Infrastructure

'Infrastructuring the Digital Public Sphere' by Julie E Cohen in (2023) 25 Yale Journal of Law & Technology (forthcoming) comments 

The idea of a "public sphere"-- a shared, ideologically neutral domain where ideas and arguments may be shared, encountered, and contested -- serves as a powerful imaginary in legal and policy discourse, informing both assumptions about how public communication works and ideals to which inevitably imperfect realities are compared. In debates about feasible and legally permissible content governance mechanisms for digital platforms, the public sphere ideal has counseled attention to questions of ownership and control rather than to other, arguably more pressing questions about systemic configuration. This essay interrogates such debates through the lens of infrastructure, with particular reference to the ways that digital tracking and advertising infrastructures perform systemic content governance functions. 

Social infrastructure of a different sort in recommendations by the Productivity Commission in its Advancing Prosperity: 5-year Productivity Inquiry report.

The Commission states

Building an adaptable workforce: education 

Reflecting the role of education in creating a high skilled and highly adaptable workforce, broad ranging reforms are proposed across higher education, vocational education and training (VET), schools and lifelong learning. These reforms emphasise stronger foundational learning to support further skills acquisition throughout individuals’ working lives via a broader array of flexible options. 

Higher education reforms aim to create a more dynamic university sector, putting greater emphasis on quality teaching. Loan reforms would expand access to high quality VET, and encourage emerging vocational options that develop broad, adaptive and less occupation specific skills. 

A more coherent approach to lifelong learning and ongoing skill development is based on targeted tax incentives, and the improved availability and recognition of flexible, short form training options.  

Long term improvements in school outcomes are possible through increasing (and judicious) use of learning technology and a stronger link between pedagogical evidence and classroom practice. 

Proposed reforms focus on assisting governments and schools in this journey. 

 Reform directive 1: Improve schools’ capacity to lay the educational foundations for the future workforce 

Recommendation 8.1 Leverage digital technology in schools 

State and Territory Governments should work with schools to extend, improve and embed the use of education technology in order to realise future benefits for students. Initiatives should aim to: • enable teaching practices to evolve with the changing classroom environment by prioritising the development and implementation of digital tools to support teaching and learning, while balancing flexibility for individual jurisdictions’ needs – this could include developing an online assessment tool and giving the Australian Education Research Organisation (AERO) responsibility for researching and vetting effective digital technologies to be implemented in schools • replace manual school administrative processes with technology based and automated solutions where this has not been done already – this could include evaluating technology based solutions for administrative processes currently in place and developing mechanisms to diffuse these to other schools • support continuous commitment to ongoing professional development modules that support teachers in using data analytics to drive student improvement. 

Recommendation 8.2 Make best practice teaching common practice 

State and Territory Governments should facilitate greater classroom access for the Australian Education Research Organisation (AERO) to support more principal and teacher involvement in education research to ensure that evidence based research provides information that is salient and readily applicable by practitioners. Initiatives should focus on: • enabling greater observation of, and feedback on, classroom teaching practices, by supporting more informal teacher networks, and creating or strengthening the existing roles within the local school system for highly accomplished and lead teachers (HALT) to share their in depth knowledge and skills with their colleagues • increasing curriculum implementation support for teachers, by curating high quality, evidence based and government endorsed curriculum resources (curriculum plans, whole subject sequences, lesson plans and classroom tools), to be made available for teachers and school leaders from a single source.   

Reform directive 2: Enable innovative schooling approaches for improved learning outcomes 

Recommendation 8.3 Enable experimentation with alternative approaches to schooling 

State and Territory Governments should be open to experimenting with new, innovative school models or operational changes where there is an evidence base (including overseas) to suggest outcomes could be improved for Australian students. In the first instance, legislative, regulatory, administrative or policy barriers that would prevent individual schools varying their operating model should be removed. In addition, there should be capacity and appropriate resourcing within the local school system to allow the merits of any trials to be evaluated. Innovations should aim to: • offer different lesson delivery options to lift quality teaching and learning, including for example, offering online classes in the absence of a teacher with the relevant expertise in a topic, or trials of untimed syllabus approaches to promote a continuous learning process • better cater to student needs to encourage school attendance and lift student outcomes, including through variations in school hours and use of technology to personalise students’ learning environment. 

Reform directive 3: Grow access to tertiary education 

Recommendation 8.4 Grow access to higher education over time 

The Australian Government should adopt an improved demand driven model for providing Commonwealth supported places to domestic undergraduate university students, subject to measures outlined in other recommendations that: contain fiscal costs (recommendation 8.5); and ensure all students are adequately supported (recommendations 8.13 and 8.14).   

Recommendation 8.5 Better targeting of investment in higher education 

The Australian Government should introduce a new university funding model to better target investment while facilitating wider access to higher education. • Total university funding per student by field of study (comprising the student contribution and government contribution) should continue to be the cost of delivery for that field (reflecting a median estimate of efficient costs with the methodology to be refined over time as outlined in recommendation 8.6). • The student contribution should be set based on average expected earnings for each field of study, with students with a greater capacity to repay incurring more debt. Student contributions should be higher, on average, to recoup a greater share of the costs of university from those who benefit from attending university, rather than recouping this from the broader tax base. This would also help to fund the return to a demand driven system. • The government contribution should make up the gap between the student contribution and estimated cost of delivery for each field of study. 

Recommendation 8.6 Improve price setting in tertiary education 

The Australian Government should conduct regular costing exercises to estimate the cost of delivering tertiary teaching and research. The methodology underpinning these cost exercises should be periodically reviewed and refined to inform more accurate cost estimates, and should aim to ultimately reflect only efficient costs. These cost estimates should inform funding as well as price and loan caps, to encourage efficient delivery of quality education and research by tertiary institutions. 

Recommendation 8.7 Expand loan eligibility to more students 

The Australian Government, in consultation with State and Territory governments, should gradually expand VET Student Loan eligibility. • Access should expand to more Diploma and Advanced Diploma level courses. Instead of current criteria, all courses should be eligible except those that are primarily taken for leisure or have demonstrated poor labour market outcomes. This expansion should be evaluated after a suitable period, including observed effects of the earlier expansion on student participation, course decisions and employment outcomes; and any evidence of rorting by providers. Following this evaluation, and addressing any implementation issues, eligibility should also be considered for Certificate IV and Certificate III courses. • Loan fee arrangements should also be equalised across the tertiary sector, levied on all students regardless of type (that is, extended from fee for service VET students and non university higher education students to include subsidised VET students and university students). The loan fee rate should also be lowered reflecting application to a broader base of students. 

Reform directive 4: Support a culture of lifelong learning for an agile workforce 

Recommendation 8.8 Consolidate support for lifelong learning 

The Australian Government should consolidate and examine the effectiveness and accessibility of available programs to support lifelong learning and to reduce gaps and increase uptake. In doing so, it should evaluate the effectiveness of targeted programs to inform and prioritise policies for a consolidated lifelong learning strategy by: • trialling policies that target support at employed lower income people, including vouchers for career planning and work related upskilling and reskilling • evaluating the incoming Skills and Training Boost to assess its effects on the uptake of additional overall training, the skills it develops, productivity, labour mobility, and the characteristics of the businesses most responsive to the measure. Government linked administrative datasets will be useful for such an evaluation but might need to be supplemented • extending the existing capacity for self education deductions to education that is likely to lead to additional income outside of the employee’s existing employment. This change should be evaluated after a suitable period, and pursued subject to assurance that strong integrity measures can effectively reduce the risks of fraudulent claims • examining the effectiveness of training programs delivered to people who are unemployed and those transitioning to work such as Employability Skills Training programs, particularly for people later in life. Government should also increase the accessibility, flexibility, and coherence of available pathways by: • extending income contingent loans to more VET courses (recommendation 8.7) • providing alternative exit opportunities through the provision of nested qualifications (recommendation 8.13) • requiring publicly funded universities to make their lecture materials available online, with consideration of extending this to some aspects of government funded VET where that is practically feasible (recommendation 8.9) • ensuring that the Australian Government’s Microcred Seeker extend beyond courses supplied by TEQSA recognised providers to the VET sector and where possible, to other private and well recognised domestic and international course offerings • constraining regulations that make acquiring new skills and moving to new occupations overly onerous. Most particularly, through regular review of occupational licensing policies and addressing issues in scope of practice (reform directive 10).   

Reform directive 5: Increase tertiary education teaching quality to underpin a well trained workforce 

Recommendation 8.9 Leverage information to improve quality 

The Australian Government should: • increase the transparency of teaching performance by requiring universities to provide all lectures online and for free • refine and validate new Quality Indicators for Learning and Teaching (QILT), and use these and other data to develop and publish more meaningful indicators of tertiary teaching quality and performance • adapt the ComparED tool to address the risk that students may misunderstand its information and consider the option of abandoning it and providing additional QILT data to non government funded websites that cover many other aspects of higher education providers relevant to student choice • give the Tertiary Education Quality and Standards Agency (TEQSA) the responsibility to undertake external university teaching quality assurance review processes akin to those applied by the Quality Assurance Agency (Scotland). 

Recommendation 8.10 Professionalise the teaching role 

The Australian Government should bolster the incentives for, and prestige of, higher education teaching by: • facilitating trials of additional funding for undertaking research and teaching development provided to individual staff based on their teaching performance, drawing on the Griffith Business School’s Teaching Excellence Recognition Scheme (TERS) • trialling a modest Australian Research Council Grant that provides funding for teaching focused research for 6 months to a year • enhancing preparation for higher education teaching, informed by the evidence collected by initiatives outlined in recommendations 8.9 and 8.11. 

Recommendation 8.11 Develop an Australian evidence base 

The Australian Government should extend the role of the Australian Education Research Organisation (AERO) to the collection and dissemination of evidence on best practice post school teaching, covering both VET and higher education. As part of this new role, AERO should also: • draw on the lessons from the teaching practices of awardees of the Australian Government’s Australian Awards for University Teaching • undertake a rapid review of the use of formative and summative review processes and professional development initiatives in higher education institutions. 

