Disability

The Australian Human Rights Commission has released a report titled KA, KB, KC and KD v Commonwealth of Australia: report into arbitrary detention, inhumane conditions of detention and the right of people with disabilities to live in the community with choices equal to others [PDF]. The report argues that the Commonwealth has failed to work with the Northern Territory to provide accommodation and other support services, other than accommodation in a maximum security prison, for people with intellectual disabilities who are unfit to plead to criminal charges.

The Commission comments that

Four Aboriginal men with intellectual and cognitive disabilities were held for years in a maximum security prison in the Northern Territory despite being found unfit to stand trial or not guilty by reason of insanity. If two of these men had been found guilty they would have received a sentence of 12 months. Instead, they were imprisoned for four and a half years and six years respectively. The Australian Human Rights Commission conducted an inquiry into whether this involved any breach of human rights by Commonwealth.

The Commission found that there was a failure by the Commonwealth to work with the Northern Territory to provide accommodation and other support services, other than accommodation in a maximum security prison, for people with intellectual disabilities who are unfit to plead to criminal charges.

There was an obligation at international law on the Commonwealth to act. This obligation was consistent with domestic obligations undertaken by the Commonwealth to the Northern Territory. The need for action was well known and had been well known for many years. Specific administrative measures to take this action were provided for by legislation.

The failure to act was inconsistent with or contrary to the complainants’ rights under articles 9(1) and 10(1) of the International Covenant on Civil and Political Rights and articles 14(1), 19, 25, 26(1) and 28(1) of the Convention on the Rights of Persons with Disabilities. In particular, it was contrary to their right not to be arbitrarily detained, and their right as people with disabilities to live in the community with choices equal to others.

In the case of Mr KA and Mr KD, the failure to act was also inconsistent with article 7 of the ICCPR and article 15 of the CRPD which prohibit inhuman or degrading treatment. Mr KA was subject to regular restraint including being strapped to a chair and the use of shackles when outside his cell, seclusion and use of tranquilizers. Mr KD was subject to regular seclusion and use of tranquilizers. The prison environment in which they continue to be detained is inappropriate for people with their disabilities.

The consequent  recommendations are that -

 The Commonwealth provide a copy of the Commission’s findings to the Northern Territory and seek assurances from the Northern Territory that it will take immediate steps to identify alternative accommodation arrangements for each of the complainants so that Mr KA and Mr KD are no longer detained in a prison and Mr KB and Mr KC are progressively moved out of held detention. These arrangements should be the least restrictive arrangements appropriate to each individual and should include a plan to progressively move each of them into the community along with necessary support services.

The Commonwealth cooperate with the Northern Territory to establish an appropriate range of facilities in the Northern Territory so that people with cognitive impairment who are subject to a custodial supervision order can be accommodated in places other than prisons. This range of facilities should include secure care facilities and supported community supervision. The number of places available in these facilities should be sufficient to cater for the number of people who are anticipated to make use of them.

The Commonwealth cooperate with the Northern Territory to ensure that people with cognitive impairment who have not been convicted of an offence are detained as a measure of last resort, for the shortest appropriate period of time, and in the least restrictive appropriate environment.

The Commonwealth cooperate with the Northern Territory to ensure that when a person with a cognitive impairment is detained under a custodial supervision order, a plan is put in place to move that person into progressively less restrictive environments and eventually out of detention.

The Commonwealth cooperate with the Northern Territory to develop model service system standards for the detention of people with a cognitive impairment.

The Commonwealth cooperate with the Northern Territory to ensure that when a person with a cognitive impairment is detained he or she is provided with appropriate advice and support, including the appointment of a guardian or advocate.

 The Commission notes that

The Commonwealth did not directly respond to these recommendations, on the basis that it considered that the Commission did not have jurisdiction to inquire into the complaints. As this decision can be reviewed under the Administrative Decisions (Judicial Review) Act 1977 (Cth), this is the only statement the Commission will be making on this matter.

Legal Teaching

Recommendation 7.1 in the Productivity Commission Access To Justice report noted here is that -

The Law, Crime and Community Safety Council, in consultation with universities and the professions, should conduct a systemic review of the current status of the three stages of legal education (university, practical legal training and continuing professional development).

The review should commence in 2015 and consider the:

• appropriate role of, and overall balance between, each of the three stages of legal education and training 

• ongoing need for each of the core areas of knowledge in law degrees, as currently specified in the 11 Academic Requirements for Admission, and their relevance to legal practice 

• best way to incorporate the full range of legal dispute resolution options, including non adversarial and non court options, and the ability to match the most appropriate resolution option to the dispute type and characteristics into one (or more) of the stages of legal education 

• relative merits of increased clinical legal education at the university or practical training stages of education 

• regulatory oversight for each stage, including the nature of tasks that could appropriately be conducted by individuals who have completed each stage of education, and any potential to consolidate roles in regulating admission, practising certificates and continuing professional development.

Consideration should be given to the Western Australian and Victorian models in this regard. The Law, Crime and Community Safety Council should consider the recommendations of the review in time to enable implementation of outcomes by the commencement of the 2017 academic year.

The recommendation reflects the Commission's conclusion that -

An efficient and responsive legal profession improves access to justice.

There are several elements that affect the quality of, and competition in, legal services markets — the education and training of lawyers, their entry into the profession, and the regulation of the profession itself.

The education and training of law students influences the future legal profession. – Despite concerns about a potential oversupply of graduates, there is no policy rationale in the legal market — beyond ensuring baseline quality standards — for restricting numbers. – While there are examples of leading practices in various institutions, a systemic review of the legal education system is overdue. More emphasis should be placed on skills, rather than accumulating knowledge. The systemic review should examine:

• the need for each of the current 11 Academic Requirements 

• including alternative dispute resolution as a required area of study 

• practical training, including pro bono placements, interpersonal skills and business management courses 

• the necessity, role and conduct of separate admission and practising certificate requirements.

More radical changes in legal education would only be effective if coupled with reforms to the profession. – Building on existing examples, ‘limited licences’ should be implemented to allow appropriately qualified professionals to perform select tasks in particular areas that are currently the exclusive domain of lawyers.

Specific advertising restrictions appear unnecessary given broader economywide regulation and general legal professional standards of conduct.

While restrictions on professional indemnity insurance can be justified on consumer protection grounds, they should be subject to periodic independent review to ensure they remain a targeted and proportionate response to the problem.

Implementation of the National Legal Profession Reform, which was initiated in 2009, has been stymied by jurisdictional differences. – Progress made by Victoria and New South Wales provides other jurisdictions with a ‘preview’ of the benefits of reforms. Further gains depend on evaluation of these reforms.

PC Access To Justice report

The Productivity Commission has released its two volume report on Access To Justice.

The first volume deals with the accessibility of the justice system, use of alternative forms of dispute resolution, regulation of the legal profession and the structure and operations of ombudsmen, tribunals and courts. The second volume discusses private funding of litigation and the provision of legal aid (generally and specifically to Aboriginal and Torres Strait Islander people).

Key points are

• There are widespread concerns that Australia’s civil justice system is too slow, too expensive and too adversarial. But the notion of a civil justice ‘system’ is misleading. Parties can resolve their disputes in many ways, including through courts, tribunals and ombudsmen. Each differs in its formality, cost and timeliness. Such a complex system resists both a single diagnosis and remedy. 
• While much focus is on the courts, the central pillar of the justice system, much is done in their shadow, with parties resolving their disputes privately. Community legal education, legal information (including self-help kits) and minor advice help ensure that parties are better equipped to do so. Better coordination and greater quality control in the development and delivery of these services would improve their value and reach. 
• Where disputes become intractable, parties often have recourse to a range of low cost and informal dispute resolution mechanisms. But many people are unnecessarily deterred by fears about costs and/or have difficulty in identifying whether and where to seek assistance. A well-recognised entry point or gateway for legal assistance and referral would make it easier to navigate the legal system. 
• Most parties require professional legal assistance in more complex matters. But the interests of lawyers and their clients do not always align. Reforms to professional regulation are required to ensure clients are better informed and have more options for selecting the tasks they want assistance with, and how they will be billed. Clients should also have independent and effective options for redress when professional standards fall short. 
• Some disputes, by their nature, are more appropriately handled through the courts. While these disputes may be small in number, many individuals are poorly placed to meet the associated costs. Court processes in all jurisdictions have undergone reforms to reduce the cost and length of litigation. But progress has been uneven and more needs to be done to avoid unnecessary expense. 
• The ways in which parties interact with each other and with courts and tribunals also needs to change. The adversarial behaviour of parties and their lawyers can hinder the resolution of disputes or even exacerbate them. Changes to rules governing the conduct of parties and lawyers, and the way in which costs are awarded, would improve incentives to cooperate. 
• Court fees vary widely across courts and jurisdictions and are not set with reference to a common framework. A more systematic approach is required for determining fees. Parties can derive significant private benefits from using the court system; these benefits need to be reflected in court charges, which in many cases should be increased. 
• Disadvantaged Australians are more susceptible to, and less equipped to deal with, legal disputes. Governments have a role in assisting these individuals. Numerous studies show that efficient government funded legal assistance services generate net benefits to the community. 
• The nature and predictability of funding arrangements constrain the capacity of legal assistance providers to direct assistance to the areas of greatest benefit. This needs to change and, in some cases, funding should be redirected. 
• While there is some scope to improve the practices of legal assistance providers, this alone will not address the gap in services. More resources are required to better meet the legal needs of disadvantaged Australians.

