Information, adverse and otherwise

'The Welfare Effects of Information' by Cass R. Sunstein in Journal of Risk and Uncertainty (Forthcoming) comments 

Some information is beneficial; it makes people’s lives go better. Some information is harmful; it makes people’s lives go worse. Some information has no welfare effects at all; people neither gain nor lose from it. Under prevailing executive orders, agencies must investigate the welfare effects of information by reference to cost-benefit analysis. Federal agencies have (1) claimed that quantification of benefits is essentially impossible; (2) engaged in “breakeven analysis”; (3) projected various endpoints, such as health benefits or purely economic savings; and (4) relied on private willingness-to-pay for the relevant information. All of these approach0es run into serious objections. With respect to (4), people may lack the information that would permit them to say how much they would pay for (more) information; they may not know the welfare effects of information; and their tastes and values may shift over time, in part as a result of information. These points suggest the need to take the willingness-to-pay criterion with many grains of salt, and to learn more about the actual effects of information, and of the behavioral changes produced by information, on people’s experienced well-being.

'Restraining 'Extraneous' Prejudicial Publicity: Victoria And New South Wales Compared' by Jason Bosland in (2018) 41(4) UNSW Law Journal 1263 comments

This article explores the powers available to courts in Victoria and New South Wales to restrain the media publication of ‘extraneous’ prejudicial material – that is, material that is derived from sources extraneous to court proceedings rather than from the proceedings themselves. Three sources of power are explored: the power in equity to grant injunctions to restrain threatened sub judice contempt, the inherent jurisdiction of superior courts and, finally, statutory powers in New South Wales under the Court Suppression and Non-publications Orders Act 2010 (NSW) and in Victoria under the Open Courts Act 2013 (Vic). It argues that the approach of the Victorian courts is much broader in terms of the scope and application of orders, which potentially explains why orders restraining extraneous material are more commonly made in Victoria than in New South Wales. It further argues that the Victorian approach presents some significant consequences for publishers. 

Bosland argues

 The right to a fair trial is ingrained in the common law. It is also recognised as a fundamental human right, and, in some jurisdictions, as an express constitutional guarantee. According to the law, one of the ways that the right to a fair trial may be placed in jeopardy is through the publication of prejudicial material. In most cases the concern is that exposure to certain information, especially through the media, will compromise the ability of a jury to reach an impartial verdict at trial; in other cases, media publicity may be thought to prejudice proceedings by having a distorting effect on the testimony of witnesses, or by placing improper pressure on litigants in relation to how they pursue or defend litigation in the courts. The publication of prejudicial information can be divided into two broad categories. The first category is the publication of information revealed during the course of judicial proceedings – information that can be referred to as ‘proceedings information’. A common example is the publication of a guilty plea or verdict heard in open court that could risk pre-judgment of a co-accused’s guilt or innocence; other examples include the publication of information regarding the admissibility of evidence or the competence of a witness discussed in court during voir dire (ie, a ‘trial within a trial’). The second category is the publication of prejudicial information that is from a source extraneous to judicial proceedings – in other words, information that is not revealed during, or derived from, court proceedings but which, if published, has the potential to prejudicially affect proceedings. Examples include statements alleging guilt or innocence, prior convictions, allegations of prior or subsequent criminal or disreputable conduct, photographs of an accused, interviews with witnesses, and the dramatised re-enactment of an alleged crime for which an accused is being tried. 

The distinction between these two categories of information, although not always straightforward, is significant. This is because the law has traditionally dealt with each category in very different ways. At the heart of the distinction is that the right to publish proceedings information, even highly prejudicial proceedings information, is generally protected by the longstanding common law principle of open justice – in particular, the open justice rule that, subject to limited exceptions, nothing should be done to prevent members of the public, including the media, from publishing fair and accurate reports of what takes place in open court. This right means that courts can only control the publication of proceedings information by adopting specific measures, usually by granting suppression or non-publication orders (called ‘proceedings suppression orders’). In contrast, the courts have not traditionally sought to control extraneous information through the use of suppression orders. This is because the publication of prejudicial extraneous material, which is not derived from proceedings and is therefore not protected by the principle of open justice, is subject to criminal liability under the common law of sub judice contempt. Sub judice contempt is committed where it is established to the criminal standard of proof that a publication has ‘as a matter of practical reality, a tendency to interfere with the due course of justice’ in particular proceedings pending before a court. It follows that courts have traditionally left it to the threat of postpublication liability for sub judice contempt to deter the publication of prejudicial extraneous material. 

Over the past decade or so, however, judges in Victoria have become significantly less confident in the capacity of sub judice contempt to prevent prejudicial publicity. Consequently, consistent with the frequent use of proceedings suppression orders in Victoria, it is now relatively common for Victorian judges to turn to the pre-emptive measure of specifically ordering that particular extraneous information is not to be published. There are a number of possible explanations for the shift towards the use of such orders. Perhaps the most significant is that prosecutions for sub judice contempt have become relatively rare. In recent years, the willingness of Attorneys-General and relevant prosecuting authorities to institute proceedings against the media for sub judice contempt has significantly declined. Thus, according to the Honourable Justice King of the Supreme Court of Victoria, the lack of effective policing of sub judice contempt has ‘ultimately led to the necessity of making ... orders to prevent what would be contempts of court’. The assumption appears to be that media outlets have become cavalier in publishing potentially contemptuous material in the knowledge that prosecution for contempt is unlikely. 

In addition to perceived inadequacies with the enforcement of sub judice contempt, it is likely that changing media environments have also played a role. For example, judges may be concerned that the decline in traditional media revenue streams has resulted in fewer dedicated and experienced court reporters, creating a potential risk that the journalists reporting the courts will be less familiar with the constraints imposed by the sub judice contempt rule (and, indeed, other legal restraints on publication). Consequently, judges may see the granting of specific orders as a way of ensuring that journalists are clear as to what information can and cannot be published. Similar concerns may exist regarding the distribution of prejudicial information by ‘citizen journalists’ and social media users. Furthermore, new communication technologies and the perceived risks created by the publication of material online may also be seen as warranting a pre-emptive approach. For example, given the infinitely accessible and effectively permanent nature of material once published online, courts may see the making of orders as necessary to prevent prejudicial information entering the digital sphere and, in turn, later being brought to the attention of potential jurors. 

Whatever the reasons, this article does not focus on the question of why Victorian courts are turning to prior restraints to control extraneous publicity. Instead, it is confined to the narrower task of examining the scope and application of the powers that are available to courts in Victoria and New South Wales to make orders preventing the media publication of prejudicial extraneous information. It is limited to examining these two jurisdictions because a detailed search of the case law in Australia indicates that such orders have only ever been made by courts in Victoria and, albeit to a much more limited extent, New South Wales. In examining the various powers, it makes the central argument that the Victorian courts have adopted an approach to the suppression of extraneous publicity that is considerably broader in scope and application compared to the approach in New South Wales. Importantly, this difference in approach has gone unnoted in both the case law and commentary, despite the fact that the Victorian approach imposes significantly greater burdens on publishers. 