Recommendation 8.12 Favour light handed and simple incentives over performance based funding 

The Australian Government should: • put on hold the scheduled commencement of performance based funding of universities in 2024 and only reinstitute if its risks are better managed and if other approaches to improving the performance of universities have proved ineffective • explore the option of financial rewards to higher education providers that AERO identifies as having made successful efforts to improve and use formative assessment tools and professional development (drawing on recommendation 8.11). 

Reform directive 6: Better and more flexible matching between students and work opportunities 

Recommendation 8.13 Expand alternative exit opportunities through the provision of nested qualifications 

The Australian Government should require that for any given undergraduate degree, Australian higher education providers create at least one subset of courses that, if completed, lead to a lower level qualification for students who decide to withdraw before completing the whole degree (‘a nested qualification’). The Australian Government should leave the design, requirements, and timing of the nested qualification/s to providers’ discretion, with the exception that any qualification would need to meet the relevant Tertiary Education Quality and Standards Agency (TEQSA) standards and monitoring requirements. 

Recommendation 8.14 Give students support to complete and clarity to exit 

The Australian Government should amend the Higher Education Support Act 2003 (Cth) (HESA) to support completion where desirable and facilitate early exits where necessary. It should do this by: • providing grants to encourage higher education providers to experiment with and share new strategies for student retention • assessing any individual grant for its effectiveness and lessons in post implementation reviews and evaluating the higher education grant program as a whole after six years to determine whether rounds of funding under the grant have contributed to a demonstrable improvement in student completion rates • amending the ‘census date’ in the HESA to the ‘payment date’ and requiring that universities effectively communicate to students that the payment date is the time when they can exit without having to pay fees for any initially commenced course.

Hart

'The Rule of Law: “A” Relation Between Law and Morals' by Alani Golanski in (2022) 42(2) Northern Illinois University Law Review comments 

H. L. A. Hart begins chapter nine of The Concept of Law by saying that “[t]here are many different types of relation between law and morals and there is nothing which can be profitably singled out for study as the relation between them.”1 He allows that conventional and social group morality, as well as a more rigorously practiced and “enlightened” moral criticism, have both “profoundly influenced” the development of law. Most saliently, legal systems, but also institutions generally, will as a “natural necessity” incorporate a “minimum content of [n]atural [l]aw” in service of the human propensity toward survival. 

This minimum content of natural law includes certain substantive prohibitions. Human beings are vulnerable creatures, of bounded capabilities as well as limited altruism. All are tempted, at least sometimes, to pursue their own immediate interests at the expense of others’ welfare. This is “one of the natural facts which makes the step from merely moral to organized, legal forms of control a necessary one.” So law, like morality, will ordinarily proscribe such offenses as murder or unprovoked assault aimed at appropriating one’s neighbor’s assets. Given the “standing danger” that there are always some who will try to exploit and overcome merely moral constraints, “what reason demands is voluntary cooperation in a coercive system.” 

These sorts of considerations that draw moral values into a relation with law do not warrant the different conclusion that conformity with morality provides a necessary criterion of the existence or validity of law. Rejection of that conclusion is one of Hart’s main legal positivist premises, his “separation thesis.” Nor can there be a necessary correlation, for Hart, between legal rules and natural-law theory’s ample moral standards, because “the purposes men have for living in society are too conflicting and varying to make possible much extension of the argument” that the legal system’s content necessarily encompasses more than natural law’s minimum content. 

Yet, for Hart, the factors that warrant an acknowledgment that legal systems generally must incorporate a minimum content of natural law spill over into his understanding of what he terms “legality.” This concept implicates the manner in which laws come into existence, as well as characteristics of the laws requisite to any legal system’s abilities to effectuate social control. The central claim is that, if the legal system is to fulfill its social control function, and by close analogy abide by legality, the system’s outputs will have to abide by certain formal requirements that bring enacted rules “within the capacity of most to obey.” Hence, the legal rules will have to satisfy certain conditions, such as being intelligible and typically not retrospective. 

The notion of legality is intimately related to, and often taken to be synonymous with, the idea of the rule of law. Hart’s project conduced him toward minimizing the perception of any necessary connection between law and morals, and his minimal expression of legality has influenced slim and formal conceptions of the rule of law ideal itself. This is how Jeremy Waldron put it:

I think Hart was inclined to see a preoccupation with legality and the rule of law as a source of confusion in jurisprudence; often one gets the impression that Hart thought that if anyone offered to talk about it, the responsible thing to do was to say something palliative and then shut down the discussion as quickly and firmly as possible. Principles of legality, Hart implied, may be among the principles we should use for the evaluation of law, but their study is not part of the philosophical discipline that tries to tell us what law essentially is.

That is fair enough. But the impulse criticized by Waldron to sever the focus on the concept of law from an evaluation of law and legal systems should not precondition the criteria by which legal institutional action is evaluated. Limiting the rule of law evaluation to an appraisal of whether the system abides by a few, sharply delimited formal conditions is likely in inevitable tension with the general impulse to evaluate law’s workings more deeply. This does not mean that just any sort of evaluation of the legal system counts as a rule of law assessment. Nor, however, does a robust concept of the rule of law as an exercise in political morality impair a “hard” legal positivist concept of law that emphatically excludes moral criteria from the identification of the existence or content of valid, positive laws.

The interrelated questions asked in this Article are: (1) whether the concept of the rule of law is well served by a delimited focus on whether the legal system promulgates laws capable of being obeyed; (2) whether a morally richer view of the rule of law fits the concept’s use and formulation; and (3) whether, even if extending beyond traditional formulations, a rule of law inquiry broader than Hart’s capacity-to-obey test should be seen as conceptual overreach? The answers argued for here aspire toward both releasing the rule of law construct from its formal-equality fetters and accentuating the construct’s potential for improving the moral landscape endured by those for whom legal arrangements reinforce impairment of their capabilities to exercise powers that the legal system otherwise confers or encourages.

AI, Patent Reading and Patent Disclosure

'Misleading AI: Regulatory Strategies for Transparency in Information Intermediary Tools for Consumer Decision-Making' by Jeannie Marie Paterson in (2023) Loyola Consumer Law Review comments

Increasingly, consumers’ decisions about what to buy are mediated through digital tools promoted as using “AI”, “data” or “algorithms” to assist consumers in making decisions. These kinds of digital information intermediaries include such diverse technologies as recommender systems, comparison sites, virtual voice assistants, and chatbots. They are promoted as effective and efficient ways of assisting consumers making decisions in the face of otherwise insurmountable volumes of information. But such tools also hold the potential to mislead consumers, amongst other possible harms, including about their capacity, efficacy, and identity. Most consumer protection regimes contain broad and flexible prohibitions on misleading conduct that are, in principle, fit to tackle the harms of misleading AI in consumer tools. This article argues that, in practice, the challenge may lie in establishing that a contravention has occurred at all. The key characteristics that define AI informed consumer decision-making support tools ––opacity, adaptivity, scale, and personalization –– may make contraventions of the law hard to detect. The paper considers whether insights from proposed frameworks for ethical or responsible AI, which emphasise the value of transparency and explanations in data driven models, may be useful in supplementing consumer protection law in responding to concerns of misleading AI, as well as the role of regulators in making transparency initiatives effective.

'Linguistic metrics for patent disclosure: Evidence from university versus corporate patents' by Nancy Kong, Uwe Dulleck, Adam B Jaffe, Shupeng Sun and Sowmya Vajjala in (2023) 52(2) Research Policy comments 

 Encouraging disclosure is important for the patent system, yet the technical information in patent applications is often inadequate. We use algorithms from computational linguistics to quantify the effectiveness of disclosure in patent applications. Relying on the expectation that universities have more ability and incentive to disclose their inventions than corporations, we analyze 64 linguistic measures of patent applications, and show that university patents are more readable by 0.4 SD of a synthetic measure of readability. Results are robust to controlling for non-disclosure-related invention heterogeneity. The linguistic metrics are evaluated by a panel of “expert” student engineers and further examined by USPTO 112(a) – lack of disclosure – rejection. The ability to quantify disclosure opens new research paths and potentially facilitates improvement of disclosure. ... 

The patent system serves two purposes: “encouraging new inventions” and “adding knowledge to the public domain”. The former incentivizes creation, development, and commercialization by protecting inventors’ exclusive ownership for a limited period of time. The latter encourages disclosure of new technologies by requiring “full, clear, concise, and exact terms” in describing inventions.2 Sufficient disclosure in patents has three major benefits: (1) fostering later inventions (Jaffe and Trajtenberg, 2002, Scotchmer and Green, 1990, Denicolò and Franzoni, 2003); (2) reducing resources wasted on duplicate inventions (Hegde et al., 2022); and (3) inducing more informed investment in innovation (Roin, 2005). 

Despite a large body of literature on the patent incentivizing function (Cornelli and Schankerman, 1999, Kitch, 1977, Tauman and Weng, 2012, Cohen et al., 2002), patent disclosure receives limited attention. This raises concerns; as Roin (2005), Devlin (2009), Sampat (2018), Arinas (2012) and Ouellette (2011) document, the technical information contained in patent documents is often inadequate and unclear. Important questions, such as how to measure disclosure, potential incentives behind disclosure, heterogeneous levels of disclosure by entities, and the tactic of avoiding the disclosure requirement, have not been directly investigated. A major barrier to such empirical research has been the lack of broadly applicable, reproducible quantitative measures of the extent of disclosure or information accessibility. We propose and demonstrate that extant metrics developed in computational linguistics can help to fill this gap. 

In using computational linguistic metrics to compare the readability of documents, we follow researchers in the finance and accounting literature, who have used readability metrics to gauge whether readers are able to extract information efficiently from financial reports (Li, 2008, Miller, 2010, You and Zhang, 2009, Lawrence, 2013). This literature posits that more complex texts increase the information processing cost for investors (Grossman and Stiglitz, 1980, Bloomfield, 2002) and finds, for example, that companies are likely to hide negative performance in complicated text to obfuscate that information (You and Zhang, 2009). 