In undertaking the inquiry the Commission was required to "examine the current costs of accessing justice services and securing legal representation, and the impact of these costs on access to, and quality of justice", making recommendations on "the best way to improve access to the justice system and equity of representation including, but not limited to, the funding of legal assistance services". It was to have particular regard to:

1. an assessment of the real costs of legal representation and trends over time

2. an assessment of the level of demand for legal services, including analysis of: (a) the number of persons who cannot afford to secure legal services but who do not qualify for legal assistance services, and (b) the number of pro bono hours provided by legal professionals

3. the factors that contribute to the cost of legal representation in Australia, including analysis of: (a) the supply of law graduates and barriers to entering the legal services market (b) information asymmetry (c) other issues of market failure (d) the structure of the legal profession in State and Territory jurisdictions (e) legal professional rules and practices (f) court practices and procedures (g) models of billing practices (h) the application of taxation laws to legal services expenditure, and (i) other features of the legal services market which drive costs

4. whether the costs charged for accessing justice services and for legal representation are generally proportionate to the issues in dispute

5. the impact of the costs of accessing justice services, and securing legal representation, on the effectiveness of these services, including analysis of: (a) the ability of disadvantaged parties, including persons for whom English is a second language, to effectively self-represent, and (b) the extent to which considerable resource disparity impacts on the effectiveness of the adversarial system and court processes

6. the economic and social impact of the costs of accessing justice services, and securing legal representation

7. the impact of the structures and processes of legal institutions on the costs of accessing and utilising these institutions, including analysis of discovery and case management processes

8. alternative mechanisms to improve equity and access to justice and achieve lower cost civil dispute resolution, in both metropolitan areas and regional and remote communities, and the costs and benefits of these, including analysis of the extent to which the following could contribute to addressing cost pressures: (a) early intervention measures (b) models of alternative dispute resolution (c) litigation funding (d) different models of legal aid assistance (e) specialist courts or alternative processes, such as community conferencing (f) use of technology, and (g) expedited procedures

9. reforms in Australian jurisdictions and overseas which have been effective at lowering the costs of accessing justice services, securing legal representation and promoting equality in the justice system, and

10. data collection across the justice system that would enable better measurement and evaluation of cost drivers and the effectiveness of measures to contain these.

Participatory Sensing

'Participatory Sensing: Enabling interactive local governance through citizen engagement' [PDF] by Slaven Marusic, Jayavardhana Gubbi, Helen Sullivan, Yee Wei Law and M. Palaniswami of the Department of Electrical and Electronic Engineering at the University of Melbourne argues that

Local government (such as the City of Melbourne) is accountable and responsible for establishment, execution and oversight of strategic objectives and resource management in the metropolis. Faced with a rising population, Council has in place a number of strategic plans to ensure it is able to deliver services that maintain (and ideally improve) the quality of life for its citizens (including residents, workers and visitors). This work explores participatory sensing (PS) and issues associated with governance in the light of new information gathering capabilities that directly engage citizens in collecting data and providing contextual insight that has the potential to greatly enhance Council operations in managing these environments. 

Their paper examines:

• Key hurdles affecting the viability and uptake of PS from different stakeholder perspectives 
• The capacity of PS as a new and mutually beneficial communication link between citizens and government; the respective value propositions in participating, whilst simultaneously increasing engagement and enhancing City operations through co-production with citizens
• Technological elements of PS and associated privacy impacts through the application lens of noise monitoring
• Social impacts of emerging pervasive technologies, particularly the encroachment upon privacy, associated risks and implications, not only for the individual but also the impact in shared environments
• Responsibilities and avenues for mitigation assigned to respective stakeholders; including user awareness factors, policy frameworks and design level strategies
• The role of reputation and trust management between stakeholders in fostering productive links, along with the capacity for citizen empowerment
• The balance of perceived competing objectives of privacy and transparency, ethical strategies to address this challenge
• User perceptions of related issues taken from studies of internet and social media usage through computing and mobile platforms
• A development platform to measure user awareness of privacy risks, behavioural responses to a spectrum of engagement options effectively returning to the user a level of control over their participation 
• Essential requirements for responsible implementation of PS platforms, considering ethical issues, responsibilities, privacy, transparency and accessibility 

The key findings are -

Participatory sensing

• The active role of the user is critical for the success of PS, requiring effective engagement, but also mitigation of disincentives, such as privacy concerns. As privacy risks increase in the context of multiplied information sources, despite available privacy preservation strategies, user awareness and control remain key elements. • Establishment and management of mutual trust is key to PS functioning as an effective medium for communication between stakeholders and for ensuring accountability. • Citizen empowerment is only achieved with the provision of information to assist individual decision-making, as well as the opportunity for responsibility and control over level of participation. • Incentivisation schemes need to recognise the value of the data/service being supplied by the user, the accessibility of the organiser provided service and ongoing value propositions .....

Privacy vs transparency

• Privacy is one’s control over access and flow of their information. Legal protections are limited to specific circumstances, so ethical means for supplementary privacy protection offer transparency with respect to data accuracy and embed privacy in the design. System transparency and verifiable privacy measures can build trust between stakeholders. • Social implications warrant mechanisms for managing data history. Additionally, informed user consent needs to be the goal and supported by effective communication of risks. Accordingly, users will utilise various means for protecting privacy, according to their level of awareness and evaluation of risks

Policy frameworks

• Systems for protection of personal information are essential for maintaining/building trust between organisations and citizens. This includes discovery of breaches and recourse for compensation. Existing policies cover data collection and handling; citizen engagement strategies; and feedback management. They reflect privacy concerns; principles of open and responsive government; and value in citizen contributions to governance. • Limitations of privacy legislation demands supplementary principles/guidelines for system implementation, including industry self-regulation, privacy by design and privacy impact assessment (PIA). Existing and supplementary measures thus need to be utilised and adapted for effective PS.

Pilot study

• The pilot study is based on a noise measurement app and central server for data aggregation and display. The app provides a spectrum of privacy level options, to be selected by the user, that reflect the type and amount of data to be collected/shared. • The privacy level selection interface serves to inform the user of data handling (and implies associated risk), while a refined interface can more explicitly convey this. This capability demonstrates a means for increasing user control over their level of participation. • A larger study can expand this capability; provide detailed assessment of public participation capacity; conduct a PIA; reach broader demographics; and further evaluate the issues raised throughout this paper.

Recommendations

• Prior to embarking on PS implementations, organisations thoroughly analyse all stakeholder concerns and ensure necessary steps are taken to address these, as outlined here • The City of Melbourne look for opportunities to test participatory sensing as a means of addressing specific community concerns in relation to noise nuisance • Policy makers review existing policy frameworks to ensure that they offer the appropriate combination of incentives and safeguards to facilitate greater citizen involvement in addressing issues of community concern (co-production) • Policy makers review existing organisational structures and professional cultures to identify any additional barriers to effective citizen engagement

In discussing privacy the authors comment

In literature associated with PS, social media platforms and now IoT, privacy concerns are listed as a significant issue. However, insufficient attention is given to the nature of these concerns, such as: the implications and risk factors of inadequate privacy protection measures; the impact on technology utilisation of users’ actual understanding of existing risk factors and any safeguards that may be available. Solutions that are provided are often limited in scope. Indeed, there is a risk that designers will focus on development of new system capabilities, neglecting the necessary ethical dilemmas by associating these challenges with data utilisation and so a task for someone else (Shilton, Participatory Sensing: Building Empowering Surveillance 2010). A survey of PS applications and associated challenges is provided in (Christin, Reinhardt, et al. 2011). Importantly, they acknowledge the lack of flexibility needed to reflect diverse viewpoints and awareness of privacy risk, implications and available mitigation strategies.

