘one citizen, one vote’ basis to ensure equal influence of affected individuals on the composition of parliaments and executive bodies. More recently, global justice scholars have sought to conceptualize an ‘all-affected principle’ (AAP) as a normative expectation for law- and policy-making with transnational effects and extensively discussed its potential implications from the perspective of political philosophy. More relevant to the specific phenomenon under scrutiny here, Nancy Fraser proposed to replace the ‘all-affected principle’ with a more specific principle of involving all those groups ‘subjected’ to a given transnational governance structure (‘all-subjected principle’). Legal scholars in this context have framed new forms of participatory and multi-level policy-making as ‘global experimentalist governance’, or, like Richard Stewart, have developed normative frameworks from a global administrative law (GAL) perspective in order to scan institutional access norms for unjustified ‘disregard’ of affected interests. 

While building on some of these strands of scholarship in law and political philosophy dealing with the involvement of social movements in current global governance structures, this article attempts to go beyond the current state of the debate. It starts from the empirical finding that a considerable number of IOs have already changed their rules of procedure in order to involve APOs in their work.  Second, this trend will be contextualized with the help of broader historical narratives of civil-society participation in international law. And, lastly, the observed move to involve APOs in current governance structures is interpreted and will be assessed as a reaction to a current legitimacy crisis of international institutions. The system of global governance structures, which was erected over the last 30 years, has proven to be quite efficient in creating globalized market structures, but is increasingly seen as being more or less dysfunctional with regard to the protection of central social and environmental values of the human beings and other living species inhabiting our planet. Moreover, and despite the high post-1990s hopes connected to NGO participation in global governance structures, this arguably asymmetrical institutional set-up has, all in all, reduced the space for local and national democratic contestation of the ‘iron cage’ (Max Weber) of globalized market structures. In this context, involving APOs in international organizations is presented by institutional actors as a potential cure for these illnesses. 

The remainder of this article will be structured around a historically informed ‘grille de lecture’ (interpretative framework) presenting two central concepts of civil-society participation in international law – the functionalist concept (Section 2) and the democratization concept (Section 3) – the latter of which has, more recently, arguably also ushered in the quest for the participation of APOs or ‘the most affected’ (Section 4). The last and concluding section seeks to assess whether, and to what extent, the rise of the involvement of affected persons’ organizations (APOs) will actually alter the contested legitimacy resources of international law and its institutions (Section 5). All concepts presented here are discursive structures which scholars and international institutions use to legitimize the involvement of civil-society actors; these concepts do not necessarily correspond to the understanding or self-description on the part of NGOs or social movements seeking access to international law-based organizations. The following broader narratives of civil-society participation, including their conceptual emanations over time, are portrayed neither as mutually exclusive nor as an overall progress narrative. Instead, these concepts (functionalist, democratic and most-affected) have temporarily co-existed in the scholarly and political discourse, as well as in the legal constitutions, resolutions and rules of procedure of international institutions. Their first appearance on the international scene can, however, be chronologically ordered. 

While presenting the changing empirical and normative conceptual landscape of civil-society participation over time, this article will also look into the complex relationship between NGOs and social movements, business organizations and member states within international institutions under the different concepts. The term ‘international civil society’ will, for the purposes of this article, be understood as an antagonistic space of human association and relational networks – formed for the sake of economic, cultural and political interests and ideologies; it is both a space and an instrument of political battles for leadership and rule within and through international institutions. According to this understanding of an ‘international civil society’, there is a focus on private associations but no water-tight separation between private actors, markets and public institutions at the various levels of governance. Instead, their respective actions and utterances are considered to constitute a common, potentially embattled political space. The ability to dominate or influence this space is considered essential to restructuring domestic and transnational socio-economic relationships around the globe.

Litigation

Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc [2022] QSC 82 discusses costs in a dispute where the plaintiff was a member of a small not-for-profit association, the management committee of that association resolved to terminate the plaintiff’s membership, a summary judgment application was brought more than eight years after the proceeding commenced, the plaintiff relied on contracts created by s 71 of the Associations Incorporation Act 1981 (Qld), the plaintiff has been ordered to pay in excess of $130,000 in costs (the claim for pecuniary damages for breach of contract is approximately $1,300 per annum) and the plaintiff’s unsuccessful appeals and failure to observe rule 5 of the Uniform Civil Procedure Rules 1999 (Qld) added to the costs of the proceeding. 

Jackson J states 

[1] These are two applications for summary judgment or orders stopping the proceeding under s 73 of the Associations Incorporation Act 1981 (Qld) (“the Act”) or striking out the statement of claim. 

[2] The applications raise two out-of-the-ordinary questions: first, does a committee member of an association incorporated under the Act contractually promise each member that he or she or the committee members as a body will observe the rules of the association in acting as the committee? Second, are there circumstances that are sufficient under s 73 of the Act to warrant an order that the court stop a proceeding because the issue raised is trivial or it was unreasonable to make the application, or the unreasonable conduct of a party has been responsible for making the application or has added to the cost of the proceeding? 