Although patent applications differ from corporate annual reports, the research question regarding strategic obfuscation is similar: Documents are created subject to regulation, in which the purpose of the regulation is to compel disclosure, but the party completing the document may have incentives to obscure information. Our proposed linguistic measures are likely to serve as an informative proxy for the explicitly or implicitly chosen level of disclosure. The goal of this article is simply to demonstrate that these measures do appear to capture meaningful differences in accessibility or disclosure, and thereby opening up the possibility of research on the causes and effects of variations in disclosure. 

Our strategy for demonstrating the relevance of linguistic readability metrics is to identify a situation in which we have a strong a priori expectation of a systematic difference in disclosure across two groups of patents. If the proposed metrics show the expected difference, we see this as an indication to treat them as potentially useful. We compare patent applications from universities with those of corporations. Both strategic reasons and the costs of revealing information inform our expectations. From a strategic perspective, universities, with their focus on licensing of patents have an interest in making their patents more accessible. In contrast, corporations (particularly practicing corporations) may benefit from limiting the accessibility of information. From a cost perspective, drafting patents is usually informed by documentation of the relevant research or process of innovation. Given university researchers’ primary interest in accessible publications and the relevant standards of documentation, the source material available to an attorney drafting a patent may be much better than in the case of the same attorney drafting a patent for a corporation, in which the need for such documentation is much less. The literature also supports this expectation (Trajtenberg et al., 1997, Henderson et al., 1998, Cockburn et al., 2002). 

Universities and corporations follow different business models for patenting: technology transfer versus in-house commercialization. Patents applied for by universities, with a focus on generating income from the licensing of inventions, should have a higher level of disclosure because transparent information makes it easier to signal the technology contained in the patent and attract potential investors. As a result, they are more readable than corporate patents. The readability difference could be further magnified by the moral requirements of university research as well as the rigor of academic writing, which could further affect the level of disclosure. 

Corporations, particularly those with a focus on in-house production, on the other hand, have a greater incentive to obfuscate crucial technical information to deter competitors from understanding, using, and building on their inventions. The profit-maximizing motive, as well as a lack of incentive to thoroughly document the invention, could also contribute to the low level of disclosure. Together, it is reasonable to assume that universities may strategically (or unconsciously) choose a higher disclosure level in patent applications than corporations. We emphasize that we do not see this analysis as testing the hypothesis that universities engage in more disclosure than corporations for a particular reason. Rather, we take this as a maintained hypothesis and show – conditional on that maintained hypothesis – that the linguistic measures meaningfully capture differences in disclosure across patents, which indicates the value of further research and the need to reconsider patent examination with respect to the accessibility and disclosure of information contained in patents. 

Similar to the finance literature, we use a computational linguistic program designed to assess the reading difficulty of texts using 64 measures from second language acquisition research. The indicators cover the lexical, syntactic, and discourse aspects of language along with traditional readability formulae. We apply them to a full set of U.S. patent application texts in three cutting-edge industries from the past 20 years. Our baseline OLS estimations reveal significant differences between university and corporate patents. Using principal component analysis (PCA) to combine the 64 indicators and create synthetic readability measures, we show that composite indices detect strong differences between university and corporate patents, which lends support to the validity of our measures. 

The key empirical challenge is that the nature of corporate and university inventions might differ; thus, the textual communication required for corporate inventions could differ. To address this concern, our identification strategy employs the following. First, to account for the unobserved heterogeneity in linguistic characteristics intrinsic to technical fields, our econometric method controls for U.S. patent subclass fixed effects. This enables us to measure disclosure as the degree of readability relative to other technologically similar patents. Second, we use patent attorney fixed effects to control for systematic disclosure effects from the drafting agents. This compares the university and corporate patents drafted by the same patent attorney. Third, we employ cited-patent fixed effects with a data compression technique, least absolute shrinkage and selection operator (LASSO), to further control for the nature of inventions. This is because university and corporate patents that cite the same previous patents build on the same prior knowledge, and are therefore likely to be technologically similar inventions. Fourth, to deal with any selection bias from observables, we use a doubly robust estimation that combines propensity score matching and regression adjustment. This enables us to compare university and corporate patents with similar attributes. 

Our results show that corporate patents are 0.4 SD more difficult to read and require 1.1–1.6 years more education to comprehend than university patents. We find that the difference is more prominent for more experienced patent applicants, and that licensing corporate patents disclose more than other corporate patents, which we believe supports the idea that the differences in readability are at least somewhat intentional. We also show that a potential channel for obfuscation lies in the provision of many examples in order to conceal the “best mode” of inventions. 

This paper is one of the first to specifically use textual analysis to examine patent disclosure (with exception of Dyer et al. (2020) who focus on patent examiners’ leniency) and validate the measure. We obtain the whole set of full text patent applications in categories related to nanotechnology, batteries, and electricity from 2000 to 2019, totaling 40,949, and apply our linguistic analysis model to the technical descriptions of these patents. We expand readability studies in related literature that rely heavily on traditional readability indices such as Gunning Fog, Kincaid, and Flesch Reading Ease by including lexical richness, syntactic complexity, and discourse features. We use the best non-commercial readability software (Vajjala and Meurers, 2014b) to capture the multidimensional linguistic features of 64 indicators, and perform a more in-depth linguistic analysis (Loughran and McDonald, 2016) than previous studies. We also use principal components analysis to construct synthetic overall measures of readability. 

Having developed this rich set of readability measures, we validate them as indicators of effective patent disclosure by testing whether the lexical measures show patents to be more readable in several real-world contexts. Our primary comparison is between university and corporate patents. The licensing aims of universities and absence of market driven competitive motives mean that they have greater incentive to disclose – less incentive to conceal – key information relative to corporations. Through analyses that control for sources of variation in readability, we find that university patents are, indeed, more readable. We support this main analysis with several other comparisons. Intellectual Ventures – a corporation that, akin to universities, seeks to license its patents over competing in the market – also holds patents with above average readability. Several large corporations known to be active patent licensors (IBM, Qualcomm, and HP) similarly exhibit higher readability. Additionally, a set of patents that can be presumed to have been reassigned also exhibit higher readability than otherwise similar patents. Finally, we compared the computational readability measures to subjective evaluations of readability and disclosure for a small number of patents, and assessed the readability of patents rejected by the USPTO for reasons that include failure to adequately disclose the technology. 

We see the role of this paper as analogous to Trajtenberg et al. (1997), who first introduced metrics of patent “importance”, “generality” and “originality” based on patent citation data. We imitate their strategy to test whether our proposed new measures reveal the contrast we expect between university and corporate patents, and argue that the finding – that they display the predicted pattern – can be taken as initial evidence that they capture meaningful variation in unobservable patent disclosure quality. The introduction and initial validation of these measures open up the possibility of quantitative treatment of extent of disclosure in patents, both for social science research on the sources and effects of better or worse disclosure, and potentially for use in more systematic treatment of the disclosure obligation in the patent examination process. 

The rest of the paper proceeds as follows. Section 3 explains the linguistic measures used in the study. In Section 2, we review the relevant literature and lay out our hypothesis of differences in disclosure between university and corporate patent applications. Section 4 presents our data and baseline estimation, followed by our main results in Section 5. We examine attorney fixed effects and cited-patent fixed effects in Section 6, and one channel that corporations could use to obscure patent applications in Section 7. We show heterogeneous effects in Section 8 and usefulness tests in Section 9, and conclude in Section 10.

Ecocentrism

'Implementing Rights of Nature: An EU Natureship to Address Anthropocentrism in Environmental Law' by Niels Hoek, Ivar Kaststeen, Silke van Gils, Eline Janssen, and Marit van Gils in (2023) 19(1) Utrecht Law Review 72–86 comments 

Transboundary issues – from (chemical) pollution, land-use change to unsustainable levels of exploitation – have been eroding natural sites across Europe, reducing biodiversity in the process. In light of this, this paper analyses the comprehensiveness of EU environmental law, appraising its underlying ethos in the process. Additionally, it explores whether a Natureship Framework Directive at the European Union (EU) level, which establishes legal personality for natural sites, can deliver a ‘change of course’ with respect to the anthropocentric view underpinning environmental law as a pressing thought experiment. It constructs a (fictive) law which grants natural sites substantive and procedural rights, conceptualising how such an instrument may take shape. One finding is that an EU Natureship may be a robust tool to address flaws within EU environmental law. For example, the attribution of legal personality to natural sites alongside the appointment of formal representatives can significantly relieve the burden for NGOs and the European Commission, which may suffer from limited resources when it comes to judicial enforcement of environmental norms (or, alternatively, ecological rights). Other benefits pertain to nature management, which may be less complex and more politically stable under the approach put forward in this paper. An EU Natureship, therefore, may provide a vehicle to shift EU environmental law from the anthropocentric to the ecocentric.

The authors consider 'Rights of Nature (RoN) as a response to failing protection', stating 

The degradation of natural ecosystems continues, as confirmed by the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES), despite the adoption of a wide degree of national, regional, and international nature conservation instruments. Against this backdrop of continuing ecological decay, new forms of protection have been proposed by international lawyers, NGOs, and academics, which challenge existing environmental laws. One such regulatory approach is the assignment of legal personhood to natural sites, which directly grants standing in court and, perhaps more pressingly, confers substantive and procedural rights to said natural sites. In a general sense, the rights of nature movement mirrors how the law confers rights (but not obligations) to individuals, companies, or institutions. This controversial yet much-cited idea was first put forward by Christopher Stone in 1972. Fundamentally, it represents a shift from a view of nature as an object before the law to a view of nature as a subject of the law. This movement has gained prominence, given the pressures which natural ecosystems face. A practical case of ecological decline can be found in the Dutch, German and Danish Wadden Sea, where climate change, pollution, and large-scale mining activities are causing irreversible damage to the natural site, with modern-day legal instruments seemingly unable to halt this decline. For example, in 2022, a permit for mining was issued in the Netherlands, approving the further exploitation of the Wadden Sea, despite a backlash from a plethora of NGOs and local residents. 