The first privacy requirement is the provision of secure communication links between the user and platform (hosted by the service provider). Conventional data encryption methods available on mobile computing platforms (such as Secure Socket Layer (SSL)/Transport Layer Security (TLS)) intend to ensure that only the intended receiver of the data transmissions is able to access the contents (De Cristofaro and Soriente 2013).

One of the obvious risks associated with PS applications is the same as that of any data sharing application, where the information being shared may actually reveal more about the user than is being intended, or agreed upon. It is now widely accepted that users of social media platforms need to take care in the way personal information is shared or publicly displayed, particularly when utilising multiple platforms. It has been demonstrated that seemingly innocuous postings can reveal information about location, behaviour, routine, social networks and identity. This may be described as information leakage, where it crosses over to another domain or platform to reveal either something more detailed or completely new when combined with other data. Each of the sensing modalities available on smartphones present the risk of revealing private information, from: daily routine (based on time stamped location); identity (from photos, gait analysis, voice recognition); or associations (from photos and voice recognition).

Importantly, the nature of participatory sensing has the capacity to reveal information, not only about the user, but also about others in their vicinity. Therefore, in addition to personal risk of exposure, awareness also needs to be established of the secondary exposure introduced into a given environment. Providing adequate safeguards is thus a multidimensional problem (Christin, Reinhardt, et al. 2011). When the associated services are primarily location focussed, such information has real-world implications. Location can be established, with varying degrees of accuracy, from GPS signals, cell tower locations, as well as from Wi-Fi and Bluetooth links to associated infrastructure. For example, some traffic authorities have deployed infrastructure to detect Bluetooth devices of vehicle users in order to map vehicle paths and travel times. Whilst in such instances, the information is being utilised to improve traffic flow and road infrastructure services, it demonstrates the vulnerability of individuals in allowing unsecured access to their communications and the secondary information that can be extracted from doing so. These concepts have also been explored in the context of Intelligent Transportation Systems that utilise various means of vehicle identification from license plate recognition, electronic tags for tolling systems or GPS devices. The roles of different interested stakeholders are noted along with the potential for establishing personally identifiable location information and how existing US privacy law impacts such operations (Garry, Douma and Simon 2012). Similar challenges have been faced by location based services on mobile phone or computing platforms for some time (Anderson, Henderson and Kotz 2007) (He, Wu and Khosla 2004) (Shahabi and Khoshgozaran 2007).

Privacy preservation

There exists a suite of proposed solutions for preserving privacy in participatory sensing whilst still permitting a desired level of engagement in the program, with some taken directly from networked computing strategies.

The first option is to provide some degree of anonymity for the user. It must be determined then, from whom anonymity is required, or rather, for the meaningful operation of the PS platform, for whom is identification required/permitted. It is widely acknowledged that users demonstrate different degrees of willingness in sharing data, depending on the relationship with the other party (or parties) involved.

Degrees of identity revelation maybe classed as:

• Completely anonymous • System Organisers/Network Operators o Requires secure end-to-end communications regardless of the number hops or network types utilised in the transmissions (e.g. Tor). • Selected peers/participants o A user/organiser defined subgroup, established based on certain criteria, such as predetermined trust or existing community group. • Other participants on the system o Identifiable to other users with access rights to the system. • Anyone able to eavesdrop given communications links somewhere along the network • Notionally hidden, but unsecured. • Open o Unrestricted publishing of identity linked with data contributions

Providing anonymity is not without its own implications. If not carefully designed, a system permitting anonymous contributions can be easily compromised if there is no means of verifying the quality and validity of the data. In such cases, it may leave organisers with no recourse to identify or manage misbehaving or malicious users. In this respect, the same tools that protect the privacy of the innocent also hide the identity of the malicious or criminal.

The common argument that is often posed in shifting the balance of privacy towards transparency is that some privacy must be sacrificed in order to ensure security. If this is indeed true and unavoidable, then certain questions immediately follow: to what degree must privacy be sacrificed; to whom is privacy to be sacrificed; and what level of trust can be assigned to this authority? Indeed, is it even possible to apply a threshold in trying to answer these highly debatable questions? Consideration must be given to the risk and implications associated with any subsequent abuses of this trust. So whilst a goal may be set for balancing privacy and security, according to some established value system, the viability of such thresholds only exist in as much as aggrieved parties have recourse to compensation from any breaches. Where this is implausible to guarantee, a more cautious approach would be to first question whether the emerging capability is actually increasing the degree of vulnerability of users without adequate protection and for insufficient return/reward for their participation.

From a practical perspective, a number of measures can be implemented at the design level, that provide users with varying levels of protection. Some of these include:

• Masking identity (utilising independent verification methods; allowing anonymous data contribution; simulating high participant density) • Masking location (data perturbation or reduced granularity) • Limited data release (sharing of aggregated or filtered rather than raw data)

Essentially, such methods rely on the existence or appearance of a large number of users within the system and within the specified location (k-anonymity), so increasing the difficulty with which a single user (or their data) may be identified. In this way, the system can compensate for malicious users (e.g. supplying misleading data); unreliable users (e.g. supplying incorrect/erroneous/low-quality data); collaborating users (e.g. to uncover identity or other restricted information about other participants; bias overall measurements; manipulate user reputations).

Self-surveillance describes the personal information that is captured, stored and potentially transmitted though the complicity of individuals. To combat the increased vulnerability to privacy breaches arising from self-surveillance and indeed the expected decreasing privacy, the concepts of Personal Data Vaults (PDV) and Personal Data Guardians (PDG) have been proposed as a means of giving users greater control over how their data is shared, whilst still making use of cloud infrastructure (Kang, et al. 2012). Self-surveillance applications relate more to measurement of biological parameters, activity and mobility. As such, whilst obviously of interest to the individual, there is also substantial interest from third-parties in being able to analyse and aggregate such data to deliver population-wide insights. There is a need then to balance the usefulness to the individual of such applications, whilst also being able to share some aspects of this data (agreeable to the user) with outside entities. The PDG serves as a trusted entity, with whom the user enters into a legal, fiduciary and confidential relationship (in a similar fashion to that with lawyers or doctors). In proposing PDG to act as trusted intermediaries, the flow of data is slowed, thereby preserving some degree of privacy.

Despite the advantages that PDVs seemingly provide, the privacy guarantee of a system that proposes secure storage in the cloud and transmission utilising many layers of communications infrastructure is difficult to ensure, particularly in light of many well publicised hacking and spying episodes. Two issues remain unresolved; the first is public perception of the degree of security available, whilst the second considers user behaviour in light of available security of privacy options and concern for associated risks. Investigating user perceptions of cloud computing security and data vulnerability in (Ion, et al. 2011), it is observed that a large degree of scepticism still exists impacting what users will store. There is also general acceptance that existing means for presenting Terms of Service (TOS) are largely ineffective, in that they are difficult to understand or generic and thus often ignored. As many as 51% of users don’t read online privacy policies, with most perceived as too long or complex and of those who read privacy policies, only 37% are able to gain the necessary information to decide whether or not to use the site (OAIC, Community attitudes to privacy survey 2013). This results in mismatched expectations of users as to their rights and the actual requirements of the service provider. Further complexity is introduced by changes across demographics and culture, in how privacy risk is perceived and trust of organisations assigned (Bélanger and Crossler 2011). Analysis of TOS for cloud services has also revealed a tendency for bias towards more detail regarding user obligations rather than the provider’s, with the authors recommending a legal framework (albeit in the US context) offering greater control and portability for the user for the management of their data (Kesan, Hayes and Bashir 2013). Ultimately, the effectiveness of any service guarantee is only as effective as one’s ability to detect contravening behaviour and the scope for compensation.