It is necessary to establish at the outset that there are three independent sources of power that courts in Victoria and New South Wales, depending on the court in question, can potentially rely upon. First, and most conventionally, superior courts can rely upon their equitable jurisdiction to grant quia timet injunctions to restrain threatened sub judice contempt. The use of such injunctions to control prejudicial publicity is well-settled and is the jurisdictional basis favoured in England and, at least up until the introduction of an alternative power under the Court Suppression and Non-publication Orders Act 2010 (NSW) (‘CSNPO Act’), in New South Wales. Second, it has recently been recognised in Victoria that the inherent jurisdiction of superior courts under the common law provides the power to suppress the publication of extraneous prejudicial publicity. This is the same source of power that has long been recognised as available to superior courts to make proceedings suppression orders;  however, to distinguish such orders from their proceedings counterparts, orders restraining the publication of extraneous information are called ‘general’ suppression orders in Victoria.  Third, and finally, express statutory powers to suppress the publication of extraneous material exist in both New South Wales and Victoria. In New South Wales, such power is available to all courts under the CSNPO Act, while in Victoria, the County and Magistrates’ courts have dedicated powers under the Open Courts Act 2013 (Vic) (‘OC Act’). 

Parts II and III of this article examine the scope of the powers available in New South Wales. Part II begins by considering the power in equity to grant quia timet injunctions to restrain the commission of threatened contempt. It is shown that such relief is rare and exceptional and will only be granted where there is evidence that a particular publisher, unless restrained, is intending to publish a particular publication that is likely to constitute contempt. Given its narrow scope of application, it has only been successfully deployed against the media in a handful of available cases in New South Wales. Part III then considers the power under the CSNPO Act. Despite being expressed in broad terms, it is argued that the power has been given an interpretation in recent cases that is, in effect, commensurate in scope with the narrow power available in equity. 

Part IV contrasts the approach in New South Wales with the interpretation of the powers of suppression in Victoria. It argues that the newly-recognised power to grant general suppression orders under the inherent jurisdiction has been given an extremely broad scope of application – certainly much broader than the power to grant quia timet injunctions in equity. In particular, the case law and practice of the Victorian Supreme Court (including the Court of Appeal) demonstrate that orders are often made as ‘general precautionary orders’. Such orders, rather than being directed towards particular publishers in relation to particular anticipated publications, broadly purport to restrain any person with knowledge of an order from publishing certain specified material or categories of material (for example, an accused’s prior convictions). It is also demonstrated in Part IV that the Supreme Court adopts a much more flexible approach to the making of general precautionary orders compared to orders directed at particular publishers. Part IV further explains that general precautionary orders have been made by the County and Magistrates’ courts pursuant to their dedicated statutory powers, despite the fact that the County Court’s power under the OC Act is expressed in arguably narrower terms. 

Finally, Part V considers the consequences that the granting of general precautionary orders in Victoria can potentially pose for publishers. It argues that such orders extend beyond restraining threatened sub judice contempt; this, in turn, raises questions about the relationship between the inherent jurisdiction to grant general suppression orders and the law of sub judice contempt. It also argues that general precautionary orders, as currently made by the Victorian courts, require the removal of pre-existing internet content. Consequently, for reasons that are explained, such orders cannot be considered a proper exercise of either the inherent jurisdiction or the statutory powers under the OC Act.

Gene Technology Regulation

The report of the Third Review of the National Gene Technology Scheme, centred on the Gene Technology Act 2000 (Cth), states that

Gene technology makes changes to genetic material, including genes or parts of genes. Using gene technology techniques, scientists can modify organisms by inserting, removing, or altering the activity of one or more genes, or parts of a gene, so that an organism gains, loses or changes specific characteristics. Living things which have been modified by gene technology are known as genetically modified organisms (GMOs).

Australia’s National Gene Technology Scheme (the Scheme) is highly regarded, both domestically and internationally. The Scheme is designed to protect the health and safety of people, and the environment, from the risks associated with gene technology. It has continued to demonstrate its ability to achieve this objective since inception.

The Scheme is a national cooperative of all state, territory and Commonwealth governments, set out in the intergovernmental Gene Technology Agreement 2001 (the Agreement). The Scheme comprises the Agreement, the Gene Technology Act 2000 (Cth) (the Act), the Gene Technology Regulations 2001 (Cth) (the Regulations), and corresponding state and territory legislation. These Commonwealth and state laws provide national coverage for the regulation of GMOs. The Scheme also works in conjunction with, and complements, other regulatory frameworks that deal with genetically modified (GM) products.

The object of the Act, the primary piece of legislation regulating GMOs, is to: ‘Protect the health and safety of people, and to protect the environment, by identifying risks posed by or as a result of gene technology, and by managing those risks through regulating certain dealings with GMOs. The Scheme regulates gene technology using a risk-based approach8, where higher risk activities involving GMOs are subject to greater regulatory oversight. Further information about the current operation of the Scheme can be found in Chapter Two: What is the Gene Technology Scheme and how does it work?

All stakeholders with an interest in the Australian Scheme expect a regulatory framework that achieves the object set out above. To be truly effective, this framework must be reviewed and delivered at a national level, with all interested stakeholders playing their part. To support this aim, the intergovernmental Agreement establishes a collaborative mechanism across all jurisdictions – states, territories and the Commonwealth – to oversight regulation of gene technology across Australia.

Multi-jurisdictional arrangements can be difficult and challenging. Australia’s gene technology scheme is purposefully designed to create a consistent, predictable and transparent approach to the regulation of GMOs across the country. However, within this framework, our constitution supports jurisdictions advocating for their own interests. The Agreement provides a formal national framework to achieve the shared objectives of the Scheme, as well as a mechanism to work through any differing views.

The Legislative and Governance Forum on Gene Technology (the Forum) is the ministerial body charged, through the Agreement, with responsibility for ensuring the national consistency of the Scheme. All jurisdictions have equal membership on the Forum. The Review has identified 27 recommendations, some of which call for further investigation, to be progressed via a work program overseen by the Forum. Recommendation 1 specifically recognises the role of the Forum, and the importance of continuing collaboration to implement the recommendations.

Regular reviews of the Scheme are required under the Agreement. Since the Scheme commenced in 2001, two reviews have been conducted (in 2006 and 2011). They focused on the operation of the Scheme and whether the policy objectives were being achieved. While there was some attention given to technical considerations, these reviews were predominately retrospective in nature, reviewing how well the Scheme had been meeting its purpose. The Third Review of the Scheme (the Review) has continued to focus on the ongoing achievement of the policy objectives of the Scheme. This is in a global environment where governments and citizens are discussing appropriate regulatory approaches to manage future advances in gene technology, and biotechnology more broadly. The Review’s Terms of Reference emphasise the need to assess and support the Scheme with a view to the future, taking into account the rapidly developing and innovative area of gene technology. Additionally, the Review considered how best to progress any outcomes of previous reviews that require further attention. Terms of Reference for the Review can be found in the Introduction.

Separate to the reviews of the Scheme, the Gene Technology Regulator (the Regulator) may also conduct technical reviews of the Regulations. While they have no scope to amend policy settings, technical reviews can consider enhancements to the operation of the Scheme, and may also lead to Regulation amendments. As the timing of the Regulator’s most recent technical review overlapped with the Third Review of the Scheme, consultation approaches aimed to minimise confusion and duplication of effort for stakeholders.

Governance of the Review reflects the Scheme’s national governance structure. Day to day operational oversight was provided through the Gene Technology Standing Committee (the Standing Committee) – senior officials from all jurisdictions, who report to the Forum. The Review was designed to harness the spectrum of views of government and non-government stakeholders across Australia. Consultation was supported by research and expert technical advice, which helped to address the complex scientific and regulatory nature of gene technology.