In light of these pressures, the case for assigning legal personhood to the Wadden Sea was made by Lambooy and others in 2019. In their article, the authors argued in favour of adopting legal personhood for the Dutch part of the Wadden Sea. In this context, they put forward the idea of a ‘Natureship’. Linguistically speaking, a Natureship places the focus on the underlying entity, namely, the natural site. The suffix -ship implies a position held and/or created, a grammatical feature common in both Dutch and English. Their article defines a Natureship as a ‘public law person’ that combines the power of a public institution, such as environmental management, with private powers, such as the ability to own assets or claim reparations. The statutory purpose of the Natureship would be to ‘protect and support the ecological coherence’ of a specified geographical area, with significant independence from external governmental interference. Lambooy and others argue that, under Dutch law, legal personhood can be granted to natural sites in this form. Here lies the relevance of this contribution: the concept of a Natureship implements the Rights of Nature movement in practical terms. The idea has received traction in the Netherlands, where the ‘rights for the Wadden Sea’ has been transformed from a foreign concept into an issue seriously contemplated within the national Parliament. 

However, while this paper by Lambooy and others is a highly valuable contribution to legal scholarship, it does not take into account the transboundary nature of most ecosystems. The Wadden Sea, for example, spans three different EU Member States, namely, the Netherlands, Germany, and Denmark. Biodiversity does not inherently subscribe to the idea of human-made borders; thus, a Natureship grounded in EU law is a proposition that needs further exploration. An EU approach may tackle transboundary issues more effectively than a purely national one since the latter cannot reach the desired spatial scope nor guarantee uniform protection throughout all the concerned Member States. This paper will explore the merits of an EU approach to Natureships by engaging in a thought experiment, conceptualising how such an instrument may take shape at the EU level. It refers to the German, Dutch and Danish Wadden Sea as an example to reflect on the potential merits of this approach, when needed. 

Overall, this will inform the question of whether an EU Natureship law may act as a ‘remedy’ for anthropocentrism within EU environmental law. As an ethos underpinning the law, anthropocentrism takes a human-centred approach to legislation. This is the antithesis of an EU Natureship. In contrast, an ecocentric ethos subscribes intrinsic value to nature as a collective. An ecocentric law, as such, provides a holistic perspective towards environmental protection, including non-human interests within the scope of consideration. An EU Natureship, in essence, is a proposition aimed to achieve such holistic protection. 

This paper hosts several methodologies to unpack the research statement as outlined above. The primary method deployed consists of doctrinal research, initially taking an ‘internal’ perspective of the legal system. However, from the normative premise that the law may be failing the environment, a critical analysis will be undertaken, exploring the possible routes ahead in order to close the perceived gap between law and ecology. This article will highlight anthropocentrism within modern-day EU environmental law in Section 2.1 and 2.2, thus analysing its failures. In the following Sections 3.1, 3.2 3.3 and 3.4, the concept of an EU Natureship is set out as a thought experiment, taking the Wadden Sea wetland as an example. In doing so, concrete provisions are suggested in the context of a (fictive) EU Natureship Regulation and/or Framework Directive. The paper ends with a brief conclusion, in Section 4, on the merits of such an EU-wide approach. It should be noted that this paper does not review international obligations derived from the Ramsar Convention, the UNESCO World Heritage Convention, or the Convention on Biological Diversity. Whilst international instruments are essential components of the legal framework that governs wetland protection, given the EU-specific proposition being put forward, the scope of this paper will primarily be limited to the supranational.

FDA

'The Fall of FDA Review' by Daniel G. Aaron in (2023) Yale Journal of Health Policy, Law, and Ethics comments 

The U.S. Food and Drug Administration is in crisis. Contaminated baby formula is only the latest of a series of scandals that have catapulted FDA into the public spotlight. FDA can hardly go a single day without an investigation, news scoop, or scholarly critique of the agency’s work. FDA regulates 25% of the U.S. economy, yet the array of problems facing the agency raises questions about whether it is equipped to succeed in the 21st century. 

FDA’s core function is to oversee a special legal regime called “premarket review.” Congress has prohibited all marketing of certain types of products (like drugs) until FDA reviews and approves an application from the manufacturer. This system allows consumers to depend on the foods they ingest, the pills they swallow, the health care they receive—in theory. But critics have documented how FDA review failures have produced, or contributed to, public health crises, including those related to opioids, e-cigarettes, trans fats, sugar, and, most recently, the COVID-19 pandemic. U.S. life expectancy fell by 2 years between 2018 and 2020, in part due to FDA-regulated products. What can explain this extreme abdication of regulatory authority that is leaving the American public unsafe and unprotected? 

Until now, the siloed nature of FDA law has prevented a meaningful analysis of premarket review as a legal regime. This article offers the first cross-disciplinary critique of premarket review across five FDA product areas. Leveraging regulatory history, medical science, epidemiology, and law, I argue that premarket review is faltering and aim to explain why. The reasons vary somewhat across FDA’s regulatory regimes. However, the bottom line is the same: Longstanding efforts to undermine FDA governance by corporations and financial power writ large. Corporate deregulatory efforts have operated through courts, Congress, the President, and the agency’s leadership itself. In some cases, premarket review has been so hollowed out that all that remains is the illusion of regulation, nothing more. These developments reflect the ascendancy of neoliberalism, a system in which core social guarantees devolve to decisions by individual consumers. 

We need not accept this state of affairs. Learning from the mechanisms behind premarket review’s erosion, I propose a suite of structural solutions to build a revitalized FDA: one that is dutifully empowered, inside and out, to safeguard the public health.

Biometrics

'Suspect AI: Vibraimage, Emotion Recognition Technology and Algorithmic Opacity' by James Wright in (2021) Science, Technology and Society comments 

 Vibraimage is a digital system that quantifies a subject’s mental and emotional state by analysing video footage of the movements of their head. Vibraimage is used by police, nuclear power station operators, airport security and psychiatrists in Russia, China, Japan and South Korea, and has been deployed at two Olympic Games, a FIFA World Cup and a G7 Summit. Yet there is no reliable empirical evidence for its efficacy; indeed, many claims made about its effects seem unprovable. What exactly does vibraimage measure and how has it acquired the power to penetrate the highest profile and most sensitive security infrastructure across Russia and Asia? xx I first trace the development of the emotion recognition industry, before examining attempts by vibraimage’s developers and affiliates scientifically to legitimate the technology, concluding that the disciplining power and corporate value of vibraimage are generated through its very opacity, in contrast to increasing demands across the social sciences for transparency. I propose the term ‘suspect artificial intelligence (AI)’ to describe the growing number of systems like vibraimage that algorithmically classify suspects/non-suspects, yet are themselves deeply suspect. Popularising this term may help resist such technologies’ reductivist approaches to ‘reading’—and exerting authority over—emotion, intentionality and agency.

Wright states 

As I sat in the meeting room of a nondescript office building in Tokyo, the managing director of a company called ELSYS Japan discussed my emotional and psychological state, referring to a series of charts and tables displayed on a large screen at the front of the room: Aggression … 20-50 is the normal range, but you scored 52.4 … this is a bit too high. Probably you yourself didn’t know this, but you’re a very aggressive person, potentially… Next is stress. Your stress is 29.2, within the range of 20-40, with a statistical deviation of 14—that’s OK… I think you have very good stress… Just tension—your [average] value is within the range, but because your statistical deviation is high—over 20—so you’re a little tense. Mental balance is 64 from a range of 50-100, so it fits correctly in the range… Charm … 74.6 is pretty good. Now, neuroticism is 35.3, this is also in the range, but the statistical deviation is high. But some people have a high score the first time they are measured. There are people who have high scores for neuroticism as well as for tension, yes. People who possess a delicate heart.1 (Interview, 17 April 2019) xx The director’s seemingly authoritative statements were based on an assessment of various measurements produced by ‘vibraimage’, a patented2 system developed to quantify a subject’s mental and emotional state through an automated analysis of video footage of the physical movements of their face and head. This system, distributed in Japan by ELSYS Japan under the brands ‘Mental Checker’ and ‘Defender-X’, provides numerical values for levels of aggression, tension, balance, energy, inhibition, stress, suspiciousness,3 charm, self-regulation, neuroticism, extroversion and stability, categorising these automatically into positive and negative ‘emotions’. Mental Checker generates an impressive array of statistical data arranged across tables, pie chart, histogram and line chart, producing an image of mathematical precision and solid scientific legitimacy (see Figure 1). The report also provides a visualisation of what ELSYS Japan terms an ‘aura’—a horizontal colour-coded bar chart, indicating the frequency of micro-vibrations of a subject’s head, superimposed against a still image of their face. 

Vibraimage technology has already entered the global security marketplace. It was deployed at the 2014 Sochi Olympics (Herszenhorn, 2014), 2018 PyeongChang Winter Olympics, 2018 FIFA World Cup in Russia and at major Russian airports to detect suspect individuals among crowds (JETRO, 2019). It has been used at the Russian State Atomic Energy Corporation in experiments to monitor the professionalism of workers handling and disposing of spent nuclear fuel and radioactive waste (Bobrov et al., 2019; Shchelkanova et al., 2019), and to diagnose their psychosomatic illnesses (Novikova et al., 2019). In Japan, Mental Checker and Defender-X have been used by one of the largest technology and electronics companies, NEC,4 to vet staff at nuclear power stations and by a leading security services firm, ALSOK, to detect and potentially deny entry to or detain suspicious individuals at major events, including the G7 Summit in 2016, as well as sporting events and theme parks (Interview with ELSYS Japan, 17 April 2019). Managers at ELSYS Japan expected that the technology would be used at the 2020 Tokyo Olympics (Nonaka 2018, p. 148, Interview with ELSYS Japan, 17 April 2019), an event that spurred significant increased spending on domestic security services and infrastructure, with estimated market growth of 18% between 2016 and 2019 (Teraoka, 2018).5 ELSYS Japan’s customers also include Fujitsu and Toshiba, which have considered ‘incorporat[ing] [vibraimage]… into their own recognition technologies to differentiate their original products’ (Nonaka, 2018, p. 147), and managers told me that Mental Checker has been used by an unspecified number of Japanese psychiatrists to confirm diagnoses of depression. 