It must be considered whether the majority of users interact with these services naively or wellinformed. The significance of such factors is often merely assumed and only interpreted in terms of the effect on the total number of users, following which a range of privacy preservation measures are proposed in order to mitigate any detrimental impact on participation rates. In (De Cristofaro and Soriente 2013), the provision of adequate privacy protection is considered the single most important factor affecting the willingness of users to contribute data. Consequently, they propose a cryptographic system for Privacy-Enhanced Participatory Sensing Infrastructure (PEPSI), based on Identity Based Encryption and third-party generation of decryption keys (private key generator). They also acknowledge challenges in protecting query privacy from organisers; node privacy from network operators; and collusion attacks.

Reputation and trust

Trust management systems may be categorized as either rule-based or reputation-based (Yang, Zhang and Roe 2012). A rule-based system applies credential matching, based on credentials (certification), chain discovery (with importance placed on associated storage locations) and trust negotiation (protecting credentials, avoiding unnecessary exposure). Reputation-based trust management characterises user behaviour by collecting, distributing and aggregating assessments of user contributions in a way that may identify malicious behaviour. They describe the different stages of trust management as establishment of initial trust; observation of behaviour; and evolution of reputation and trust. Initialisation is always problematic, as there is little on which to base an applied trust level. Approaches have been proposed that draw on community ratings of new participants; however, this does not preclude other participants from providing biased or malicious reports.

The more conservative approach will allocate a low trust level to new users with a period of time for this reputation to be improved. The alternative is to assume trustworthiness and then downgrading the assigned trust level if warranted. In observing behaviour, anomaly detection methods may be applied to automatically detect potential misuse, by first classifying normal behaviour in a way that enables rapid detection of anomalous behaviour.

The impacts of these respective decisions needs to be quantified and related to the number of users in the system in order to determine the effectiveness and suitability of the associated trust management framework. This is particularly important when considering the concept of sharing reputations across communities, reputations on which other communities can then initialise their own trust levels for new users. This reaches back into questions of privacy, with identification being required across different domains. It also draws into question the reliability of trust management frameworks in one domain and their impacts on other domains. This may point to the need for a central trusted authority. Yet a distributed approach, applied with certain safeguards and agreed criteria, provides some protection against attacks on a single central repository of reputations.

Existing reputation models include: summation and average (aggregation of ratings to produce a single reputation score); discrete trust models (assigning labels to actions for ease of interpretability); and Bayesian systems (applying positive or negative ratings along with a probability distribution to determine reputation) (Reddy, Estrin and Srivastava, Pevasive 2010 2010). The first is susceptible to bias if the number rating is heavily skewed towards one side, while discrete models (non-mathematical) do not inherently support statistical inference of reputation confidence. Bayesian systems, however, offer the ability to establish a measure of confidence in the reputation score, by determining the probability that the expectation of a distribution (which determines the reputation) is within a certain error margin. It also allows for weighting of new and old measurements, effectively applying a forgetting factor, to more effectively update reputations giving preference to either more recent or historical behaviour. Another system evaluates a number of different attributes that are combined to determine reputation (Abdulmonem and Hunter 2010). These include: direct rating between members; inferred trustworthiness; rating of observations; contributor’s role/qualifications; quality of past contributed data; completed training programs; amount of contributed data; frequency of contributions.

In a similar fashion, (Yang, Zhang and Roe 2012) proposed a combination of direct information (objective evaluation based observable parameters), personal information (personal information which infers a degree of accountability if accurately provided) and indirect reputation (subjective measures such as community and organiser’s trust). As mentioned earlier, the last criteria is problematic and thus needs to be weighted accordingly, while personal information can similarly be weighted according to the level of detail supplied and its verifiability. In fact, this challenge was reflected in their experiments, observed in a small number of participants not willing to supply personal details.

In (Christin, Roßkopf, et al. 2012), the user reputation is cloaked utilising cryptographic primitives. Similarly based on k-anonymity, in (Huang and Kanhere 2012) a trusted reputation server is utilised in a manner that masks the reputation in transit so as to reduce prospects of linking user identity to reputation by external parties, whilst claiming greater flexibility in reputation assignment and accuracy. In (Wang, et al. 2013) anonymity and reputation challenges are balanced through the separation of the data reporting and reputation update processes. ...

4 Privacy vs Transparency

A commonly understood definition of privacy is the right to have one’s personal environment (and information contained therein) protected from intrusion. In this way, it is also interpreted as the right to be left alone (Brandeis and Warren 1890). Indeed a focus of this view by Brandeis and Warren in 1890, was in the provision of compensation of suffering resulting from privacy invasion, and so drew attention to dignitary harms (such as reputation) (Kesan, Hayes and Bashir 2013). Alternatively, in the modern context, it can be defined as control over personal information (Shilton and Estrin, Ethical Issues in Participatory Sensing 2012). It implicitly draws a contrast between what constitutes private space and public space and the subsequent delineation of private information versus public information. It also draws into question the status of private activity that necessarily crosses over to public spaces. To appreciate the significance of privacy protection, the function of privacy in a societal context “protects situated practices of boundary management through which the capacity for self-determination develops,” while “conditions of diminished privacy also impair the capacity to innovate” (Cohen 2013).

With specific reference to participatory sensing, privacy has been interpreted as “the guarantee that participants maintain control over the release of their sensitive information” including “protection of information that can be inferred from both the sensor readings themselves as well as from the interaction of the users with the participatory sensing system.” (Christin, Reinhardt, et al. 2011). Formal definitions have been established with reference to what is protected by law. As such, it varies in differing degrees according to the jurisdiction to which the law is being applied. According to the Victorian Government Privacy Commissioner, the common element is the ability to keep “your own actions, conversations, information and movements free from public knowledge and attention.” This can be interpreted differently in the context of the home, workspace or other environments. Importantly, associated legislation only covers certain types of information and activities. It is important to recognise that protections tied explicitly to identity are inadequate, as enough consolidated information may be used to identify an individual’s activities, locations and relationships and in that way leaves them vulnerable to exploitation, without ever requiring the establishment of identity (Wright, et al. 2009). To appreciate the legal boundaries applied in privacy law, it is necessary to acknowledge that it is different from both confidentiality and secrecy. Confidentiality in legal terms relates to information given under the obligation that it not be shared further. Such information is not usually publically available or easily accessed. Secrecy relates to the prevention of information becoming known, where such action may assist in privacy protection or in serving the public interest.

Limitations of existing US legal frameworks to effect genuine protections through combinations of privacy, data protection and communications laws, have been explored in (Bast and Brown 2013). In light of the inability to singularly protect privacy in that context, a combined approach is recommended that employs education, empowerment and enforcement (where available) (Thierer 2013).

Ethics in Design

Ideally, privacy safeguards embedded in the system design should give users the necessary control over the collection and release of their data. However, the personal nature of PS as well as the proximity to other persons not actively participating in the PS program raises certain complications. In this respect, it is important to consider alongside privacy, the notions of consent, equity and social forgetting (Shilton and Estrin, Ethical Issues in Participatory Sensing 2012).

Balancing the need for privacy and proposed means for satisfying it raises further questions about the fundamental ethics being applied and about the strength of those ethical principles when considered in the light of seemingly necessary compromise. When such principles are applied at the design level, applied haphazardly, or not applied at all, the implications for the user are likely to be an increased vulnerability from having shared revealing data and for the organisers, exposure from basing released information on inaccurate and possibly malicious data.

Design objectives can be easily placed in opposition as a means of more easily arriving at a certain outcome. For example, privacy versus accuracy has been proposed as such a compromise, where in order to preserve some degree of privacy, it has been suggested to perturb data supplied to the system in order to mask the real data that reveals perhaps the actual location or actual time at which samples were collected. Consideration must be given to how this is achieved. If the granularity of the data is merely reduced, it is more a reflection of the preparedness of the user to supply a certain level of detail. Therefore, it is not the accuracy of the data in question, but rather the quality. Transparency in the system ensures that the error margin or data granularity is known, such that subsequent operations on this data can factor in the associated data quality. This is different from intentionally supplying incorrect data, albeit with the same intention to mask activity or identity. In this instance, there is little recourse to separate legitimate users from malicious users, as both courses of action seek to bias the data pool. Social forgetting is raised in (Shilton and Estrin, Ethical Issues in Participatory Sensing 2012) as another element of the system necessary to reflect the broader principles at stake. PS presents the possibility for a historical archive of activity. The social media generation are slowly becoming aware of the longer term impacts of seemingly frivolous sharing of photos or posts, as what may be considered private moments suitable for perhaps a circle of friends is not seen in the same light by current or potential employers. As many as 17% of Australians regret something they have posted on a social networking site (increasing to 33% for young people) (OAIC, Community attitudes to privacy survey 2013). It has been suggested that such long-term recording and retention, reduces the capacity for a fresh start, or to be able to recover from one’s mistakes. In the US, this has been referred to as the “Eraser button” approach, whilst a similar EU version refers to a “Right to be forgotten” (Thierer 2013). As raised in the analysis of reputation management, to what extent does recent activity predict future behaviour compared with more distant activity? In that context the challenge was, rather, how to establish reputation quickly in the absence of historical data. Also important, is the duration of data and activity retention, and associated weighting applied in determining other factors such as reputation. In this instance, it becomes a factor for the user in establishing a trust that they (and their data) will be treated fairly and justly (Shilton and Estrin, Ethical Issues in Participatory Sensing 2012). Mechanisms exist within law to address such issues, so measures must surely be applied to extend such a capacity to emerging technologies that in principle seek to reflect social systems.