In discussing findings and recommendations the Review states

A diverse range of views were heard through the public consultation processes. These views were further informed by discussions with the Gene Technology Regulator, other experts and relevant bodies. This input, in combination with information from related reports, reviews and adjunct research, supported 33 initial findings arising from the Terms of Reference, and the subsequent development of 27 recommendations. The recommendations acknowledge and address: • the aspects of the Scheme that have operated successfully since its establishment and which should be maintained; and • areas within the Scheme where changes may assist to future-proof and modernise the Scheme and help ensure efficiency and timeliness in this context. The Review outcomes are presented in Chapter 1, which details the rationale supporting each recommendation. A high-level summary, grouped under the following themes, is provided below: • Overarching issues • Technical issues • Regulatory issues • Governance issues • Social and ethical issues Overarching issues

The legislative framework, and the Agreement that establishes the national Scheme, remain central to the successful operation of the regulatory framework. Equally important is the legislative and governance oversight provided by the Forum. The Review’s first recommendation acknowledges this sound foundation and the expectation that it should continue, while also recognising the need for updates and enhancements as the Scheme evolves.

It became apparent early on in consultations that the complexity and scope of the Scheme mean that it is not always well understood by all sectors. However, the majority of stakeholders agreed that the Scheme effectively provides for, and should continue to provide for, the health and safety of people and the protection of the environment, from the risks posed by or as a result of gene technology. The Scheme benefits both the public and industry at this broad level, and there was no call to alter the object of the Act. The Review also found that the Agreement is working well to support a national collaborative arrangement between jurisdictions and across relevant portfolios, and recognised the importance of maintaining this to ensure the Scheme continues to work into the future.

Review theme one: Technical issues

The foundations of the Scheme, now almost two decades old, are still providing a solid regulatory framework. This is a strong testament to a well-designed Scheme. Many of the issues that have arisen over recent years do not relate to the base construct of the Scheme, but to its ability to keep pace with the technology. The Review considered several issues relating to technical aspects of the Scheme. This included exploring the degree to which the legislative definitions are able to appropriately classify a range of advances in technology. There is debate occurring at both national and international levels that may impact these definitions, with other key reviews and activities still ongoing. The Review also noted significant differences in stakeholder opinion as to how, or even whether, definitions should be amended. These matters are central to the Review outcomes, particularly given the scope to ‘future-proof’ the Scheme. Any further work to resolve the definitions should consider this context.

The Review also investigated issues relating to extensions or advancements of modern technology, including synthetic biology, human gene therapy, GMOs released into the broader environment and gene drive organisms. The Review discussed the ongoing regulation of these applications, and options to manage possible risks associated with their application.

Review theme two: Regulatory issues

The Review considered contemporary approaches to regulation, including current best-practice and risk-based approaches. This is in an environment where understanding about the science and any inherent risks is evolving. Opportunities to improve the flexibility and agility of the Scheme, while maintaining the appropriate oversight measures, were key areas of focus.

Like many other systems for the regulation of gene technology around the world, Australia currently employs what is known as a ‘process-based trigger’. This means that any organism developed using a gene technology process is subject, at least initially, to regulatory requirements. The Review explored an option where risk assessments focus instead on the end-use or ‘product’.

Despite much discussion, stakeholders generally agreed that maintaining the current ‘regulatory trigger’ would be the most sensible outcome at this point. This position recognises that other regulatory schemes (i.e. food, medicines, etc.) would also need to be reviewed and amended for any change to be effective. The application of different levels, or ‘tiers’, of regulation within the Scheme was discussed, with a view to finding ways to ensure that regulatory requirements are proportionate to risk. This included exploring mechanisms to determine additional regulatory tiers for organisms with a history of safe use, as well as appropriate regulatory pathways and requirements for these organisms.

Thought has also been given to whether additional mechanisms should be available, or existing mechanisms can be leveraged, to help future-proof the Scheme’s ability to address technological advances. These include improving the utility of the GMO register, incorporating a principles-based approach to some aspects of regulation, and utilising the Gene Technology Standing Committee to progress updates to the Scheme, where possible.

The Review includes recommendations for streamlining the Scheme’s regulatory requirements, and for ensuring the Scheme is suitably equipped to regulate work with GMOs undertaken outside of universities, research institutions or large companies. The Review also considered how the Scheme impacts market access and international trade, and the role for the Australian Government in this area.

In summary, the Review determined that the ability to capture a broader scope of activities within the Scheme, via the process trigger, should be maintained. However, better alignment of regulation to the level of risk would enhance this fundamental strength, and support contemporary best practice. Review theme three: Governance issues The Review discussed the credibility, integrity and legitimacy of the Scheme, its legislative and governance provisions, as well as the independence of the Regulator. Supporting the overarching view that the core of the Scheme is sound and should be preserved, the Review concluded the current governance mechanisms should be upheld.

Matters relating to national consistency were also considered. This included the mechanism for applying corresponding legislation across the country, and the benefits of states and territories ensuring that their gene technology Acts continue to facilitate a nationally consistent Scheme.

The Review found that stakeholders continue to hold conflicting views regarding the advantages and disadvantages of moratoria legislation (whereby states and territories may ban the commercialisation of genetically modified crops for marketing purposes). This issue was explored in detail, with a recommendation calling for states and territories to give ongoing consideration to the economic effects, value and scope of their moratoria legislation. Other recommendations recognise the role of the Forum in pursuing national consistency of the Scheme, and addressing practical issues that may arise from moratoria legislation (such as transport). Australia’s regulatory scheme for gene technology is based upon scientific evaluation, and any potential benefits arising from a GMO are not currently considered in regulatory decision making. Whether this remains appropriate was examined by the Review. It was concluded that the objectives of the Scheme – protecting the health and safety of people, and the environment – are best achieved through a focus on gene technology risks and their management. Evaluation of potential benefits should not form part of regulatory decision making at this time. However, the Review also determined that the Scheme should ensure that no unnecessary regulatory burdens are imposed that might prevent potential economic, health or welfare benefits from being realised. The Review explored whether specific topic areas would benefit from additional policy direction (for example, the release of gene drives into the environment). Significantly, the Review recommended that the Forum should lead an Action Plan for the implementation of the Review recommendations. This may include mechanisms to clarify policy positions on key matters.

Further, the Review considered, and made recommendations on, the interface between the Office of the Gene Technology Regulator, other regulators and legislation, the level of funding required for the sustainable operation of the Scheme, and the most appropriate funding mechanism to achieve this.

Review theme four: Social and ethical issues

The Review’s discussion on social and ethical issues explored public attitudes and understanding of genetic modification, and the impacts for Australia. Consultation was supported by market research, which identified a number of misperceptions and knowledge gaps. These highlighted the need for better communication with the public (including the most appropriate body, or bodies, to undertake such communication activities). Increased understanding of the regulatory process and what is and isn’t covered by it, is particularly needed, as is better information on risk assessment and the existing transparency measures for communicating regulatory data. To further build public understanding and confidence in the Scheme, the Review recommends the development of additional targeted communication mechanisms. Recommendations also address ongoing concerns within some sectors of the community about the safety of GMOs, and the ability of the Regulator to monitor commercialised GMOs for long-term impacts.