In South Korea, the Korean National Police Agency, Seoul Metropolitan Policy Agency and several universities have collaborated on research aiming to establish the use of vibraimage in a video-based ‘contactless’ lie-detection system as an alternative to polygraph testing (Lee & Choi, 2018; Lee et al., 2018), while, in China, it has been deployed in Inner Mongolia, Zhejiang and elsewhere to identify suspects for questioning and detention, and has been officially certified for use by Chinese police (Choi et al., 2018a, 2018b).6 Other corporate applications of vibraimage are also proposed: an ELSYS Japan brochure suggests using Mental Checker to discover how employees really feel about their company; measure their levels of stress, fatigue and ‘potential ability’; counter employees’ accusations of bullying and abuses of power in the workplace; and even ‘to know the risk of hiring persons who might commit a crime’ (ELSYS Japan Brochure, undated). The brochure provides a screenshot of a suggested employee report, with grades (A+, B−, C, etc.) for qualities that include stability, fulfilment and happiness, social skills, teamwork, communication, ability to take action, aggressiveness, stress tolerance and ability to ‘recognise reality’. 

Vibraimage forms one part of the rapid growth in algorithmic security, surveillance, predictive policing and smart city infrastructure across urban East Asia, enabling the ‘active sorting, identification, prioritization and tracking of bodies, behaviours and characteristics of subject populations on a continuous, real-time basis’ (Graham & Wood, 2003, p. 228). Amid an international boom in both surveillance technologies and artificial intelligence (AI) systems designed to extract maximal information from digital photographic and video data relating to the body, companies are developing algorithms that move beyond facial recognition intended to identify individuals and increasingly aim to analyse their behaviour and emotional states (AI Now Institute, 2018, pp. 50–52). The digital emotion recognition industry was worth up to US$12 billion in 2018, and it continues to grow rapidly (AI Now Institute, 2018). 

As the concepts of algorithmic regulation and governance (Goldstein et al., 2013; Introna, 2016) are increasingly becoming a reality, transparency has become a key theme in critiques of black-boxed algorithms and AI, including those used in emotion recognition. This is particularly the case with machine learning, in which algorithms recursively adjust themselves and can quickly become inexplicable even to data science experts. As Maclure puts it, ‘we are delegating tasks and decisions that directly affect the rights, opportunities and wellbeing of humans to opaque systems which cannot explain and justify their outcomes’ (Maclure, 2019, p. 3). Transparency is linked to and overlaps with values of comprehensibility, explicability, accountability and social justice, and it is frequently presented as a vital component of ethical or ‘good’ AI (Floridi et al., 2018; Hayes et al., 2020; Leslie, 2019). ... 

...  This article uses the case of vibraimage to examine issues around opacity and the work it does for companies and governments in the provision of security services, by attempting to shed light on the algorithms of vibraimage and its imagined and actual uses, as far as possible based on publicly available data. What exactly does vibraimage measure and how does the data the system produces, processed through an algorithmic black box, deliver reports that have acquired the power to penetrate corporate and public security systems involved in the highest profile and most sensitive security tasks in Russia, Japan, China and elsewhere? The first section of the article examines emotion detection techniques and their digitalisation. The second section focuses on vibraimage and how its proponents, many of whom have commercial relationships with companies distributing it, have engaged in processes of scientific legitimation of the technology while making claims for its actual and potential uses. The final section considers how the disciplining power and corporate value of vibraimage are generated through its very opacity, in stark contrast to increasingly urgent demands across the social sciences and society, more broadly, for transparency as a prerequisite for ‘good AI’. I propose the term ‘suspect AI’ reflexively to describe the increasing number of algorithmic systems, such as vibraimage, in operation globally across law enforcement and security services, which automatically classify subjects as suspects or non-suspects. Popularising this term may be one way to resist such reductivist approaches to reading and exerting authority over human emotion, intentionality, behaviour and agency. 

Emotion Recognition Based on Facial Expressions 

Psychologist Paul Ekman pioneered research exploring the relationship between emotions and facial expressions since the 1960s, building on Darwin’s (2012[1872]) work on evolutionary connections between the two among animals, including humans. Ekman conducted experiments around the world, aiming to demonstrate the universality of a handful of basic emotions (such as anger, contempt, disgust, fear, happiness, sadness and surprise) across all cultures and societies, and of their articulation through similar facial expressions (Ekman, 1992). This work was highly influential because it seemed to provide overwhelming empirical evidence that individuals of all cultures were able to ‘correctly’ categorise the expressions of people of their own and other cultures provided in photos, matching them to the ‘basic emotions’ they supposedly expressed (Ekman & Friesen, 1971).  

Ekman further argued that facial expressions could be used to identify incongruities between professed and ‘real’ emotions, enabling facial expression analysis to be used for lie detection (Ekman & Friesen, 1969). This attracted substantial interest from corporations concerned with ensuring the honesty of employees or gaining covert insights in business negotiations, and from governments and security forces concerned with identifying dissimulating and suspect individuals. Ekman and collaborators in this field like David Matsumoto formed companies, running workshops and holding consultations with corporations and public bodies about how to read subjects’ facial micro-expressions and behavioural cues to evaluate personality, truthfulness and potential danger. In 2001, the American Psychological Association named Ekman one of the most influential psychologists of the twentieth century (APA, 2002). 

The identification of emotions through facial expressions underwent digitalisation via machine learning techniques pioneered since the mid-1990s by Rosalind Picard and Rana el Kaliouby at Massachusetts Institute of Technology (MIT). They commercialised this new field of ‘affective computing’ via their venture capital–backed company Affectiva, founded in 2009, which provides emotional analysis software to businesses based on algorithms trained on large databases of facial expressions (Johnson, 2019). According to Affectiva, this enables a test subject’s emotional responses to, for example, TV commercials, to be tracked in real time. With the recent boom in facial recognition technology, emotion recognition represents a rapidly expanding area of AI development, used across industries, including recruitment and marketing research (Devlin, 2020). A growing number of companies offer emotion recognition services based on analysis of facial expressions, including Microsoft (Emotion application programming Interface [API]), Amazon (Rekognition), Apple (Emotient, which Ekman advised on) and Google (Cloud Vision API). 

Such systems are increasingly being used in border protection and law enforcement to identify dissimulating and otherwise suspect individuals, regardless of substantial evidence of efficacy. From 2007, the Transportation Security Administration (TSA) spent US$900 million on a ‘behaviour-detection programme’ entitled Screening Passengers by Observation Technique (SPOT), until it was ruled ineffective by the Department of Homeland Security and the Government Accountability Office (GAO, 2013). Ekman consulted on SPOT, and the system incorporated his techniques; his company also provided consulting services to US courts (Fischer, 2013). Another system—Automated Virtual Agent for Truth Assessments in Real-Time (AVATAR), was developed for lie detection targeting migrants on the USA–Mexico border (Daniels, 2018), while the EU trialled the iBorderCtrl system, supplied by the consortium European Dynamics and funded by Horizon 2020, using the interpretation of micro-expressions to detect deceit among migrants in Hungary, Greece, and Latvia (Boffey, 2018; see also AI Now Institute, 2018, pp. 50–52). 

Recently, this work on facial expression analysis for emotion recognition has come under increasing scrutiny despite its ongoing popularity among many psychologists. The most basic critique is that one does not necessarily smile when one is happy—common sense suggests that facial expressions do not always, or even often, map to inner feelings, that emotions are often fleeting or momentary, and that facial expressions and their meaning are highly dependent on sociocultural context. Barrett et al. (2019) summarise these and other critiques, arguing that approaches positing a limited number of prototypical basic emotions that can be ‘read’ through universal facial expressions fail to grasp what emotions are and what facial expressions convey. 

In anthropology, the ‘affective turn’ has drawn attention to the distinction between affect and emotion—the former a precognitive sensory response or potential to affect and be affected, and the latter a more culturally mediated expression of feeling. White describes this as the difference between ‘how bodies feel and how subjects make sense of how they feel’ (White, 2017, p. 177). These nuances are overlooked in the field of emotion recognition, which reduces emotion to a simplistic and digitally scalable model. Barrett argues that emotion is: a contingent act of perception that makes sense of the information coming in from the world around you, how your body is feeling in the moment, and everything you’ve ever been taught to understand as emotion. Culture to culture, person to person even, it’s never quite the same. (Fischer, 2013) 

We might, therefore, define the process of interpreting one’s own emotional state as making sense of an inner noise of biological signals and memories, in contextually contingent and socioculturally mediated ways, and placing them into—and in the process co-constructing—socioculturally mediated categories. It may also sometimes involve not definitively categorising or making sense of these affective feelings. As this article will show, it is the very ambiguity or malleability of this process that may help make vibraimage a convincing technology of emotion recognition and provide authority to its analysis. 