System transparency also applies where user consent is concerned. It is essential that where users are relied upon to actively participate in the sensing process, adequate consent be obtained for the utilisation of associated data contributions. This is challenging in an environment that by its nature encroaches upon people’s personal environments and furthermore by the degree of consent which may be obtained. Active and informed consent is essential if any sort of parity between users and organisers is to be established. As noted earlier in the challenge of overly complex Terms of Service Agreements, it is difficult to infer the level of understanding reached by a user in order to obtained informed consent. However, the level of consent can be qualified and ranges from:

• Passive consent – where utilisation of the platform implies consent given, and so utilised by organisers to extract content at will (so called ‘soft surveillance’ (Shilton and Estrin, Ethical Issues in Participatory Sensing 2012)). • Active consent – requires some action by the user to acknowledge agreement (standard TOS agreement), but does not necessarily indicate understanding, rather places responsibility upon the user. • Qualified consent - contingent on circumstances specified by users or guarantees provided by organisers, with the system operation reflecting selected preferences. • Informed consent – effective communication of usage conditions and implications, with consent elicited in a manner that reflects the level of understanding and agreement.

The extent of the implications and subsequent agreement required still needs to be explored in order to establish the level of risk that applies to each of the stakeholders. This can be extended to include a more thorough analysis of demographics within stakeholder groups, particularly where it concerns more vulnerable participants. Where the implications impact only the individual user, the direct and active consent suffices. However, where sensing applications increasingly extend to environments shared with others (be they private or public, home or work) the same mechanism may no longer be adequate. The system may protect the privacy of the user, but what of bystanders who may have no knowledge of sensing taking place, no knowledge of implications and potentially different views on the conditions for qualified consent. Is the user in a position to take responsibility for the privacy of people within the vicinity of the sensing system? The significance of these flow-on effects is dependent on the type of sensing taking place. In any case, due consideration must be given to these impacts in the design and in communicating any vulnerabilities to the user.

In order to establish trust, organisers need to be able to provide assurances of how the data is used, whilst system designers embed related functionality within the design. Where insufficient trust exists between users and organisers, users can still have the option of reducing the granularity of data shared or applying some other means of anonymisation (such that the supplied data may still contribute something meaningful).

In the context of citizen engagement and promoting interactive government, applying such procedures is a means for demonstrating transparency and for growing trust. The functionality of the PS platform then enables users to better understand the significance of risk factors as well as the measures applied by organisers (e.g. government) to mitigate such risks. It is ultimately the responsibility of the system operator to adequately inform users, particularly in the absence of adequate risk mitigation and vulnerabilities being exposed.

In determining the viability of such deployments, it must be established whether the introduction of such technology platforms is potentially increasing the vulnerability of particular demographics, or whether through careful design and deployment it acts to reduce such vulnerabilities. Whilst as many as 60% of Australian youth acknowledge the privacy risk of personal information and online services (OAIC, Community attitudes to privacy survey 2013), this still leaves too large a number unaware of the implications associated with what they perceive as ordinary online activity. If it is not possible at the development stage to mitigate these risks, than it may still serve this purpose by providing effective and explicit information transfer relating to the data sharing risks.

User perceptions

Requiring further investigation is the existing knowledge level of such issues as well as the relationship of risk awareness to participation rates.

Research by the Australian Communications and Media Authority (ACMA) has found increasing concern regarding security and privacy amongst mobile and online platform users. This is reflected in user online behaviour, where users commonly employ different digital identities (transactional, social and personal) as a proactive means for restricting access to personal information. In these different scenarios, users were more or less willing to contribute detailed identity information, responding to information demands by going elsewhere for the same service, or even providing misleading information (defensive inaccuracy). In this way, some users could be found exercising their own balance of data integrity and pseudonymity (ACMA, Digital footprints and identities Community attitudinal research 2013). At the same time, whilst nearly 40% of respondents were confident they could effect their desired privacy level through available privacy setting options, another 40% were only hopeful that this was the case, with remaining number holding a negative view.

More than two-thirds were concerned about the level of information shared when using location-based services. Other important findings, included: increased usage does not translate to greater understanding; risks are poorly understood; knowledge of risks and available protections were poor; and users desired more information to assist them to protect personal data (ACMA, Here, there and everywhere—Consumer behaviour and location services 2012).

There was found to be substantial trust in government and established banks for securing transactions and using them only for legitimate purposes. Significant trust and responsibility for managing and policing digital identity and breaches was still placed in government. The distinct roles of individual stakeholders have also been acknowledged, with: individuals having primary responsibility for protecting their personal information; service providers and industry operators responsible for enabling a secure environment; and government providing information and education services, raising awareness and enforcing safeguards (ACMA, Here, there and everywhere—Consumer behaviour and location services 2012). Indeed, high standards of transparency in data handling are also universally expected from all organisations, as well as demands for notification of handling breaches and protection and management practices (OAIC, Community attitudes to privacy survey 2013).

Similar studies of mobile user attitudes to privacy conducted by other agencies across Australia and around the world have also revealed concerns for users of mobile and online platforms. This includes apps that do not intrinsically incorporate data sharing.

GSMA studies of mobile user attitudes to privacy conducted across the UK, Spain and Singapore, with follow-up studies in Malaysia, Indonesia, Mexico, Columbia and Brazil, found that approximately half of the respondents expressed concern about sharing personal data whilst using mobile online services or apps, with over three quarters subsequently very selective about who they shared such information with. Before sharing location information of mobile phones, as many as 81% of people wanted their permission to be requested. It was also noted that most users took less security/privacy precautions when using mobile devices compared with PC use. Interestingly, 47% of users would change their usage behaviour if apps were found to use their personal information without consent, whilst 41% would limit their use (FutureSight 2011).

The Office of the Australian Information Commissioner (OAIC) survey on community attitudes to privacy, revealed some user awareness of privacy risks associated with online activity (OAIC, Community attitudes to privacy survey 2013). This naturally translates (in some degree) to mobile apps. Some of the key findings are noted here.

With respect to personal information, online services are viewed as the biggest privacy risks (including ID fraud and theft, followed by data security). Concerns about handling of personal information are evident in dissatisfaction with such data being sent offshore (with 90% expressing concern). This certainly raises questions about data ownership and the ability to guarantee associated protections according to how this data is handled (including communication and storage).

As many as 78% of Australians dislike having their activities monitored covertly on the internet. Some awareness of this activity exists, with around half respondents of the view that most websites and smartphone apps collect user information. Of those aware of such risks, more are actively seeking to protect their information, with 90% at times declining to provide personal information, 80% first checking website security, 72% clearing browser histories and 62% not using smartphone apps because of related concerns and around 30% providing false names or details.

There is seemingly a point at which user demands for privacy are relaxed or traded, with over a quarter of the population prepared to provide personal information in exchange for improved service or reduced prices.

How much then do breaches of trust by system operators or government affect user perceptions and ongoing behaviour? One third of those surveyed experienced problems with the treatment of their personal information. But while there is a better understanding of ombudsmen schemes, many still aren’t aware of reporting or complaint procedures. More trust is placed in government organisations than private companies (with only health and financial institutions exceptions). Due to concerns about the handling of personal information, 60% decided not to interact with a private company. No figures were reported regarding continued engagement with given organisations following a data breach. Efforts to embed privacy with associated guarantees, means of retribution or compensation for data breaches and adequate transparency of data usage all surely contribute to building or rebuilding trust  between different stakeholders. In this way, robust technological and policy frameworks for emerging ICT are essential. Participatory sensing is one such capability that occupies a unique space that can mutually benefit users and organisers, if implemented accordingly. Implemented haphazardly, it simply reflects the existing flaws and lopsided exchange dynamics that often exist respectively between users, commercial operators and governments. It goes one step further than straight forward app development principles. Likewise, it extends beyond activities of disengaged mass-surveillance, principally because it actively engages the user to contribute data and collection resources. So, the respective parties enter into an agreement or contract for the exchange of information. The user is only able to provide informed consent if they are made adequately aware of the system’s operation and their associated role and rights in interacting with the system.