International context

When reviewing Australia’s domestic regulation of gene technology, it is also important to be aware of how it is regulated in other countries. The international context is complex, and there is currently no agreed international regulatory framework for gene technology regulation, with countries taking a variety of different approaches. Unlike some countries, Australia currently has a ‘one size fits all’ approach, which means that regulatory changes that may be considered justifiable by some sectors, may have unintended consequences not only nationally, but internationally. Additional information about gene technology regulation in the international context can be found in Chapter Two: What is the Gene Technology Scheme and how does it work?.

Scope of the Review

The Review acknowledges that some applications of gene technology raise concerns for some stakeholder groups. While those that are within scope of the Review have been addressed, some of the concerns raised are beyond the scope of the Review to consider, and these topic areas are highlighted on page 16 and in Appendix 2: Matters out of scope of the Review.

Next steps and implementation considerations

The Review acknowledges that the scope of work arising from the Review recommendations is considerable, wide-reaching and will require cross-jurisdictional and cross-portfolio coordination to achieve. Some outcomes may be delivered in the short term, while others may require a medium or longer term for implementation. The Review recommends that an action plan be agreed by the Forum, to outline and demonstrate governments’ commitment to delivering the national priorities of the Forum. Part of this action plan will include consideration of the Review recommendations and how and when they may be implemented. As such, Ministers, via the Forum, will have further decision-making opportunities to determine priorities, responsibilities and funding impacts. Consideration will also need to be given to any administrative, legal and financial implications, prior to implementation of recommendations.

The Scheme is legislatively complex, comprising corresponding Commonwealth, state and territory legislation. It operates in conjunction with other jurisdictional regulatory schemes relevant to GMOs and genetically modified products. Any recommendations that are implemented through legislative amendments will need to be thoroughly tested and enacted through all applicable legislation, noting the Review cannot recommend changes to legislation outside the remit of the Scheme.

Where possible, it would be sensible to implement recommendations via administrative changes rather than legislative amendments. The Standing Committee could be tasked with managing the operational aspects of implementation through the Forum’s action plan, which would include development of a comprehensive Implementation Plan. Working in collaboration with stakeholders could also support implementation of recommendations in a timely, appropriate and cost-effective manner.The Review was undertaken by all governments through the Forum, using a comprehensive consultation process that included government (and non-government) stakeholders. As such, the recommendations represent the views of all governments. Through the Forum, all governments will collectively decide how best to progress the recommendations, through an agreed action plan.

Recommendations are as follows -

Overarching Recommendations 

Recommendation 1: To build upon and futureproof the Scheme, which is highly regarded, the Review recommends: a) the Forum progress options to update and enhance the operations of the Scheme; and b) these options be implemented in short, medium and long-term tranches, according to an action plan to be developed by the Forum. 

Recommendation 2: The Review recommends that the object of the Gene Technology Act 2000 be maintained. 

Recommendation 3: The Review recommends that the Gene Technology Agreement be maintained. 

Review Theme One: Technical Issues 

Recommendation 4: The Review recommends updating, where required, the existing definitions in the Gene Technology Act 2000 (Cth), to clarify the scope of regulation in light of ongoing technical advances. Any changes to definitions should take into account concurrent work, including relevant domestic reviews and ongoing work internationally. 

Recommendation 5: The Review recommends that: a) extensions and advancements of gene technology, such as synthetic biology, continue to remain within the scope of the Scheme; and b) a watching brief on synthetic biology should be maintained, to ensure the appropriate level of regulation is applied to future applications of synthetic biology. 

Recommendation 6: The Review recommends: a) the definition of a genetically modified organism under the Gene Technology Act 2000 (Cth) be amended to clarify that humans are not [considered to be] GMOs; and that b) subject to consideration, the COAG (Council of Australian Governments) Health Council might also consider whether additional regulatory oversight is needed for humans who may receive or inherit germline therapies (or other somatic therapies not within the remit of the Scheme). The COAG Health Council should also consider which regulatory (or other) body would be most appropriate to undertake such oversight. 

Recommendation 7: The Review recommends clarifying, and where necessary strengthening, the mechanisms for regulating the: a) broader environmental release of genetically modified organisms; and b) environmental release of GM gene drive organisms (as well as any additional requirements for contained work). 

Review Theme Two: Regulatory Issues 

Recommendation 8: The Review recommends that a process-based trigger be maintained as the entry point for the Scheme at the present, to allow for any potential risks associated with new technologies to be initially considered within the scope of the Scheme. 

Recommendation 9: The Review recommends the introduction of additional risk tiering into the Scheme, to facilitate flexibility of the regulatory Scheme and ensure: a) the level of regulation remains proportionate to risk, and protects against under regulation and over-regulation; and b) where appropriate, there is flexibility to move organisms between categories, based on identification of new risks, a history of safe use, or other relevant factors. 

Recommendation 10: The Review recommends reducing regulatory burden through streamlining processes and current regulatory requirements where appropriate. For example, this may include streamlining facility certifications and application processes. 

Recommendation 11: The Review recommends that changes be made to enable the GMO Register to be more effectively utilised within the Scheme. 

Recommendation 12: The Review recommends that, to ensure the Scheme’s current monitoring and enforcement activities remain adequate: a) regular reviews of these activities are undertaken; b) regulatory requirements for working with gene technologies are widely communicated and known; and c) the scope and associated risks of ‘DIY biology’ activity continue to be monitored. 

Recommendation 13: The Review recommends that to better respond to changes in scientific understanding and understandings of risk, consideration should be given to: a) enabling the Gene Technology Regulator to make decisions on the applicability of regulation to any technological developments, until such time as a policy approach has been agreed; and b) introducing elements of principles-based regulation to some parts of the Scheme, focusing on areas of the Scheme with a history of safe use 

Recommendation 14: The Review recommends reaffirming and clarifying governance arrangements to increase the agility of the Scheme, including more effective use of mechanisms for: a) the Gene Technology Standing Committee to consider and recommend changes to the legislation for the Legislative and Governance Forum on Gene Technology endorsement; and b) delegating certain activities and work programs of the Legislative and Governance Forum on Gene Technology to the Gene Technology Standing Committee. 

Recommendation 15: The Review recommends that the Australian Government, including the Gene Technology Regulator on regulatory matters, continues to: a) engage with appropriate international fora on matters relevant to market access and international trade; and b) ensure that any relevant international obligations continue to be met. 

Review Theme Three: Governance Issues 

Recommendation 16: The Review recommends maintaining current governance mechanisms to ensure that the Scheme’s current levels of credibility, integrity and legitimacy are upheld. This includes maintaining: a) high level governance oversight provided by all states and territories through a Legislative and Governance Forum on Gene Technology; b) the independence and credibility of the Gene Technology Regulator; and c) robust governance processes providing oversight of advisory structures and appointments. 

Recommendation 17: The Review recommends that states and territories continue to ensure that their gene technology Acts remain corresponding and that appropriate mechanisms are in place to update corresponding state and territory legislation following amendment of the Gene Technology Act 2000 (Cth). 

Recommendation 18: The Review recommends that states and territories give ongoing consideration to the economic effects, value and scope of moratoria. 

Recommendation 19: The Review recommends that consideration of benefits (e.g. potential economic, environmental and health benefits) should not be introduced as an element of regulatory decision making at this time. 

Recommendation 20: The Review recommends that the Scheme ensures regulation remains commensurate with the level of risk posed by a dealing (see Recommendations 9 and 10) so that no unnecessary regulatory burdens are imposed. 