Given these growing critiques of Ekmanian theories of universal basic emotions expressed through facial expressions, researchers at the organisation AI Nowhave concluded that, by extension, the digital emotion detection industry is ‘built on markedly shaky foundations…. There remains little to no evidence that these new affect-recognition products have any scientific validity’ (AI Now Institute, 2018, p. 50). Baesler, similarly, argues that the use of emotion detection software by the TSA was ‘unconfirmed by peer-reviewed research and untested in the field’ (Baesler, 2015, pp. 60–61), while holding significant potential for harm through misuse. In common with broader critiques of AI from critical algorithm studies (e.g., Eubanks, 2018; Lum & Isaac, 2016), machine learning methods involved in emotion recognition systems have been criticised for racial bias, based on their training data sets (Rhue, 2018). Indeed, Ekman’s work not only constructs ethnocentric emotional categories but also racial subject categories, for example in his creation, with Matsumoto, of the Japanese and Caucasian Facial Expressions of Emotion stimulus set of photos showing emotional expressions of archetypal ‘Japanese’ and ‘Caucasian’ subjects (Biehl et al., 1997; https://www/humintell.com), which continues to be used in psychology experiments. For all of these reasons, the increasingly widespread application of this technology has raised growing ethical and civil liberties concerns

'Automated Video Interviewing as the New Phrenology' by Ifeoma Ajunwa in (2022) 36 Berkeley Technology Law Journal 101 comments 

This Article deploys the new business practice of automated video interviewing as a case study to illuminate the limitations of traditional employment antidiscrimination laws. Employment antidiscrimination laws are inadequate to address unlawful discrimination attributable to emerging workplace technologies that gatekeep equal opportunity in employment. The Article shows how the practice of automated video interviewing is based on shaky or non-proven technological principles that disproportionately impact racial minorities. In this way, the practice of automated video interviewing is analogous to the pseudo-science of phrenology, which enabled societal and economic exclusion through the legitimization of eugenics and racist attitudes. After parsing the limitations of traditional anti-discrimination law to curtail emerging workplace technologies such as video interviewing, this Article argues that ex ante legal regulations, such as those derived from the late Professor Joel Reidenberg’s Lex Informatica framework, may be more effective than ex post remedies derived from the traditional employment antidiscrimination law regime. The Article argues that one major benefit of applying a Lex Informatica framework to video interviewing is developing legislation that considers the capabilities of the technology itself rather than how actors intend to use it. In the case of automated hiring, such an approach would mean actively using the Uniform Guideline on Employee Selection Procedures to govern the design of automated hiring systems. For example, the guidelines could dictate design features for the collection of personal information and treatment of content. Other frameworks, such as Professor Pamela Samuelson’s “privacy as trade secrecy” approach could govern design features for how information from automated video interviewing systems may be transported and shared. Rather than reifying techno solutionism, a focus on the technological capabilities of automated decision-making systems offers the opportunity for regulation to start at inception, which in turn could affect the development and design of the technology. This is a preemptive approach that sets standards for how the technology will be used and is a more proactive legal approach than merely addressing the negative consequences of the technology after they have occurred.

Decriminalisation

The Qld Law Reform Commission A decriminalised sex-work industry for Queensland report states 

The Queensland Government has committed to decriminalising sex work. In August 2021, the Attorney-General asked us – the Queensland Law Reform Commission – to conduct a review and recommend a framework for a decriminalised sex-work industry in Queensland. Our recommended framework treats sex work as work, not as a crime. It aims to regulate sex work as far as possible under the same general laws and in the same way as other work. Our review found that this is a better way to enhance safety, promote health and protect the human rights of people working in the industry. 

Why changes are needed 

The current system regulates sex work as prostitution, under criminal laws and licensing laws. These laws stigmatise sex workers, increase their vulnerability to exploitation and violence, and fail to protect their human rights. They prevent sex workers from working together and adopting safe work practices. Sex workers should not have to choose between working lawfully and working safely. 

The current laws are difficult to comply with and inhibit sex workers from accessing basic work rights. They isolate sex workers and create barriers to accessing health, safety and legal protections. Sex workers are reluctant to report crimes committed against them to police, because they fear being arrested or not being believed. We heard sex workers experience stigma and discrimination, in part because sex work is criminalised. The current licensing system for brothels has been taken up by only a small part of the industry. This has created a two-tiered industry where most sex workers are criminalised or working outside the licensed sector. 

The law should respond to reality, not myths. Stereotypes about most sex workers being street workers, victims of exploitation or trafficking, or ‘vectors of disease’ are not supported by the evidence or reflected in the diversity of the sex-work industry. The assumption that decriminalising sex work will increase the size of the industry is also unsupported. 

The reality is that sex workers already operate in suburbs, towns and commercial areas. Sex-worker organisations told us most sex workers value their privacy and operate discreetly. Most prefer not to work in the industrial zones in which licensed brothels mainly operate. Single operators work from their homes or other places in residential areas. Most sex work is arranged online or by phone, not by sex workers soliciting on the street. Research shows sex workers take care of their sexual health, have high levels of voluntary uptake of safer sex practices, and do not have rates of sexually transmissible infections (STIs) that are higher than the general population. Evidence from other jurisdictions suggests decriminalisation will not lead to an increase in the number of sex workers. 

Any criminal elements in the industry are best targeted by police enforcing criminal laws, not by licensing laws that are ill-equipped for that task. Research and evidence supports decriminalisation as the best way to safeguard sex workers’ rights, health and safety. 

The aims of decriminalisation 

Decriminalisation recognises sex work as work, not as a crime. It does not mean no regulation. Our recommended framework aims to treat sex-work businesses the same as other lawful businesses, with the same general laws applying to all. Sex-work businesses should be neither unfairly disadvantaged nor unfairly privileged. 

Special laws that single out sex work are not needed since laws of general application are fit for purpose. These general laws – including work, public health, advertising and public amenity laws – protect the rights of individuals and the public interest. Decriminalisation aims to help reduce stigma and discrimination, and safeguard sex workers’ rights, health and safety. 

Safeguards against exploitation 

Decriminalising sex work does not mean there should be no laws to protect the vulnerable. Sex work is between consenting adults. It is not the same as sexual exploitation, which is coercive or involves children. We recommend criminal laws with serious penalties for those who coerce individuals to provide commercial sexual services or involve children in commercial sexual services. This is needed to protect human rights. ... 

What we recommend 

Decriminalisation 

‘Each time I work I have to decide if it’s worth possible criminal charges ... to have someone working with me for security in order to be safe, or if it’s best to risk an assault, robbery or rape just to make sure I don’t face any criminal charges and ensure stability in my life.’ —Sex worker submission 

Working alone or with others 

The offences in chapter 22A of the Criminal Code create barriers to sex worker safety and access to justice. They make all sex work a crime, except in licensed brothels or by private sex workers working alone. The offences isolate sex workers, forcing them to choose between working safely or working lawfully. The offences are broad, unworkable and stigmatising. Research from decriminalised jurisdictions shows that removing sex work offences results in better outcomes for sex workers without expanding the size of the industry. 

Decriminalising sex work means recognising and regulating sex work as work, rather than as a crime. In our view, sections 229G to 229K of the Criminal Code are inconsistent with decriminalisation and should be repealed, along with related provisions in sections 229C to 229F and 229M to 229O. Repeal is needed to remove barriers to safe work practices, remove disincentives for sex workers to report crimes to police, and protect the human rights of sex workers and others. 

The related nuisance offence in section 76 of the Prostitution Act is inconsistent with decriminalisation and should also be repealed. Public nuisances are covered by existing general laws. 

Sex work will not be a crime. Subject to compliance with laws of general application, like planning laws and public nuisance laws: • it will be lawful for sex workers to work alone or for 2 or more sex workers to work together • it will be lawful to operate sex-work businesses, for sex workers to work at them and for clients to obtain services from them. 

Public soliciting 

Street-based sex work is a very small part of Queensland’s sex-work industry. It has become less common and there are no longer any specific locations in the state that are known for this form of work. Soliciting for sex work has shifted from the street to online. 

In our view, sex workers should not be singled out for special laws about public soliciting. These laws are not compatible with decriminalising sex work and treating it as legitimate work. The specific public soliciting offence and related provisions in sections 73–75 of the Prostitution Act should be removed. 

General laws about commercial soliciting and touting in public places apply to sex workers, like anyone else. Local governments should not make local laws specifically regulating public soliciting for sex work. 

Submissions were overwhelmingly opposed to any continued criminal law specifically against public soliciting for sex work. Research and submissions tell us people engaging in street-based sex work are more likely to be socio- economically marginalised and vulnerable. Continued criminal offences for public soliciting when other forms of sex work are decriminalised would further marginalise these workers. Street-based sex workers are more likely to experience violence and abuse. Risks to their health and safety are made worse by public solicitation offences. When these offences are removed, relationships between sex workers and the police may improve, allowing police to be seen as protectors of these workers rather than their prosecutors. Removing the offence may also reduce barriers to street-based sex workers accessing support services. 

Removing the public soliciting offence is consistent with human rights, especially in promoting sex workers’ freedom of movement. In our view, there is insufficient justification for restricting public soliciting in certain areas or at certain times. In submissions and consultations, we did not hear of any evidence that street-based sex work is prevalent or an issue of concern around schools, places of worship or hospitals. The specific move-on power for police if they suspect a person is soliciting for sex work, in section 46(5) of the Police Powers Act, should be removed. No other form of work is singled out in this way. It would be inconsistent to remove public soliciting offences and keep a specific move-on power. If police continued to have a sex-work- specific move-on power, sex workers might prioritise avoiding police over their own health and safety. 

Without a public soliciting offence and a specific police move-on power, there will still be several options to address any public amenity impacts of street-based sex work, including the public nuisance offence, general police move-on powers and non-regulatory solutions. Importantly, these options arise under existing general laws that apply to everyone. This is consistent with the aims of decriminalisation. 

The same general public nuisance laws and police move-on powers apply to everyone, including sex workers. Sex workers will not be singled out by special laws against public soliciting or street-based sex work. 

Sex-work advertising 

The Prostitution Act includes several sex-work-specific advertising offences. As explained in chapter 13 of our consultation paper, the legislation imposes many strict requirements on what ads can contain, where they can be published, what size they can be, and the wording or images that can be used. Many of these requirements are included in section 15 of the Prostitution Regulation and in the guidelines issued by the Prostitution Licensing Authority (PLA) under section 139A of the Prostitution Act. 

We heard these laws negatively affect sex workers and business operators. They are difficult to comply with, create barriers to negotiating with clients effectively and safely, and put people at risk of being fined and having a criminal record. 