Key points

• Privacy is one’s control over access and flow of their information • Legal protections are limited to specific circumstances • Ethical means for privacy protection offer transparency with respect to data accuracy and embed privacy in the design • System transparency and verifiable privacy measures can build trust • Social implications warrant mechanisms for managing data history • Informed user consent needs to be the goal and supported by effective communication of risks • Users will utilise various means for protecting privacy, according to their level of awareness and evaluation of risks

Equity

'Modern fiduciary liability: the sick man of equity?' by Dyson Heydon in (2014) 20(10) Trusts & Trustees 1006-1022 argues that

 Some think that fiduciary liability has shrunk, is shrinking and should be shrunk further. In particular, it has been said that traditional equitable duties of skill and care are not fiduciary, and, indeed, are not even equitable. It has also been said that no positive duty can be fiduciary. The article contends that these trends conflict with established authority, are unsound in principle, and have undesirable effects in practice. 

Heydon begins by stating

 Czar Nicholas I of Russia is a potentate on whom history has not looked kindly. Almost no-one has ever stood to the right of him, and he has correspondingly few supporters. Every time he drifted into the pages of Tolstoy, the author let fly. Things have not improved since. Now his reputation is at its lowest. For President Putin has selected a portrait of his predecessor for visitors to gaze at as they wait in an antechamber before an audience. But he did utter one memorable phrase that provides the theme for this lecture. 

In 1853 Czar Nicholas I had a celebrated conversation with Sir Hamilton Seymour, the British Ambassador to St Petersburg. He broached the ugly subject of dismembering the Ottoman Empire. He remarked:

The affairs of Turkey are in a very disorganised condition. We have on our hands a sick man – a man gravely ill. It would be a grave misfortune if one of these days he slips through our hands, especially before the necessary arrangements are made.

These words were unfortunate, for the Czar soon after succumbed, in the prime of life, to an attack of influenza, shortly before his own Empire lost the Crimean War to a group of allies which included Turkey. 

It was true that by the time the Czar spoke, the rulers of the Ottoman Empire had had to endure, almost every decade, the loss of some additional province in Europe, Africa, or Asia or some humiliating peace treaty or both. The process lasted another seven decades. Every so often the Sublime Porte would default on its loans from foreigners and enter a condition of national bankruptcy, as the process of entering new loans simply to pay the interest on continuing loans reached the conclusion which our own adoption of that technique may soon result in. The world called Turkey “the sick man of Europe”. Innumerable cartoons portrayed the sultan as emaciated, enervated, addicted to the hookah and the harem, clad in primitive looking robe and fez, worn out by vice. These judgments were short sighted. A regime which for centuries had kept both the Balkans and the Middle East under some not wholly inhumane control deserves respect. For there were frightful consequences for the world when the Balkans and the Middle East fell out of control. The sultans and their advisers asked themselves:

Are we on a downward path to inevitable extinction? Or do these setbacks strengthen the Empire by making it more manageable?

In hindsight the second question can probably be answered “Yes”, even though the servants of the Empire were only getting it into a fit shape to fall into the hands of its gravedigger, Mustafa Kemal Ataturk.

Similar questions arise about modern fiduciary liability. For this conference, centred on trusts, they are crucial, because the trustee is the archetypical fiduciary. Is fiduciary liability so sick that its life will soon move peacefully to its close? Or will it, by becoming smaller, also become leaner and more effective? Or will its greedy and expectant heirs—contract, tort, restitution, and, most insatiably greedy of all, statute—, together with the agitation of their academic paladins, cause it to be torn apart by judicial violence?

Heydon concludes

Assessing the health of that body of equity which controls fiduciaries is not easy. If some of what is said in the theses described above is correct, it is already dead. But assessing whether it is actually dead, or even dying, would depend on the happening of various events which have not yet happened. One is a thorough examination, by counsel and court, of both the validity and the utility of the five theses referred to above. At least so far as counsel were concerned, the authority which came closest to this examination is Mothew’s case. But there has not been any post-Mothew examination of the problem in Australia. In the course of that examination, many questions will arise. What did Millett LJ mean by “loyalty”? What did he mean by “fidelity”? What did he mean by “good faith”? What earlier authorities were inconsistent with his analysis? How were they to be dealt with? How could they be dealt with? Why is it that a duty of “loyalty” or “fidelity” does not create strict liability? 

Other questions will arise in relation to the other theses. But there is one fundamental issue to be confronted. It arises in relation to the topics referred to in this lecture. It also arises in relation to other important topics this lecture has not specifically dealt with. One is the courts’ recognition of the power of fiduciaries to contract out of what would otherwise be their obligations. Another is the claim that the generous rules about causation and remoteness in relation to the reconstitution of trust funds do not apply in suits for equitable compensation in relation to other breaches of fiduciary duty.

It is difficult to judge whether standards of fiduciary honesty, and standards of fiduciary care, skill and diligence have risen or fallen in the last century. But it is easy to conclude that modern standards are not high. That is a factor which ought to weigh strongly against any narrowing of the fiduciary regime. For to narrow the fiduciary regime not only reduces the remedies available to principals in particular instances. It also weakens the deterrent effect of the law in relation to future conduct. Thus, writing in criticism of Mothew’s case, Getzler said:

The prophylactic pressures of equitable procedure and remedy as applied to the loyalty duties may have point even in the sphere of duty of care; the stringent rules of causation, for example, are designed to put deterrent pressure on the fiduciary to reach a high standard where proof of misfeasance may be difficult to gather.

What will happen if the fiduciary regime withers or even dies? Are those owed duties by fiduciaries, as a class, likely to be better off if that takes place? Not in my opinion. That is why the signs of continuing or reinvigorated life in the fiduciary regime should be encouraged. The advent of new heirs to the fiduciary empire must be resisted more successfully than the Ottoman Empire resisted its would-be heirs—Greeks, Serbs and other Slavs, Arabs, and Ataturks.

STEM Benchmarking

The Office of the Chief Scientist Benchmarking Australian Science, Technology, Engineering and Mathematics report [PDF] comments

Science, technology, engineering and mathematics, referred to as STEM, are central to our future because of their role in securing Australia’s competitiveness in a rapidly changing world. The Prime Minister, the Hon. Tony Abbott MP, acknowledged this on 11 June 2014, when he said, ‘… science is at the heart of a country’s competitiveness, and it is important that we do not neglect science as we look at the general educational and training schemes’.

In view of the central importance of STEM, we need to know how we perform. We need to get ‘a fix’ on our performance—not an easy one, against ‘the world’, but a more challenging one, against nations that, like us, are essentially free-market economies with serious science engagement. We often depict Australia as ‘punching above its weight’ in research performance, with about 3 per cent of research outputs from 0.3 per cent of the world’s population. But approximately 90 per cent of all STEM research publications are attributed to roughly 15 per cent of countries and 90 per cent of citations are attributed to approximately 13 per cent of countries. Where we stand relative to ‘the world’ is of marginal value only, serving mainly to direct our attention from where it should be, which is on how to improve.

STEM is a global enterprise. As nations with which we collaborate and compare ourselves take planned, often urgent, action to improve their STEM base, we must be alert to the changes and decide what we ourselves want to do. In order to make wise choices, however, we need to know the baseline from which we start and have a view about where we want to be within a reasonable time.

This report provides insights into where we are and will help us decide what we should do. As an analysis mostly at a high level—signposts in kilometres not metres, let alone centimetres—it is intended to highlight performance and trends that might warrant further investigation, prompt questions for government and contribute to discussion on the future shape and scale of Australian STEM.

Chapter 4 of the report

examines the number of Patent Cooperation Treaty patent applications and triadic patent families filed by Australian inventors compared with inventors from other countries. 