Recommendation 21: The Review recommends clarifying the intersection between the Gene Technology Regulator, other regulators and legislation, which may include: a) identifying opportunities to enhance communication mechanisms and linkages; b) identifying any emerging areas where legislative or administrative changes can be made, to reduce any unnecessary duplication; and c) adopting relevant effective mechanisms from other schemes (for example, the Therapeutic Goods Act 1989 Special Access Scheme) where they may strengthen the Scheme. 

Recommendation 22: The Review recommends that further consideration be given to the most appropriate funding mechanisms to support the ongoing operation of the Scheme, and to appropriate funding levels for the Gene Technology Regulator’s activities, taking into account any changes to the Scheme. 

Review Theme Four: Social and Ethical Issues 

Recommendation 23: The Review recommends that targeted communications be developed to aid public understanding and confidence in the Gene Technology Scheme and identify the most appropriate body/bodies to deliver communications materials. 

Recommendation 24: The Review recommends that the Gene Technology Regulator continue to lead communication activities on topics related to the assessment of risk associated with gene technology. 

Recommendation 25: The Review recommends that the Gene Technology Regulator continue to identify and manage the risks posed by, or as a result of, gene technology, and to increase transparency and understanding. 

Recommendation 26: The Review recommends a science-based review of monitoring arrangements to ensure that any post release risks continue to be appropriately managed. 

Recommendation 27: The Review recommends that the Gene Technology Regulator continue to make relevant information publicly available, to maintain a high level of transparency within the Scheme.

Not a silver bullet

An interesting answer to the wrong question? The new NIST Blockchain Technology Overview by Dylan Yaga, Peter Mell, Nik Roby and Karen Scarfone comments that

Blockchains are tamper evident and tamper resistant digital ledgers implemented in a distributed fashion (i.e., without a central repository) and usually without a central authority (i.e., a bank, company, or government). At their basic level, they enable a community of users to record transactions in a shared ledger within that community, such that under normal operation of the blockchain network no transaction can be changed once published. This document provides a high-level technical overview of blockchain technology. The purpose is to help readers understand how blockchain technology works. 

The authors go on to state

In 2008, the blockchain idea was combined with several other technologies and computing concepts to create modern cryptocurrencies: electronic cash protected through cryptographic mechanisms instead of a central repository or authority. The first such blockchain based cryptocurrency was Bitcoin.

Within the Bitcoin blockchain, information representing electronic cash is attached to a digital address. Bitcoin users can digitally sign and transfer rights to that information to another user and the Bitcoin blockchain records this transfer publicly, allowing all participants of the network to independently verify the validity of the transactions. The Bitcoin blockchain is stored, maintained, and collaboratively managed by a distributed group of participants. This, along with certain cryptographic mechanisms, makes the blockchain resilient to attempts to alter the ledger later (modifying blocks or forging transactions).

Because there are countless news articles and videos describing the “magic” of blockchain technology, this paper aims to describe the method behind the magic (i.e., how blockchain technology works). Arthur C. Clarke once wrote, “Any sufficiently advanced technology is indistinguishable from magic”. Clarke’s statement is a perfect representation for the emerging applications of blockchain technology. There is hype around the use of blockchain technology, yet the technology is not well understood. It is not magical; it will not solve all problems. As with all new technology, there is a tendency to want to apply it to every sector in every way imaginable. To help promote correct application, this document provides information necessary to develop a high-level understanding of the technology.

Blockchain technology is the foundation of modern cryptocurrencies, so named because of the heavy usage of cryptographic functions. Users utilize public and private keys to digitally sign and securely transact within the system. For cryptocurrency based blockchain networks which utilize mining (see section 4.1), users may solve puzzles using cryptographic hash functions in hopes of being rewarded with a fixed amount of the cryptocurrency. However, blockchain technology may be more broadly applicable than cryptocurrencies. In this work, we focus on the cryptocurrency use case, since that is the primary use of the technology today; however, there is a growing interest in other sectors. Organizations considering implementing blockchain technology need to understand fundamental aspects of the technology. For example, what happens when an organization implements a blockchain network and then decides they need to make modifications to the data stored? When using a database, modifying the actual data can be accomplished through a database query and update. 

Organizations must understand that while changes to the actual blockchain data may be difficult, applications using the blockchain as a data layer work around this by treating later blocks and transactions as updates or modifications to earlier blocks and transactions. This software abstraction allows for modifications to working data, while providing a full history ofchanges. Another critical aspect of blockchain technology is how the participants agree that a transaction is valid. This is called “reaching consensus”, and there are many models for doing so, each with positives and negatives for particular business cases. It is important to understand that a blockchain is just one part of a solution. 

Blockchain implementations are often designed with a specific purpose or function. Example functions include cryptocurrencies, smart contracts (software deployed on the blockchain and executed by computers running that blockchain), and distributed ledger systems between businesses. There has been a constant stream of developments in the field of blockchain technology, with new platforms being announced constantly – the landscape is continuously changing.

There are two general high-level categories for blockchain approaches that have been identified: permissionless, and permissioned. In a permissionless blockchain network anyone can read and write to the blockchain without authorization. Permissioned blockchain networks limit participation to specific people or organizations and allow finer-grained controls. Knowing the differences between these two categories allows an organization to understand which subset of blockchain technologies may be applicable to its needs. 

Despite the many variations of blockchain networks and the rapid development of new blockchain related technologies, most blockchain networks use common core concepts. Blockchains are a distributed ledger comprised of blocks. Each block is comprised of a block header containing metadata about the block, and block data containing a set of transactions and other related data. Every block header (except for the very first block of the blockchain) contains a cryptographic link to the previous block’s header. Each transaction involves one or more blockchain network users and a recording of what happened, and it is digitally signed by the user who submitted the transaction. 

Blockchain technology takes existing, proven concepts and merges them together into a single solution. This document explores the fundamentals of how these technologies work and the differences between blockchain approaches. This includes how the participants in the network come to agree on whether a transaction is valid and what happens when changes need to be made to an existing blockchain deployment. Additionally, this document explores when to consider using a blockchain network. 

The use of blockchain technology is not a silver bullet, and there are issues that must be considered such as how to deal with malicious users, how controls are applied, and the limitations of the implementations. Beyond the technology issues that need to be considered, there are operational and governance issues that affect the behavior of the network. For example, in permissioned blockchain networks, described later in this document, there are design issues surrounding what entity or entities will operate and govern the network for the intended user base. 

Blockchain technology is still new and should be investigated with the mindset of “how could blockchain technology potentially benefit us?” rather than “how can we make our problem fit into the blockchain technology paradigm?”. Organizations should treat blockchain technology like they would any other technological solution at their disposal and use it in appropriate situations.

MyHR report

Yet another Parliamentary Committee report on the deeply flawed MyHR scheme, this time from the Senate Community Affairs References Committee.

Its My Health Record system report features the following recommendations, which I discussed in an ABC interview last night.

R1 - 5.12 The committee recommends that record access codes should be applied to each My Health Record as a default and that individuals should be required to choose to remove the code. The committee further recommends that the ability to override access codes in the case of an emergency should only be available to registered healthcare providers for use in extraordinary and urgent situations. 

R2  - 5.15 The committee recommends that the Australian Government amend the My Health Records Act 2012 to protect the privacy of children aged 14 to 17 years unless they expressly request that a parent be a nominated representative. 