[3] It will become apparent that the applications should succeed, one on a summary judgment basis and the other because a proceeding of this kind under s 73 involving unreasonable conduct by the plaintiff should be stopped. It is necessary to explain the bases for those conclusions and in doing so to decide the arguments presented for determination. ... 

[4] The plaintiff is self-represented. He has what now seems to be a morbid legal fascination reflected in the volume of materials he filed in response to these applications. Documents he describes as affidavits contain long passages of legal argument supported by detailed references to cases, on procedural points a-plenty. 

[5] Regrettably, despite the apparent length and breadth of his self-education in the law for this case, the plaintiff has not yet absorbed the importance of the implied undertaking to the court and to the other parties to proceed expeditiously at a minimum of expense under r 5 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”). 

[6] He filed 17 affidavits approximately 250 pages in text just for his response to these applications. Those affidavits sought to raise numerous complaints about the conduct of the affairs of the first defendant (“the Association”) that are not within the scope of the issues raised by the statement of claim. He submitted that was because he did not know what the grounds of the applications against him were. That made no sense as an explanation for introducing fresh subjects of complaint. I infer, instead, that his aim or strategy was to continue to expand the subjects of dispute to the extent that the court might permit. 

[7] As well, the material relied upon by the plaintiff included many affidavits and documents beyond those specifically filed by the plaintiff in response to these applications. That threatened to make these applications inutile and required the court to wade through a mountain of irrelevant material, just to decide them. 

Background 

[8] The Association is a small not-for-profit association, now with seven members. It was and is funded solely by donations from members of the community and operated by a group of volunteers. It is primarily concerned in the rescue and rehoming of dogs of the Cavalier King Charles Spaniel breed, predominantly in Queensland. Its operations are described on the Association’s Facebook page, its website and pet rescue websites. 

[9] The Association is and was a charity. From the 2012/2013 annual statement lodged by the Association with the Australian Charity and Not-for-Profit Commission, it appears that in 2013 there were approximately 40 volunteers. 

[10] In June and July 2011, the time of the events in question in this proceeding, the Association was regulated by the rules adopted in 2006, in the form of the “Model Rules Version 5” under the Act. They included rules providing for the management committee to terminate a member’s membership if the member conducted himself or herself in a way considered to be injurious or prejudicial to the character or interests of the association, and for a terminated member to appeal the management committee’s decision to a general meeting. 

[11] In May 2018, following the acceptance of a new form of model rules under the Act by the Office of Fair Trading (Qld) in the prior year, the Association adopted new rules in the form of the “Model Rules Version 6”. Rule 5(1) of the new rules limits membership to ordinary members. Rule 5(2) limits the number of members to seven and provides that each member is to hold a position on the management committee. 

Statement of claim 

[12] On 21 July 2011, the management committee at that time comprised the named second to seventh defendants (“the Committee”). The Committee resolved to terminate the plaintiff’s membership of the Association (“21 July 2011 resolution”). That was the event from which this proceeding arises. 

[13] On 27 September 2013, the plaintiff started this proceeding by claim. To date, the claim has been set down for trial twice, only to be adjourned. Now in its ninth year, over events that occurred two years before it started, the proceeding is not set down for a final hearing or trial. The delay is a disgrace to the parties, particularly having regard to the subject matter, as will appear from these reasons. That context makes these applications all the more out-of-the ordinary. A summary judgment application after so long is itself remarkable, almost unheard of. One brought after eight years during which the proceeding was set down for trial on two prior occasions is of Dickensian “Bleak House” character. 

[14] When the claim was started, the defendants were the Association and all six members of its Committee. Like the attrition rate of combatants in the Great War, only one of the former Committee members remains a defendant, being the third defendant, who now applies to stop the proceeding against her. All of the other Committee members have been removed from the proceeding previously. On 12 February 2016, Mullins J gave judgment for the fifth, sixth and seventh defendants. The second and fourth defendants are no longer parties because they died with the controversy yet to be quelled by an exercise of judicial power. 

[15] The fifth amended statement of claim (“statement of claim”) does not conform to the rules of pleading in many ways and contains a large amount of impermissible material. But that does not make it altogether incomprehensible. Some length in these reasons will be saved by a brief summary of the case it alleges for the purpose of analysis of these applications and the parties’ submissions. .... 

[57] The present case is one where the power to grant summary judgement under r 293 of the UCPR in favour of the third defendant should be exercised. The plaintiff has no real prospect of succeeding on all of the claim against her. There is no need for a trial. No factual inquiry at the trial will alter that conclusion as against the third defendant. ... 

[64] The nature of the Association is a small charitable organisation now comprising seven members (apart from the plaintiff’s claim to be a continuing member) with the purpose of fostering and protecting animals of a particular dog breed. It is wholly funded by charitable donations made by members of the public and carries out its activities through the unremunerated voluntary service of its members and other volunteers. 