It states - 

4.1 MAIN FINDINGS

• The number of Patent Cooperation Treaty applications and triadic patent families filed by an Australian inventor has fallen steadily in recent years. PCT applications have fallen by 22 per cent from their peak in 2005; triadic applications have fallen by 45 per cent from their peak in 2000. 

• The number of PCT applications and triadic patents has increased for all the comparator countries other than the United Kingdom. 

• The number of Australian PCT applications with a foreign co-inventor increased between 2002 and 2011. Despite this, the proportion of Australian PCT patents filed with an international co-inventor in 2011 was lower than that for most of the comparator countries, including all the European countries.

4.2 BACKGROUND

Patent systems have an important role in stimulating technological innovation by providing legal protection for intellectual property and disseminating useful technical information (Merrill et al. 2004). This facilitates technology transfer and the commercialisation and diffusion of knowledge. The patent system has clear economic objectives, but it also leads to non-economic benefits by increasing innovation and opening up access to new technologies (Advisory Council on Intellectual Property 2011). Patents can demonstrate a country’s capacity or willingness to exploit knowledge and translate it into potential economic benefits (European Commission 2012). They have been used to track knowledge diffusion across countries, regions, technologies and companies and to assess the international reach of innovative activities (Dernis 2007). Patent counts have been described as ‘measuring something above and beyond R&D inputs, a creation of an underlying knowledge stock’ (Hall et al. 1986).

4.3 TERMINOLOGY

Like many countries, Australia issues national patents through a national patent office, thereby protecting inventions developed within national boundaries. Local patents represent only a small proportion of total Australian patents, however: a better benchmark for innovation with international ramifications is a comparison of applications under the PCT and triadic patent families. For the purposes of this report, the nationality of a patent is considered to be the inventor’s country of residence.

4.3.1 The Patent Cooperation Treaty

Australian patents provide protection within Australia. To obtain protection in other countries inventors can either file separately in individual countries or file a single international application under the Patent Cooperation Treaty, which is administered by the World Intellectual Property Organization. A patent registered under the PCT is the closest thing to an international patent and protects inventions in over 180 countries.

Both applicants and patent offices in PCT member states benefit from the uniform formality requirements, the international search and preliminary examination reports, and the centralised international publication provided by the PCT system (World Intellectual Property Organization 2010).

4.3.2 Triadic patent families

Another measure of international innovation is the triadic patent family—a set of patents protecting the same invention and filed at the European Patent Office, the Japanese Patent Office and the US Patent and Trademark Office. It has been suggested that triadic patent families provide an improved measure of innovative performance and technological change at the international level (Dernis 2003). This is because triadic patent families cover a single invention and the resultant indicators are less influenced by individual patent offices’ rules and regulations and patenting strategies (Dernis 2007).

4.4 DATA SOURCES

The OECD Patent Database, created by the Directorate for Science, Technology and Industry, covers patents filed under the PCT, and counts are based on data received from the European Patent Office. Only the original application is counted, thus avoiding double-counting of the same invention. The EPO Database provides good coverage for both OECD member and non-OECD member economies from 1981. PCT applications are presented according to the region of the inventor’s residence and the priority year.  The OECD Patent Database also covers triadic patent families. Data on triadic patent families are mainly derived from the EPO’s Worldwide Statistical Patent Database (PATSTAT).

4.5 COUNTRIES ANALYSED

As in the previous chapter, two groups of benchmarking nations were identified for analysis—countries at stages of development similar to that of Australia and with similar governance systems (the United States, Canada and selected European nations), and selected countries in the Asia–Pacific region.

This chapter compares Australia with the 11 European comparator countries (Austria, Belgium, Denmark, Finland, France, Germany, Ireland, Norway, Sweden, Switzerland and the United Kingdom), North America (Canada and the United States), and countries in our region (China, Japan, New Zealand, South Korea and Singapore).

4.6 PATENT APPLICATIONS IN AUSTRALIA AND ELSEWHERE

4.6.1 Australian patent applications, 1981 to 2011

In 2012, 26 358 ‘standard patents’ were filed in Australia—10 per cent by Australian residents and 90 per cent by foreign applicants (IP Australia 2013). PCT applications accounted for 72 per cent (19 107) of the total. US residents filed the highest number of Australian standard patents (11 376), followed by Japan (1746) and Germany (1594). The number of PCT patent applications by an Australian inventor increased from 172 in 1981 to a peak of 2092 in 2005 (see Figure 4-1). The most rapid growth was between 1996 and 2005; this was followed by a 22 per cent decline from 2005 to 2011. Triadic patent families form a much smaller group than PCT patents (see Figure 4-2). In 1985 there were 153 triadic patents with an Australian inventor, compared with 357 PCT patents. By 2000 the number of triadic patents had increased to 380 (a 148 per cent increase) and PCT patents to 1755 (362 per cent). After 2000 triadic patent families began to decline (by 45 per cent from 2000 to 2011), whereas PCT applications continued to rise until 2005. The decline in PCT applications after 2007 might in part be a reaction to the global financial crisis. The Department of Industry reported an 11.6 per cent decrease in Australian standard patent applications (that is, applications filed in Australia) from 2007 to 2009. It attributed this to economic disruption caused by the GFC (DIISR 2012). By contrast, the decline in triadic patents started in 2001, six years before the GFC began.

4.6.2 Australia’s patent applications and those of comparator countries, 2002 to 2011

With the exception of the United Kingdom and New Zealand, the number of PCT applications filed by each of the comparator countries increased between 2002 and 2011 (see Figure 4-3 and Table 4-1). Australian applications declined by 7 per cent, compared with increases of between 10 and 50 per cent in many of the European comparator countries. Australia’s rank within the comparator countries decreased from ninth in 2002 to eleventh in 2011, with Switzerland and China overtaking Australia. The United States had the greatest number of PCT applications in both 2002 and 2011. By 2011, however, the gap between the United States and its nearest competitor, Japan, had decreased. China’s PCT applications grew by 1194 per cent between 2002 and 2011, from 1316 to 17 027. Of the Asia–Pacific countries analysed, PCT patent activity in China was well behind that of Japan but ahead of Korea, Australia, Singapore and New Zealand. Asian nations have led the growth in patent applications, with China, Korea, Japan and Singapore increasing the most. The number of Australian triadic patent families declined by 29 per cent between 2002 and 2011, from 294 to 209. Among the 19 countries analysed in this chapter, Australia had the fifth lowest number of triadic patent families in 2011 (see Figure 4-4).

4.6.3 PCT applications in Australia and comparator countries after the global financial crisis

After the global financial crisis global PCT applications fell by 4.5 per cent in 2009 (World Intellectual Property Organization 2010), the first such decrease in three decades (Mara 2010). In some ways the GFC rearranged the international patent landscape, resulting in large decreases in applications in many Western nations but growth in many Asian countries. China, in particular, experienced a large increase in PCT applications between 2008 and 2009, at 29.7 per cent (see Table 4-2). The countries that experienced the greatest decrease in PCT applications immediately following the GFC were Ireland (–11 per cent), Denmark (–10 per cent), the United Kingdom (–6 per cent), Sweden (–5 per cent) and the United States (–4 per cent). Although Australia’s PCT applications increased by 1 per cent between 2008 and 2009, the number declined again in 2010 and 2011, continuing the fall from the 2005 peak (see Figure 4-1).

The overall patenting trend for Australia before and after the GFC was one of declining PCT and triadic patent activity. This contrasts with most of the European countries analysed: all but the United Kingdom achieved overall growth in PCT patent applications from 2002 to 2011, despite a general slowdown in the post-GFC years.

4.6.4 International collaboration in PCT patents, 2002 and 2011

Globalisation trends are reflected in the internationalisation of R&D and innovative activities (Guellec & Potterie 2001). Cross-border co-invention represents international collaboration in the inventive process (Dernis 2007). In 2011 the share of Australian PCT patent applications filed with a co-inventor located abroad was 17 per cent (see Figure 4-5). Cross-border co-invention was lower in Australia than in all the analysed European countries, New Zealand (23 per cent), India (29 per cent), Canada (31 per cent), Singapore (33 per cent) and Indonesia (52 per cent). Australia’s cross-border co-invention did, however, increase from 14 per cent in 2002 to 17 per cent in 2011.