R3 - 5.16 The committee recommends that the Minister for Health amend the My Health Record Rule 2016 to extend the period for which a My Health Record can be suspended in the case of serious risk to the healthcare recipient, such as in a domestic violence incident. 

R4 - 5.19 The committee recommends that data which is likely to be identifiable from an individual's My Health Record not be made available for secondary use without the individual's explicit consent. 

R5 - 5.21 The committee recommends that the current prohibition on secondary access to My Health Record data for commercial purposes be strengthened to ensure that My Health Record data cannot be used for commercial purposes. 

R6 - 5.23 The committee recommends that no third-party access to an individual's My Health Record be permissible, without the explicit permission of the patient, except to maintain accurate contact information. 

R7 - 5.25 The committee recommends that the Australian Government amend the My Health Records Act 2012 and the Healthcare Identifiers Act 2010 to ensure that it is clear that an individual's My Health Record cannot be accessed for employment or insurance purposes. 

R8 - 5.26 The committee recommends that access to My Health Records for the purposes of data matching between government departments be explicitly limited only to a person's name, address, date of birth and contact information, and that no other information contained in a person's My Health Record be made available. 

R9 - 5.28 The committee recommends that the legislation be amended to make explicit that a request for record deletion is to be interpreted as a right to be unlisted, and as such, that every record is protected from third-party access even after it is deleted, and that no cached or back-up version of a record can be accessed after a patient has requested its destruction. 

R10 - 5.32 The committee recommends that the Australian Digital Health Agency revise its media strategy to provide more targeted comprehensive education about My Health Record. 

R11 - 5.36 The committee recommends that the Australian Digital Health Agency identify, engage with and provide additional support to vulnerable groups to ensure that they have the means to decide whether to opt out, whether to adjust the access controls within their My Health Record and how to do this. 

R12 - 5.37 The committee recommends that the Australian Government commit additional funding for a broad-based education campaign regarding My Health Record, with particular regard to communicating with vulnerable and hard to reach communities. 

R13 - 5.38 The committee recommends that the Australian Government extend the opt-out period for the My Health Record system for a further twelve months. 

R14 - 5.45 The committee recommends that the My Health Record system's operator, or operators, report regularly and comprehensively to Parliament on the management of the My Health Record system.

Consent

The NSW Law Reform Commission has released its consultation paper regarding Consent in relation to sexual offences.

The Commission's Terms of Reference are

 to review and report on consent and knowledge of consent in relation to sexual assault offences, as dealt with in s 61HA of the Crimes Act 1900 (NSW). In undertaking this review, the Commission should have regard to:

1. Whether s 61HA should be amended, including how the section could be simplified or modernised; 

2. All relevant issues relating to the practical application of s 61HA, including the experiences of sexual assault survivors in the criminal justice system; 

3. Sexual assault research and expert opinion; 

4. The impact or potential impact of relevant case law and developments in law, policy and practice by the Commonwealth, in other States and Territories of Australia, and internationally, on the content and application of s 61HA; and 

5. Any other matters that the NSW Law Reform Commission considers relevant.

The Papaper asks the following questions -

3. The meaning of consent 

Q3.1: Alternatives to a consent-based approach (1) Should the law in NSW retain a definition of sexual assault based on an absence of consent? If so, why? If not, why not? (2) If the law was to define sexual assault differently, how should this be done? 

Q3.2: The meaning of consent (1) Is the NSW definition of consent clear and adequate? (2) What are the benefits, if any, of the NSW definition? (3) What problems, if any, arise from the NSW definition? (4) What are the potential benefits of adopting an affirmative consent standard? (5) What are the potential problems with adopting an affirmative consent standard? (6) If NSW was to adopt an affirmative consent standard, how should it be framed? (7) Should the NSW definition of consent recognise other aspects of consent, such as withdrawal of consent and use of contraception? If so, what should it say? (8) Do you have any other ideas about how the definition of consent should be framed? 

4. Negation of consent 

Q4.1: Negation of consent (1) Should NSW law continue to list circumstances that negate consent or may negate consent? If not, in what other ways should the law be framed? (2) Should the lists of circumstances that negate consent, or may negate consent, be changed? If so, how? 

5. Knowledge about consent 

Q5.1: Actual knowledge and recklessness (1) Should “actual knowledge” remain part of the mental element for sexual assault offences? If so, why? If not, why not? (2) Should “recklessness” remain part of the mental element for sexual assault offences? If so, why? If not, why not? (3) Should “reckless” be defined in the legislation? If so, how should it be defined? (4) Should the term “reckless” be replaced by “indifferent”? If so, why? If not, why not? 

Q5.2: The “no reCasonable grounds” test (1) What are the benefits of the “no reasonable grounds” test? (2) What are the disadvantages of the “no reasonable grounds” test? 

Q5.3: A “reasonable belief” test (1) Should NSW adopt a “reasonable belief” test? If so, why? If not, why not? (2) If so, what form should this take? 

Q5.4: Legislative guidance on “reasonable grounds” (1) Should there be legislative guidance on what constitutes “reasonable grounds” or “reasonable belief”? If so, why? If not, why not? (2) If so, what should this include? 

Q5.5: Evidence of the accused’s belief (1) Should the law require the accused to provide evidence of the “reasonableness” of their belief? If so, why? If not, why not? (2) If so, what form should this requirement take? 

Q5.6: “Negligent” sexual assault Should NSW adopt a “negligent” sexual assault offence? If so, why? If not, why not? 

Q5.7: “No reasonable grounds” and other forms of knowledge (1) Should a test of “no reasonable grounds” (or similar) remain part of the mental element for sexual assault offences? (2) If not, are other forms of knowledge sufficient? 

Q5.8: Defining “steps” (1) Should the legislation define “steps taken to ascertain consent”? If so, why? If not, why not? (2) If so, how should “steps” be defined? 

Q5.9: Steps to ascertain consent (1) Should the law require people to take steps to work out if their sexual partner consents? If so, why? If not, why not? (2) If so, what steps should the law require people to take? 

Q5.10: Considering other matters (1) Should the law require a fact finder to consider other matters when making findings about the accused’s knowledge? If so, why? If not, why not? (2) If so, what should these other matters be? 

Q5.11: Excluding the accused’s self-induced intoxication (1) Should a fact finder be required to exclude the accused’s self-induced intoxication from consideration when making findings about knowledge? If so, why? If not, why not? (2) Should the legislation provide detail on when the accused’s intoxication can be regarded as self-induced? If so, what details should be included? 

Q5.12: Excluding other matters (1) Should the legislation direct a fact finder to exclude other matters from consideration when making findings about the accused’s knowledge? If so, what matters should be excluded? (2) Is there another way to exclude certain considerations when making findings about the accused’s knowledge? If so, what form could this take? 

Q5.13: A single mental element (1) Should all three forms of knowledge be retained? If so, why? If not, why not? (2) If not, what should be the mental element for sexual assault offences? 

Q5.14: Knowledge of consent under a mistaken belief Does the law regarding knowledge of consent under a mistaken belief need to be clarified? If so, how should it be clarified? 

Q5.15: Other issues about the mental element Are there any other issues about the mental element of sexual assault offences that you wish to raise? 

6. Issues related to s 61HA 

Q6.1: Upcoming amendments (1) What are the benefits of the new s 61HE applying to other sexual offences? (2) What are the problems with the new s 61HE applying to other sexual offences? (3) Do you support applying the legislative definition of consent and the knowledge element to the new offences? If so, why? If not, why not? 