[65] There was another available method for the plaintiff to resolve the issue of his membership, namely an appeal from the Committee’s decision to terminate his membership to the entire membership of the Association in general meeting under rule 10 of the rules. When the plaintiff started this proceeding more than two years after the 21 July 2011 resolution, the Association offered to permit him to make such an appeal and to waive the time limit for an appeal to enable him to do so. The plaintiff declined, preferring his chances of success in this proceeding. The availability of such an appeal was said in one case to warrant the “view that in general the courts should be a last resort for the determination of club and association disputes. A democratic decision of the members will be the preferred course in most instances”  and that “courts have no wish to intrude into the general conduct and resolution of club disputes.” The Plaintiff submitted in oral argument that it would be unreasonable to use this internal review mechanism because the decision makers on appeal would have been the same people who decided to terminate his membership in the first instance. 

[66] Having regard to the expectation of the QLRC in propounding the drafts of s 72 and s 73 that a case such as this should be conducted in a relatively quick and inexpensive way by an application for an injunction, the costs involved in this proceeding have been inordinate. There are no fewer than 341 filed court documents. On the hearing of this application alone the Association read four of them, being the application and three affidavits. The plaintiff read 43 of them. 

[67] As well as the two aborted trials so far, there have been numerous interlocutory applications, and many directions hearings, no fewer than three appeals to the Court of Appeal so far and one application to the High Court of Australia. 

[68] To date, the plaintiff has been ordered to pay costs of various interlocutory disputes, including an unsuccessful appeal to the Court of Appeal and an unsuccessful application for leave to appeal to the High Court, together exceeding $130,000 on assessment. There are other orders for the plaintiff to pay costs that are not yet assessed and the overall costs of the proceeding are not yet subject to any order or assessment. The costs of any future trial would have to be added to the costs incurred so far. 

[69] If these costs were not the product of unreasonable conduct of any of the parties under s 73(2)(c), they illustrate that when the proceeding was started the prospective costs were such that under s 73(2)(b) it was unreasonable to make the application made by the claim, in preference to the appeal procedure under the Rules. 

[70] But a significant proportion of the costs have been the product of unreasonable conduct. The plaintiff’s pleadings have been the subject of five successful strike out applications. The appeals to the Court of Appeal were unadvisedly made as they were unsuccessful and resulted in an at least one indemnity costs order. 

[71] There was a lapse of time under s 73(2)(b) in starting the claim between 21 July 2011 and 27 September 2013 that was also inordinate and is unexplained on the evidence. 

[72] There is evidence of improper conduct under s 73(2)(c) in that plaintiff has had a purpose in prosecuting the proceeding beyond simply obtaining the relief claimed. On 30 November 2015, evidence of that emerged when the claim first came on for trial, and it was apparent that the plaintiff had not pleaded grounds of invalidity on which he wished to rely that would necessarily adjourn the trial. In that context, this exchange occurred between the Judge and the plaintiff: “HIS HONOUR: ...say... that decision is set aside, what’s that going to achieve from your point of view? It’s a society that have fairly clearly indicated they don’t want you... PLAINTIFF: Maybe that’s why I want to be in their face.” 

[73] That evidence may raise a question of abuse of process by a collateral purpose that may amount to oppression. But it is not necessary to decide a question of that kind in order to decide this application. The court should not do so, as well, because the application was not made on that ground, although the Association relied on that evidence as malice on the part of the plaintiff. 

[74] Overall, when the proceeding was started, it may have been unreasonable to make the application raised by the claim under s 73(2)(b), although I consider that question with caution recognising the possibility that the benefit of hindsight could affect that view. 

[75] Under s 73(2)(a), a relevant factor for the court to refuse to make an order on the claim is that the issue is “trivial”. There is no bright line test for what is trivial. A claim for reinstatement by a wrongly terminated member of an incorporated association would not ordinarily be regarded as trivial. 

[76] But it should not be overlooked that the plaintiff’s claim for pecuniary damages for breach of contract is limited to a particularised amount, at 2011, of about $1,300 per annum. The ordinary pecuniary loss before a claim is brought in this court for damages for breach of contract is in excess of $700,000, because monetary claims for that cause of action below that amount are within the jurisdiction of the District Court of Queensland[59] and below $150,000 within the jurisdiction of the Magistrate’s Court. Claims for damages for breach of contract below those amounts are ordinarily transferred to the appropriate court of monetary jurisdiction to reduce costs. 

[77] A rough pecuniary indicator of the relative triviality of the claim for pecuniary loss also exists in the fact that the plaintiff has been ordered to pay in excess of $130,000 in costs of the interlocutory proceedings to date which is approximately 100 times the claimed annual value of the alleged pecuniary loss at 2011, before interest or inflation are taken into account. 

[78] As well, or alternatively, under s 73(2)(c), the unreasonable conduct of the plaintiff has clearly added to the cost of the proceeding. That is illustrated by the plaintiff’s unsuccessful appeals and unsuccessful application for special leave to appeal, the plaintiff’s abject failure to observe the implied undertaking to the court under r 5 of the UCPR so as to bring the claim to a final decision and the plaintiff’s attempt on the hearing of this application by his many affidavits to introduce a range of additional allegations of complaint about the conduct of the Committee in 2011, beyond those pleaded in the statement of claim.