4.7 COLLABORATION BETWEEN BUSINESS AND RESEARCH INSTITUTIONS ON INNOVATION

Australia’s low patenting rates reflects the poor collaboration between business and research in the public sector (Figure 4-6). Australia has the lowest level of business to research collaboration among the comparator countries. In OECD analysis of innovation active businesses, out of a total of 33 countries, Australia ranks 32nd on business to research collaboration for small to medium enterprises (SMEs), and 33rd for large firms (OECD 2011b). Similar analysis by the ABS, for countries for which data are available but including businesses with 0–9 employees, improves our position to 15th for SMEs and 21st for large firms. Only 13.7 per cent of our large firms collaborated with research organisations: slightly above the level of collaboration—9.6 per cent—by our SMEs (Department of Industry 2013).

4.8 CONCLUDING REMARKS

Australian industry is dominated by small to medium business enterprises rather than R&D-intensive multinational enterprises. This industry structure probably influences Australia’s patenting profile. Although business funds large amounts of R&D (see Chapter 5), the outcomes of this R&D have not resulted in large numbers of patentable inventions. The low proportion of researchers in businesses (compared with higher education—see Chapter 8) and the low level of business to research collaboration might further limit Australia’s capacity to produce new intellectual property with commercial potential. The majority of patents applied for at the Australian Patent Office are from international patent holders: Australia imports more patentable intellectual property than it produces. These findings complement those in Chapter 2. Australia has a low to mid-range level of performance in patenting compared with European comparator countries and much lower than the larger economies of the United States, Japan and China. Our performance is poor—particularly when viewed against the dynamic patent activity among Asian nations.

Self-Defence in Tasmania

The Tasmanian Law Reform Institute - counterpart of the ALRC and NSWLRC - has released an issues paper as part of its Review of the Law Relating to Self-defence.

The Institute comments that

In September 2011, the Director of Public Prosecutions wrote to the Attorney-General to raise concerns that the current Tasmanian law on self-defence, as contained in s 46 of the Criminal Code (Tas), was too lenient and was out of step with modern standards. In November 2012, the Attorney- General requested that the Tasmania Law Reform Institute conduct a far-reaching examination of the law in Tasmania relating to self-defence and provide advice as to whether the law should be amended.

In relation to self-defence, this Issues Paper considers whether the current law of self-defence in Tasmania should be retained or whether any amendments should be made to the existing law. It considers the circumstances in which a person is lawfully entitled to use force (including lethal force) in defence of themselves or another person. In cases where the accused’s perception of the situation corresponds with the actual situation, this may appear a relatively intuitive and straightforward assessment. However, greater difficulties arise when there is a difference between the actual circumstances and the circumstances as the accused saw them. There is scope for considerable debate about the extent to which a person can rely on a mistaken belief for the purposes of self-defence, and whether the reason for the mistake has a role to play in making this assessment.

This is the particular concern addressed in this Paper. It considers whether a person should be able to rely on:

• a mistake that results from a delusion arising from a mental illness; 

• a mistake that was a result of psychological factors personal to the accused that meant that they were more sensitive to threats of danger than the normal person; or 

• a mistake that arises from self-induced intoxication.

The Paper also considers whether it is desirable to ensure consistency between the defence of selfdefence and other defences such as prevention of certain crimes and defence of dwelling-house. To this end, it examines issues that arise in relation to defence of property, and the special status the home enjoys as a place of sanctuary. It considers whether the defences of prevention of crime in s 39 and defence of dwelling-house in s 40 of the Criminal Code might more appropriately be dealt with in a consolidated defence provision or whether the defences involve unique considerations that warrant a stand-alone provision.

The Institute's questions are

Q1  Should the current law of self-defence contained in the Criminal Code (Tas) s 46 be amended to introduce an additional/different requirement of reasonableness or should the current formulation be retained? Please provide reasons.

Q2  If the current test for self-defence is retained, should the Criminal Code s 46 be amended to reflect the wording of the Model Criminal Code or should the current wording be retained? Please provide reasons.

Q3  If the Criminal Code (Tas) s 46 is amended to include a requirement that the accused’s perception of the circumstances be based on reasonable grounds, which model should be adopted:

(a) a model based on the common law position;

(b) a model based on the Northern Territory (non-Schedule 1 offences) position;

(c) a model based on the Western Australian position;

(d) a model based on the Queensland and former Tasmanian position;

(e) another model?

Q4  Should all evidence of any abnormality in an accused’s mental condition be excluded from consideration in cases of self-defence under the Criminal Code (Tas) s 46?

Q5  Should the Criminal Code (Tas) be amended to provide that evidence of delusions insufficient to support the insanity cannot be relied on for the purposes of self-defence?

Q6  Should the Criminal Code (Tas) be amended to provide that evidence of delusions can be relied on for the purposes of self-defence, with a successful argument of self-defence resulting in a qualified acquittal under s 16(3) (that is, not guilty on the grounds of insanity)?

Q7  Should evidence of mental illness be admissible for the purposes of self-defence and, if successful, result in a complete acquittal? In the case of delusions, should evidence of delusions insufficient to support the insanity defence go the issue of self-defence?

Q8 Should evidence of intoxication be considered for the purposes of self-defence? In particular should it be considered:

(a) for the purpose of assessing the accused’s belief in the need for self-defence? This would mean that the accused’s state of intoxication could be taken into account for the purposes of determining whether the accused had a belief in the need for self-defence.

(b) for the purpose of determining the circumstances as the accused believes them to be? This would mean that the accused’s use of force would be assessed on the basis of the circumstances as the accused believed them to be, even if the accused’s perception of circumstances arose from a drunken or drug-induced mistake. 

(c) as a physical characteristic of the accused in determining whether the response was reasonable? This would mean that the accused could rely on their reduced capacity to respond attributable to intoxication in assessing whether the response was reasonable.

(d) if a requirement of reasonableness is inserted in relation to the accused’s belief in the need to use defensive force (see Q1), for the purposes of assessing whether there were reasonable grounds for the accused’s belief or for the purposes of assessing if the accused’s belief was reasonable in the circumstances?

This would mean that the assessment of the reasonableness of the accused’s belief in relation to the necessity of using defensive force or the assessment of whether there were reasonable grounds for the accused’s belief would be made on the basis of the circumstances of the particular accused, including the accused’s state of intoxication.

Q9 Should intoxication (including drug induced psychosis that does not amount to a mental illness) that is caused by methamphetamine use be treated differently for the purposes of self-defence in the Criminal Code (Tas) s 46 from intoxication arising from other causes?

Q10  Should drug-induced psychosis that falls within the definition of a mental disease be treated differently for the purposes of self-defence in the Criminal Code (Tas) s 46 from mental illness arising from other causes?

Q11  If restrictions are placed on reliance by an offender on an intoxicated mistake for the purposes of self-defence, should an exception be made for offenders in the case of intoxication that is not self-induced?

Q12 Should reforms be made to the criminal law in Tasmania to facilitate the reception of evidence of family violence in relation to the defence of self-defence?

Q13 Should reforms be made to the criminal law in Tasmania to specify that imminence is not necessary where self-defence is raised in the context of family violence?

Q14  Should reforms be made to the criminal law in Tasmania to provide for jury direction where self-defence is raised in the context of family violence?

Q15 Should a partial defence of mistaken self-defence be introduced in Tasmania if the Criminal Code (Tas) s 46 is amended by the insertion of a requirement of reasonableness in relation to the accused’s perception of the circumstances? Or is mistaken self-defence a matter that can be appropriately dealt with as part of the sentencing process?

Q16 Should a partial defence of excessive self-defence be introduced in Tasmania? If so, should it be introduced only if the Criminal Code (Tas) s 46 is amended by the insertion of a requirement of reasonableness in relation to the accused’s perception of the circumstances? Or is excessive self-defence a matter that can be appropriately dealt with as part of the sentencing process?

Q17 Should a partial defence of killing for self-preservation in a domestic relationship be introduced in Tasmania? If so, how should the defence be formulated?

Q18 Should a partial defence of diminished responsibility be introduced in Tasmania? Or should diminished responsibility be a matter that is taken into account in sentencing?

Q19 Should the defences of prevention of crime (Criminal Code (Tas) s 39) and/or defence of dwelling-house (Criminal Code (Tas) s 40) be made consistent with the defence of self-defence so as to contain the same mix of subjective and objective requirements?

Q20 If consistency is desirable, how should this be achieved? Should the defence be consolidated in a single provision or should separate provisions be retained?

Q21  Should the defence of defence of dwelling house sanction the use of even lethal force?