Q6.2: Language and structure (1) Should changes be made to the language and/or structure of s 61HA (and the new s 61HE)? If so, what changes should be made? (2) Should the definition of “sexual intercourse” be amended? If so, how should sexual intercourse be defined? 

Q6.3: Jury directions on consent Are the current jury directions on consent in the NSW Criminal Trial Courts Bench Book clear and adequate? If not, how could they be improved? 

Q6.4: Jury directions on other related matters Should jury directions about consent deal with other related matters in addition to those that they currently deal with? If so, what matters should they deal with? 

Q6.5: Legislated jury directions (1) Should jury directions on consent and/or other related matters be set out in NSW legislation? If so, how should these directions be expressed? (2) What are the benefits of legislated jury directions on consent and/or other related matters? (3) What are the disadvantages of legislated jury directions on consent and/or other related matters? 

Question 6.6: Amendments to expert evidence law (1) Is the law on expert evidence sufficiently clear about the use of expert evidence about the behavioural responses of people who experience sexual assault? If so, why? If not, why not? (2) Should the law expressly provide for the introduction of expert evidence on the behavioural responses of people who experience sexual assault? If so, why? If not, why not?

Fairness and Fatness

'Fairness and Abstraction in Sociotechnical Systems' (ACM Conference on Fairness, Accountability, and Transparency (FAT*) by Andrew D. Selbst,  danah boyd, Sorelle Friedler, Suresh Venkatasubramanian and Janet Vertesi comments

A primary goal of the FAT* community is to develop machine-learning based systems that, once introduced into a social context, can produce social and legal goals such as fairness, justice, and due process. Bedrock concepts in computer science such as abstraction and modular design are used to define notions of fairness and discrimination, to produce fairness-aware learning algorithms, and to intervene at different stages of a decision-making pipeline to produce "fair" outcomes. In this paper, however, we contend that these concepts render technical interventions ineffective, inaccurate, and sometimes dangerously misguided when they enter the societal context that surrounds decision-making systems. We outline this mismatch with five "traps" that fair-ML work can fall into even as it attempts to be more context-aware in comparison with traditional data science. We draw on studies of sociotechnical systems in Science and Technology Studies to explain why such traps occur and how to avoid them. Finally, we suggest ways in which technical designers can mitigate the traps through a refocusing of design in terms of process rather than solutions, and by drawing abstraction boundaries to include social actors rather than purely technical ones.

'Fat horses and starving sparrows' by Rebecca Giblin  in (2018) 232 Overland comments

‘One of the most salient features of our culture is that there is so much bullshit’ – so begins moral philosopher Harry Frankfurt’s treatise on bullshit and its function. Bullshit comes, he argues, from one who ‘does not care whether the things he says describe reality correctly’, but says them regardless, in pursuit of their desired ends.

Bullshit has been enjoying unprecedented success in recent years. The Mexicans will pay for the wall. Britain’s National Health Service will enjoy a weekly £350m injection after Brexit. Australia stops the boats to prevent drownings at sea. But the bullshit I’m interested in right now is that populating Australia’s copyright reform debates.

A great deal of this bullshit is motivated by good intentions – most notably, the desire to sustain writers’ incomes in an era of precipitous, disastrous decline. In the last major survey, conducted by Macquarie University researchers in 2015, Australian authors were found to earn an annual average of just $12,900 from their writing work; the median, at $2,800, is even more concerning. In the UK, which has better longitudinal data, earnings of professional writers have dropped 42 per cent in real terms between 2005 and 2017, according to the Authors’ Licensing and Collecting Society. In that same time, the proportion able to make a living solely from writing work fell from 40 per cent to 13.7 per cent. The jobs at newspapers and magazines that used to so often be relied on to bolster book earnings have largely evaporated. Many of us know people who have lost their writing jobs, or who are just barely clinging on. Much of the blame is aimed at Google and Facebook, and understandably so: the two companies have managed to vacuum up some 60 per cent of global online ad revenue, despite investing almost nothing in producing the content to which it’s attached.

But pure intentions don’t stop bullshit from being bullshit. Frankfurt’s theory doesn’t require nefarious aims – simply the saying of things, regardless of truth, in pursuit of desired ends. As he puts it, ‘[t]he bullshitter … does not reject the authority of the truth, as the liar does, and oppose himself to it. He pays no attention to it at all.’

Frankfurt sees bullshit as the greatest enemy of truth. I don’t know if I agree, but I do think bullshit is dangerous. In this case, the bullshitters’ indifference to facts is hurting the interests of the authors they are ostensibly trying to protect.

So what is the bullshit I’m talking about? And what are the issues and interests it serves to obscure?

Let’s start with ‘free is not fair’, the catchy slogan of a campaign led by the Copyright Agency, which has been used to argue against the proposed adoption of a ‘fair use’ exception to copyright. For those who haven’t been following, there has been fierce debate over whether Australia ought to adopt a flexible exception to copyright infringement that would permit, without payment, any kind of use, so long as it’s ‘fair’. This is already the law in countries such as the US, with ‘fairness’ determined by taking into account all relevant factors, including the effect of the use on the potential market for or value of the copyright material.

Many people claiming that ‘free is not fair’ know a lot about copyright. They know that our law has permitted, for over a century, fair use for purposes such as research, criticism/review and news reporting. And, unless you think you should pay for every use of every copyrighted thing – for example, every time you access a webpage, use a search engine, forward an email or retweet a photo – you know free can be fair. The slogan even contradicts itself, since under a fair-use exception, if the use of a work for free is not fair, it wouldn’t be permitted. That is the entire point. Thus ‘free is not fair’ is textbook bullshit.

The widespread claim that the Productivity Commission recommended copyright be reduced from its current period (life of the creator plus seventy years) to a flat twenty-five years is bullshit, too. I’ll come back to what the commission did say shortly, but for now it’s sufficient to say that it made no such recommendation. In fact, the commission explicitly stated that international law would prevent it from making such a change. The publishers who pushed the claim knew all this, but ran with it anyway.

Of course, there is also bullshit coming from the other side of the debate. Those seeking to expand user rights sometimes make blithe assurances that this will have negligible impact on uses that are currently paid. Fair use certainly should work that way, since courts would be required to take into account potential market harms in determining whether a use is ‘fair’ at all. But the distinct lack of emphasis on safeguards or guarantees can justifiably give rise to concerns that those making the claims do not ‘care whether the things he says describe reality correctly’ – especially if they come from those who are already gobbling up your lunch.

Counterintuitively though, it’s the ostensibly pro-author claims that risk harming authors the most. Those arguing to maintain the current regulations may see these slogans as benign simplifications. After all, copyright is arcane and complex. Free is not fair is a simpler sell than Free is sometimes fair, but we worry judges might find things to be fair when we think they should be paid for.

Similarly, The Productivity Commission wants to take away your copyrights is a proxy for We think its recommendations are against our interests in ways that are too complex to explain, so we are going to arouse your outrage against a non-existent threat to undermine what else it had to say.

However well intentioned these claims might be, they sell authors short. The reasons why can be found in the two fundamental rationales for granting copyright in the first place. ...

Giblin goes on to comment

Australia’s current approach to protecting authors is a manifestation of trickledown economics, that theory of horses and sparrows: feed the horses enough oats and some will fall through to feed the birds. There are plenty of oats. By 2016, according to their own publicly released data, publishing behemoths Penguin Random House and Simon and; Schuster had seen their profit margins grow to 16 per cent. Yet a recent study, The Contribution of the Publishing Industry to the UK Economy, estimated that just 3 per cent of earnings went to the authors from whose minds sprang those rivers of gold. In other words, we have fat horses and starving sparrows.