In our view, the sex-work-specific advertising offences are not needed and should be removed. No new offences should be made. Singling out sex work for special advertising offences is inconsistent with the aims of decriminalisation, including the recognition of sex work as legitimate work. 

The Prostitution Regulation currently includes assessment benchmarks for brothel signage. In our view, these benchmarks should be removed. Signs for sex-work businesses should be regulated by any relevant planning requirements and local laws, like signs for other businesses. The same general laws, standards and codes that apply to all advertising in Australia apply to sex-work advertising. Removing sex-work-specific offences does not mean sex-work advertising or signage will be unregulated, or that the community will be exposed to explicit and offensive material. Community expectations and concerns can be met by general advertising laws, standards and codes. 

The same general laws, standards and codes that regulate all advertising apply to sex-work advertising. Sex work will not be singled out by special advertising offences. It will be lawful for sex workers to describe their services (including massage), and for sex-work businesses to advertise job vacancies. Sex-work advertising will no longer be required to be in an approved form, and will not be prohibited on tv or radio. Like signs for other businesses, signs for sex-work businesses can be regulated by planning requirements and local laws. 

Police powers 

Sex-work-specific covert powers given to police under the Police Powers Act create a strong sense of fear and mistrust, and contribute to barriers to sex workers’ safety and their access to justice and human rights. 

In our view, these police powers will no longer be needed if the sex-work-specific offences in chapter 22A of the Criminal Code and in the Prostitution Act are repealed, as we recommend in our report. 

Police will not have extra powers, like posing as clients, to gather evidence of sex-work-specific offences, which will be removed. 

Licensing 

‘For my entire time in Queensland there has been a licensing system including screening of brothel owners. ... There is no logic behind the idea that licensing deters illegal activity. In Queensland, licensing takes the industry and divides us into legal and illegal.’ —Sex worker submission 

Queensland’s current licensing system applies to the operators and managers of brothels. A person who operates a sex-work business with 2 or more sex workers must hold a licence and follow licensing rules and conditions. Sex work other than in a licensed brothel or by a private sex worker working alone is criminalised. 

With some exceptions, submissions were overwhelmingly opposed to a licensing system for sex-work business operators. In our view, the current licensing system should be removed, and no new licensing system should be introduced. We also consider that a licensing or registration system for individual sex workers is not needed and should not be introduced. The Prostitution Licensing Authority (PLA), and its associated Office of the Prostitution Licensing Authority, will no longer be needed and should be abolished. 

Licensing can be a useful regulatory approach, but it does not suit all industries. The current licensing system has had some benefits for those working within it, but licensing has been taken up by only a very small part of the industry. 

Licensing creates a two-tiered industry of licensed and unlicensed operators. There are 20 licensed brothels in Queensland, estimated to be 10% of the industry. Most sex workers work outside the licensed sector, whether privately or at unlicensed businesses. In combination with the sex-work offences in the Criminal Code, this undermines sex workers’ rights, health and safety, and access to justice. Relatively simple and inexpensive suitability certificate schemes, such as those in New Zealand and the Northern Territory, can also create a two-tiered industry. The unlawful sector has continued despite the licensing system. Sex-work licensing does not necessarily ensure the health and safety of workers (most of whom work outside the licensed sector), does not mean that a person will be a good business operator, and is not well suited to keeping criminal elements out of the industry. Any criminal elements in the industry are a matter for the enforcement of criminal laws by law enforcement agencies, not licensing. 

In our view, sex-work-specific licensing is not effective and not needed. Work health and safety benefits can be achieved under laws that regulate sex work in the same way as any other work or business. Decriminalising sex work will remove barriers to sex workers’ access to work rights and protections. In chapter 4, we recommend public-health-informed work health and safety guidelines be developed for and in consultation with the sex-work industry. 

Removing the current licensing system will reduce costs for the industry and government, and give sex-work business operators a more level playing field. 

There will be no sex-work licensing or certification. The Prostitution Licensing Authority will be abolished and there will be no sex-work-specific industry regulator. 

Health, safety and worker rights 

Work laws, health and safety 

‘[T]he best method to ensure individuals in the sex-work industry meet their work health and safety standards is to develop guidelines that appropriately include sex workers and sex-work businesses [under] existing workplace laws.’ —One Woman Project submission 

Decriminalising the sex-work industry and recognising sex work as lawful work will remove barriers and enhance access to entitlements and protections under existing work laws. 

Queensland’s work health and safety laws aim to ensure the health and safety of workers while at work, and others who may be affected by the work. These laws apply to all workers, including sex workers, and Workplace Health and Safety Queensland (WHSQ) is the regulator responsible for making sure these laws are followed. 

To further support improved access to work health and safety protections, we recommend that WHSQ develop work health and safety guidelines for the sex-work industry. The guidelines should be developed in consultation with the sex-work industry, including sex-worker organisations and other relevant people and agencies. Guidelines will help sex-work business operators and sex workers understand their rights and duties under work health and safety laws, and give practical guidance about how to meet them. In a decriminalised context, sex work is legitimate work, not a crime. In our view, special laws like those in some other jurisdictions are not needed to state that: • a contract for sex work is not illegal or unenforceable on public policy grounds • a sex worker may, at any time, refuse to perform sex work • a contract for sex work does not constitute consent for the purposes of criminal law. 

These matters will be recognised and addressed by the application of existing laws to sex work as lawful work, including laws dealing with contracts, work health and safety laws, and sexual consent laws. 

Sex work will be recognised as lawful work. The same general work laws that apply to other workers and businesses apply to the sex-work industry, including work health and safety laws. Workplace Health and Safety Queensland is the regulator responsible for making sure work health and safety laws are followed. Guidelines will help the sex-work industry understand and implement their work health and safety rights and duties. 

Public health and sex workers 

‘Sex work could be regulated like other businesses using workplace health and safety frameworks supported by existing public health legislation and infection control guidance without the need for additional regulation...’ —Queensland Health submission 

‘Existing laws regulating sex work contribute to poor public health outcomes by promoting stigma and discrimination towards sex workers, which in turn can lead to increased rates of HIV and other STIs.’ —Australasian Society for HIV, Viral Hepatitis and Sexual Health Medicine (ASHM) submission 

In our view, sections 77A, 89 and 90 of the Prostitution Act, which require the use of prophylactics by all sex workers and their clients and prohibit sex workers at licensed brothels from working with a sexually transmissible infection (STI), are not needed and should be removed. No similar sex-work-specific offences should be enacted. 

Sex-work-specific health offences criminalise and stigmatise sex workers and are not consistent with the aims of decriminalisation. They are a barrier to good health outcomes and do not align with evidence-based best practice in public health, which promotes informed and voluntary adoption of safer sex practices for the successful prevention of STIs and blood-borne viruses (BBVs). 

Public health laws and sexual health policies create a supportive environment to promote the optimal sexual health of sex workers and clients, while providing the necessary safeguards to protect public health. The Public Health Act supports a best-practice framework to manage ‘notifiable conditions’, including several STIs of particular significance to public health. As discussed in this chapter, work health and safety in the sex-work industry, including safer sex practices, is addressed by general work health and safety laws and will be the subject of specific guidance in the guidelines we recommend be developed for the sex-work industry. 

Health promotion, peer education, and access to health and other support services are important factors in the successful prevention of STIs, and we have made recommendations about this in chapter 7 of our report. 

Public health laws and policy approaches apply to protect public health and promote the health of all Queenslanders, including sex workers and clients. 

Work health and safety laws that apply to everyone at work ensure the work health and safety of sex workers and clients, including by the adoption of safer sex practices. Sex workers will not be singled out by special criminal laws. Informed and voluntary safer sex practices and sexual health testing will be supported. 

Discrimination protections 

Sex workers experience significant stigma, discrimination, and barriers to exercising their rights. Decriminalising sex work will remove some of these barriers and is a necessary first step to addressing stigma and discrimination. Protections under the Anti-Discrimination Act need to be strengthened as part of the decriminalisation framework. This is consistent with the aim of reducing stigma and safeguarding sex workers’ human rights, including the right to equal and effective protection against discrimination. In our view, the protected attribute of ‘lawful sexual activity’ in the Anti-Discrimination Act should be retained and its scope clarified and strengthened. The current definition, which limits the attribute to lawful sex workers, should be removed. Instead, ‘lawful sexual activity’ should be defined in the Act to include being a sex worker or engaging in sex work. For this purpose, ‘sex work’ should be defined to mean ‘an adult providing consensual sexual services, involving physical contact, to another adult in return for payment or reward’. These definitions make it clear that the protection applies to sex workers and includes engaging in sex work within the meaning of this review. However, the ‘lawful sexual activity’ attribute is defined inclusively and will not be limited to sex work. 

Exemptions in the Anti-Discrimination Act that presently allow discrimination specifically against a person because they are a sex worker are not needed, are inconsistent with decriminalisation, and should be removed. We recommend changes to: • repeal the ‘accommodation exemption’ that allows accommodation providers to discriminate against sex workers • repeal the ‘work with children’ exemption as it applies to sex workers, which allows employers at jobs that involve the care or instruction of children, like schools or childcare centres, to discriminate against a job applicant because the applicant is also a sex worker. The legislative changes we recommend in this chapter should be accompanied by adequately resourced education and awareness to help address stigma and discrimination, and to support sex workers to understand and exercise their rights. In developing our recommendations, we considered the Queensland Human Rights Commission’s (QHRC) 2022 review of the Anti-Discrimination Act. Our recommendations are limited to current provisions in the Act that are specifically about sex workers. 

A person who is a sex worker or engages in sex work is protected from unlawful discrimination under the Anti-Discrimination Act. 

The protection applies to ‘lawful sexual activity’, including but not limited to sex workers or sex work. Accommodation providers and employers will not have specific exemptions allowing them to discriminate, in particular circumstances, against people because they are sex workers. 