This is why bullshit in the copyright debate is dangerous. By conflating authors’ interests with those of investors, we obscure the important differences between them. And it distracts us from the questions we should be asking – such as how can we secure authors a fairer share, while also maintaining incentives.

Quackery

The major Preventing Harm, Promoting Justice: Responding to LGBT conversion therapy in Australia report by Timothy W. Jones, Anna Brown, Lee Carnie, Gillian Fletcher and William Leonard

addresses the vexed problem of the religious LGBT conversion therapy movement. Conversion therapy emerged in Australian conservative Christian communities in the early 1970s, and has been practised in these and other communities ever since.

It is grounded in the belief that all people are born with the potential to develop into heterosexual people whose gender identity accords with that assigned to them at birth.  It views lesbian, gay, bisexual and transgender people as suffering from ‘sexual brokenness’, which can be cured. Full membership of faith communities can depend on same-sex attracted and gender diverse people committing to live celibate lives and seeking ‘healing’ for their sexual brokenness.

The report states

Psychological research has produced overwhelming clinical evidence that practices aimed at the reorientation of LGBT people do not work and are both harmful and unethical. All Australian health authorities, including the Christian Counsellors Association of Australia, now ‘strongly oppose any form of mental health practice that treats homosexuality as a disorder, or seeks to change a person’s sexual orientation’.  In 2014, nine ex-leaders of the ‘Gay Conversion Therapy Movement’ offered a public apology for the damage their movement had caused. ‘We now stand united in our conviction,’ they said, ‘that conversion therapy is not “therapy” but is instead ineffectual and harmful’. Nonetheless, our research suggests that up to 10% of LGBT Australians are still vulnerable to harmful conversion therapy practices. At least ten organisations in Australia and New Zealand currently advertise the provision of conversion therapies.

Rather than receding, our research suggests that conversion practices and ideologies are being mainstreamed within particular Christian churches. Ex-gay and ex-trans ideology, counselling and pastoral activities are still being promoted in the messages and teachings of many churches, mosques and synagogues, through print and digital media and through some Christian radio programmes.

In Australia, growing professional and government interest in minimising the harms of conversion therapy has not yet been matched by evidence and data. This report provides the first academic research on the nature and extent of LGBT conversion movements in Australia and the first detailed accounts of the impact of conversion therapy on the lives of LGBT Australians of faith. Such data is vital in determining what types of legal and community interventions are appropriate and most likely to be effective in addressing the harms associated with conversion therapy. The report makes recommendations for legal, policy and programmatic reform to respond to conversion practices in Australia. 

This report highlights the nature, extent and impact of LGBT conversion therapies in Australia. The report is designed to help government, support services and faith communities to better respond to those experiencing conflict between their gender identity or sexual orientation and their beliefs.

The study aimed to:

• illuminate the unique experiences and needs of LGBT people of faith who have undergone some form of religion-based conversion therapy; 

• outline the history, prevalence and changing nature of services provided to LGBT people of faith in Australia that pathologise same-sex attraction and gender diverse identities; 

• provide assistance to religious organisations and communities that promote and practise conversion therapy to provide more appropriate support to their LGBT members as they reconcile their religious, gender and sexual identities; 

• canvas international legal models and conduct a human rights based analysis of the issue and the competing rights and interests at play to inform the proposed legislative response; and 

• survey the existing legal landscape in Australia (with a particular focus on Victoria as an illustrative example) and consider legislative and regulatory options to restrict the promotion and provision of conversion therapies and similar practices, including by faith communities and organisations and both registered and unregistered health practitioners. 

Understanding and responding to this complex problem requires an interdisciplinary approach. In this report we have combined historical, social and legal research and analysis to enhance our understanding of conversion therapy practices in Australia and to make recommendations for reforms to prevent harm and promote justice in this area. Our methodology is stepped out in Chapter Two.

The short but dynamic history of the Australian religious LGBT conversion therapy movement is presented in Chapter Three. The historical review shows that attempts to reorient LGBT people are recent. In clinical medicine they were only ever experimental and were never successful.

Prior to the 1970s, the predominant religious approach to LGBT people was pastoral. When mainstream medicine ceased to experiment with the reorientation of LGBT people, faith-based conversion therapies and organisations emerged. These developed independently in Australia before becoming affiliated with like-minded international organisations in the 1980s.

In recent times, the conversion therapy movement has presented itself in more ethically acceptable postures, disguising its anti-LGBT ideology and reorientation efforts in the language of spiritual healing, mental health and religious liberty.

At the heart of this report, in Chapters Four and Five, are the voices and lived experiences of 15 LGBT people with experiences of conversion therapy, documented through social research. The participants engaged with various conversion therapy practices between 1986 and 2016 as part of their struggle to reconcile their sexuality or transgender identity with the beliefs and practices of their religious communities. For the majority of them, this has taken an extraordinary toll and they have ultimately been forced to choose between one part of themselves at the expense of another.

Those who have sacrificed their religious beliefs to be true to their sexuality or gender diverse identity have had to deal with the deep grief that comes with a loss of faith and being separated from their faith-based community, family and friends. Those who have remained faithful to the beliefs of their religious communities have often done so by denying their sexual feelings or gender diverse identity in order to pass as heterosexual and cisgender. Some live in a constant struggle to maintain their diverse gender, sexual identity and faith in the face of varying degrees of rejection from both LGBT and religious communities. 

International human rights experts and legislators in other countries have responded to the issue of conversion therapy and associated practices. Chapter Six reviews the available international human rights law, jurisprudence and commentary on conversion practices and provides an analysis of the competing interests and issues at play to determine the obligations upon States to intervene and prevent the harm occasioned to LGBT people by conversion therapies and related practices. While the focus of UN commentary and analysis has been on more extreme coercive or involuntary practices, international human rights law provides a useful analytical framework to explore the appropriate level of State intervention. A review is also provided of the legal responses to conversion practices that have been developed in countries around the world to inform the model that should be adopted in Australia. The existing law and regulatory landscape in Australia relevant to conversion practices is examined in Chapter Seven. Health law and regulations including complaints mechanisms, professional codes for health practitioners, child abuse reportable conduct schemes, consumer law, anti-discrimination law and other civil law avenues are surveyed.

Gaps in Australian law and recommendations for action to facilitate the end of conversion practices in this country are presented in Chapter Eight. The most important finding of our research is that responding to conversion practices in Australia requires a multi-faceted strategy. We propose a number of legislative and regulatory reforms, with a particular focus on young people given their vulnerability. However, these reforms will not touch many conversion practices that occur in faith-based settings between freely consenting adults. The most effective way to address the harms perpetuated in these environments is through targeted, evidence based interventions, made in partnership with affected communities. It is our hope that this research will raise awareness of the severity of the harms occasioned through conversion therapy, and support the development of more appropriate pastoral care for LGBT people of faith. Preventing Harm, Promoting Justice looks to a future where no person of faith is pressured to choose one valued and sacred part of themselves at the expense of another. It looks to a time where all faith communities recognise and value their LGBT members, where LGBT young people of faith are nurtured and protected and where LGBT people of faith can live and love openly without fear of abuse, ridicule or religious exclusion