Planning and local laws 

‘When I’m working from home, I am very discreet and conscious of my surroundings and neighbours. I have set business hours, I ask my clients to park in my driveway in order not to impact others. I don’t have a red light on my letter box ... I do not have a line-up of clients down the street. An average week I would see 5–7 clients ... My neighbour gets more visitors than me. It’s stigma and prejudice ... that creates issues.’ —Sex worker submission ‘ 

[S]ex work businesses should, as far as possible, be regulated the same way as other businesses.’ —Queensland Law Society submission 

‘Sex-work businesses should not be forced into industrial zones or excluded from other areas [where] similar businesses are able to operate.’ —Sex worker submission 

Changes are needed to integrate decriminalised sex work into Queensland’s planning framework and make sure local planning instruments and local laws support the intent of decriminalisation. Currently: • some types of sex-work businesses, such as erotic massage parlours and sex-work collectives, are illegal and not specifically addressed in the planning framework • licensed brothels are subject to onerous restrictions and guided towards industrial areas • a sex worker can conduct a home-based business, but other laws limit them to working alone. We heard from sex workers, local governments and their representative organisations about challenging issues, including sex worker concerns about privacy and discrimination, and local government concerns about meeting community expectations and undertaking enforcement. 

Matters we considered included: • balancing the privacy needs and discrimination concerns of sex workers against the principles of transparency and community input that are features of Queensland’s planning system • the roles of state and local governments in setting planning requirements for sex-work businesses • the extent to which sex-work businesses should be able to operate in residential areas • providing viable avenues for existing sex-work businesses to become compliant with planning laws • sex worker and local government concerns about compliance and enforcement. 

We recommend changes to the Planning Act, Planning Regulation, Prostitution Act, Prostitution Regulation and some other legislation. Our recommendations aim to create a balanced approach to dealing with the issues above by treating sex-work businesses like other businesses, while also providing protections so the benefits of decriminalisation filter down to local government areas. 

For workers and businesses: • Planning frameworks will apply to ‘sex work services’ not ‘brothels’, better reflecting the variety of sex-work businesses. • Sex-work-specific prohibitions will be removed. • Sex-work businesses are to be treated like other businesses, with similar size and location requirements and no sex-work-specific separation distances. • Planning rules should allow sex work services to operate in centre (commercial) and mixed- use zones, not just in industrial zones. • Home-based sex-work businesses are to be treated like any other home-based business. • Sex-work businesses that apply for development approval within the first 12 months after decriminalisation starts will be protected from having information in their application used as evidence of a development offence. 

For the community: • Sex-work businesses are already operating in Queensland. • Amenity impacts can be addressed through planning requirements and development conditions in the same way as for other businesses. For sex work services, we recommend requiring that all activities relating to sex work be contained wholly within a building and not be visible from windows, doors or outside the premises. 

For local governments: • Local governments must not use local laws to single out sex-work businesses or re- establish sex-work licensing or offences. • State planning requirements for sex-work businesses will apply unless or until a local government makes its own requirements consistent with the principles of decriminalisation. 

Coercion and the exploitation of children 

‘No person should be able to force or coerce another person into providing sexual services.’ —NZPC: Aotearoa New Zealand Sex Workers’ Collective (NZPC) submission 

Queensland’s current prostitution laws do not clearly distinguish between sex work and exploitation. The exploitation offences in sections 229FA and 229L of the Criminal Code, and section 77 of the Prostitution Act, should be repealed. Offences dealing with coercion and the involvement of children in commercial sexual services should be included in a new chapter in part 5 of the Criminal Code. Decriminalising sex work will help reduce sex workers’ vulnerability to exploitation. But protection is also needed for children and people who do not identify as sex workers. Decriminalising sex work does not require the removal of criminal laws against exploitation. Criminal laws against coercion and the involvement of children are needed to protect human rights and support Australia in meeting its international human rights obligations. Such laws are justified to set a clear policy position and avoid any gaps in protection. The criminal justice system should not be the primary focal point for responding to children and vulnerable adults involved in commercial sexual services. Non-legislative measures are needed, including information and education for sex workers and police. 

Sex work, which is between consenting adults, is distinguished from sexual exploitation. Newly defined criminal offences will ensure there are serious penalties for those who coerce individuals or involve children in commercial sexual services. 

Implementation 

‘It will take some time for the industry to transition and adapt.’ —Sex worker submission 

‘In changing [the] laws, there need to be public education campaigns, peer education, and sensitivity training for organisations [who] deal with sex workers. There should also be steps taken to build positive relationship[s] between sex workers, police and other authorities, and continuation of peer support and outreach services by sex-worker organisations.’ —Member of the public submission 

Timing of commencement 

If the Queensland Parliament passes legislation to decriminalise the sex-work industry, a period of time will be needed to transition to the decriminalisation framework before it commences. This will give the sex-work industry and the Queensland Government time to prepare for the new model of regulation. The timing is a matter for the government to consider and we make no recommendation on how long the transition period should be. 

The commencement of decriminalisation reforms in Victoria in 2 stages has caused confusion and uncertainty, resulting in lengthy delays to the start of beneficial reforms. A staged approach is not optimal and should not be followed in Queensland. We recommend all legislative reforms should commence simultaneously. 

All laws needed for decriminalisation will start at the same time to avoid uncertainty. 

Transition of licensed brothels 

Decriminalising the sex-work industry will have advantages and disadvantages for brothel licensees. We recommend removing the licensing system, which will mean reducing red tape and allowing brothel owners to better compete with other sex-work business owners. It may be difficult for them to move their businesses to commercial or mixed use areas in response to changes to planning requirements. Consideration should be given to a compensatory mechanism, such as fee relief, during the transition period, to defray some of the costs of moving from the current licensing system to the recommended new framework. 

Review of legislative changes 

Decriminalising the sex-work industry will be a significant change to the current regulatory approach. In our view, there should be a legislative requirement for the responsible Minister to ensure that the operation of the legislation giving effect to this change is reviewed by a committee no sooner than 4 years and no later than 5 years after decriminalisation is implemented. The review should focus on the effectiveness of the new regulatory framework. The review might consider, but should not be compelled by law, to assess the number of sex workers, or to collect baseline data since accurate data may be hard for it to obtain. 

The decriminalisation laws should be reviewed and evaluated after 4–5 years. Representatives of relevant non-government agencies, including sex-worker organisations, should be involved in the review process. 

Education and other measures 

Decriminalisation of the sex-work industry will be a significant change to how the industry is regulated in Queensland. Changes to the law will need to be accompanied by broader measures to support transition to, and implementation of, the decriminalised framework, and to help achieve the aims of decriminalisation. The Queensland Government should take the lead role in coordinating, and ensuring adequate funding, for a range of measures we recommend. Information, awareness programs, education and training will be needed to promote health and safety in the industry, address stigma, and change attitudes to sex work and sex workers. Policies and practices will need to be developed to support the recognition of sex work as work, rather than as a crime. 

Sex-worker organisations have lived experience and knowledge of sex work and should be involved in shaping and, in some cases, delivering the measures we recommend. Adequately funded health, safety, and other peer- support and outreach services should be provided for sex workers. Improved relationships between the sex-work industry and police are vital to the success of decriminalisation. Steps should be taken to build positive relationships between sex workers, police and other law enforcement authorities. 

A temporary working group should be established to help implement the decriminalisation reforms. It should consist of regulators and other relevant government agencies, sex-worker organisations and other non- government organisations with industry knowledge. The measures we recommend are likely to be particularly important in the first few years after the sex-work industry is decriminalised, as sex workers, the sex-work industry, police, government agencies, non-government organisations and the community adjust to the new regulatory model. The need for tailored information about general laws and regulations may diminish over time as the sex-work industry is integrated into mainstream regulatory frameworks. As well as our recommendations in this chapter, we note or recommend some related matters in other chapters of our report (see chapters 4, 5, 6 and 8). 

The Queensland Government should ensure the industry, the community, and government agencies are informed about the changes to the law and aims of decriminalisation. The Queensland Government should ensure sex workers continue to have access to peer-support services. A temporary working group will help implement the decriminalisation reforms. 

Other matters 

We were asked to consider if the criminal law should be changed to address concerns about fraudulent promises to pay sex workers for agreed sexual services. Submissions to our review also raised issues about stealthing, supply of alcohol by sex-work businesses, sex work performed by strippers, and expunging sex-work charges and convictions from criminal records. These are significant and complex issues that highlight important concerns about access to justice and safety for sex workers and others. However, most of these issues are secondary to the decriminalisation of sex work and we do not make recommendations about them for specific changes to the law. 

Fraudulent promises to pay a sex worker for agreed sexual services are adequately covered by the current criminal law and our recommended framework for a decriminalised sex-work industry, including the coercion offence recommended in chapter 6. We recommend that guidance be given to police and prosecutors to help them respond to sex-worker complainants, and that community legal services support sex workers to access their legal rights. 

Stealthing, which involves the non-consensual removal of or failure to use a condom, is addressed by a Women’s Safety and Justice Taskforce recommendation that the Queensland Government has committed to implementing. The supply of alcohol by sex-work businesses should be regulated by standard liquor licensing laws, with policy developed by the Office of Liquor and Gaming Regulation (OLGR). 

Strippers who perform sex work will benefit from decriminalisation, along with other sex workers. The regulation of adult entertainment under the Liquor Act is separate to the regulation of sex work and is not a focus of our review. Workplace exploitation at licensed adult entertainment premises is a matter for regulators under general laws, including for police in cases of serious violence. It is a policy matter for the Queensland Government to consider if changes to the regulation of adult entertainment should be made. Expungement of sex-work convictions raises considerations outside the scope of our review. Some concerns raised in submissions about disclosure of criminal records for sex-work offences might be addressed by other laws. We note that the Queensland Human Rights Commission (QHRC) recommends that ‘irrelevant criminal record’ be made a protected attribute in the Anti-Discrimination Act. 

In considering these and other issues, we identify consequential amendments to other legislation to reflect our recommendations about changes to the Prostitution Act and chapter 22A of the Criminal Code to decriminalise sex work and remove the brothel licensing system. The details of these amendments are set out in the table of drafting instructions in volume 2 of our report.