Open Justice in NSW

The NSW Law Reform Commission has released a conbsultation paper regarding its Open Justice - Court and tribunal information: access, disclosure and publication onquiry.

The Commission's Terms of reference are to review and report on the operation of: 

1. legislative prohibitions on the disclosure or publication of NSW court and tribunal information, 

2. NSW court suppression and non-publication orders, and tribunal orders restricting disclosure of information, and 

3. access to information in NSW courts and tribunals; 

In particular, the Commission is to consider:

a) Any NSW legislation that affects access to, and disclosure and publication of, court and tribunal information, including: - The Court Suppression and Non-Publication Orders Act 2010 (NSW); - The Court Information Act 2010 (NSW); and - The Children (Criminal Proceedings) Act 1987. 

b) Whether the current arrangements strike the right balance between the proper administration of justice, the rights of victims and witnesses, privacy, confidentiality, public safety, the right to a fair trial, national security, commercial/business interests, and the public interest in open justice. 

c) The effectiveness of current enforcement provisions in achieving the right balance, including appeal rights. 

d) The appropriateness of legislative provisions prohibiting the identification of children and young people involved in civil and criminal proceedings, including prohibitions on the identification of adults convicted of offences committed as children and on the identification of deceased children associated with criminal proceedings. 

e) Whether, and to what extent, suppression and non-publication orders can remain effective in the digital environment, and whether there are any appropriate alternatives. 

f) The impact of any information access regime on the operation of NSW courts and tribunals.  

g) Whether, and to what extent, technology can be used to facilitate access to court and tribunal information. 

h) The findings of the Royal Commission into Institutional Responses to Child Sexual Abuse regarding the public interest in exposing child sexual abuse offending. 

i) Comparable legal and practical arrangements elsewhere in Australia and overseas. 

j) Any other relevant matters. 

The consultation questions are 

 The open court principle and its exceptions

Q 2.1: Statutory requirements to hold proceedings in private 

(1) Are the current laws that require certain proceedings to be closed to the public appropriate? Why or why not? (2) What changes, if any, should be made to these laws? (3) Are the current statutory exceptions to the requirement to hold proceedings in private appropriate? Why or why not? (4) Should there be standard exceptions that apply in all (or most) circumstances? If so, what should they be, and in what circumstances should they apply? 

Q 2.2: Statutory powers to hold proceedings in private 

(1) Are the existing laws that give courts discretionary powers to make exclusion orders appropriate? Why or why not? (2) What changes, if any, should be made to these existing laws? (3) Should there be standard grounds that need to be satisfied before a court can make a discretionary exclusion order in all (or most) circumstances? If so, what should they be and in what circumstances should they apply? (4) Should there be standard procedures by which an exclusion order could be made in all (or most) circumstances? If so, what should they be and in what circumstances should they apply? (5) Should there be a standard offence for breaching an exclusion order in most (or all) circumstances? If so: (a) what should be the elements of the offence and in what circumstances should it apply, and (b) what should be the penalty? 

Non-disclosure and suppression: statutory prohibitions 

Q 3.1: Statutory prohibitions on publishing or disclosing certain information As a matter of principle, should there ever be automatic statutory prohibitions on publishing or disclosing certain information? Why or why not? 

Q 3.2: Current statutory prohibitions on publishing or disclosing information (1) Are the current statutory prohibitions on publishing or disclosing certain information appropriate? Why or why not? (2) What changes, if any, should be made to the current statutory prohibitions? 

Q 3.3: Additional statutory prohibitions that may be needed What further information, if any, should be protected by automatic statutory prohibitions on publication or disclosure? 

Q 3.4: Types of action a statute may prohibit 

(1) Is the existing variety of types of action that a statute may prohibit justified? Why or why not? (2) What changes, if any, should be made? (3) Should a standard provision setting out the types of action that a statute may prohibit be developed? If so: (a) what should the provision say (b) how should key terms be defined, and (b) when should it apply? 

Q 3.5: Duration of the statutory prohibition 

(1) Should the statutory prohibitions on publishing or disclosing certain information always specify the duration of the prohibition? Why or why not? (2) What changes, if any, should be made to the existing duration provisions attached to statutory prohibitions on publishing or disclosing information? (3) What prohibitions, if any, should include a duration provision that do not already? What should these duration provisions say? 

Q 3.6: Application of the statutory prohibition to related proceedings 

In what circumstances, if any, should statutory prohibitions that protect the identities of people involved in proceedings apply in appeal or other related proceedings? 

3.7: When publication or disclosure of information should be permitted 

(1) Are the existing Q exceptions attached to statutory prohibitions on publishing or disclosing information appropriate? Why or why not? (2) What changes, if any, should be made to the existing exceptions? (3) What prohibitions, if any, should include exceptions that do not already? What should these be? (4) Should standard exceptions apply to all (or most) statutory prohibitions on publishing or disclosing information? If so, what should they be and in what circumstances should they apply? (5) Where exceptions allow a court to permit disclosure of protected information, what criteria, if any, should guide that court? 

Non-disclosure and suppression: discretionary orders 

Q 4.1: Actions targeted by an order 

(1) Are the existing definitions of “suppression order” and “non-publication order” in the Court Suppression and Non-publication Orders Act 2010 (NSW) appropriate? Why or why not? (2) What changes, if any, should be made to these definitions? (3) What other statutes should these definitions (with or without amendment) apply to? (4) What other changes (if any) should be made to these statutes in relation to the types of action an order may prevent? 

Q 4.2: Types of information that may be subject to an order 

(1) Are the current provisions that identify the types of information that may be the subject of a suppression or non-publication order, adequate? Why or why not? (2) What changes, if any, should be made to these provisions? 

Q 4.3: Consent to publication or disclosure 

What provision, if any, should be made about making an order where a person consents to the publication of information that would reveal their identity? 

Q 4.4: Limits to orders 

(1) Are the existing provisions relating to the scope of suppression and non-publication orders appropriate? Why or why not? (2) What changes, if any, should be made to existing provisions in relation to: (a) the exceptions and conditions that apply (b) the geographic limits of such orders (c) the duration of such orders, and (d) any other aspects of the scope of such orders? 

Q 4.5: Service and notice requirements 

(1) Are the existing procedures (under the Court Suppression and Non-publication Orders Act 2010 (NSW), or any other statute) for making suppression and non-publication orders adequate? Why or why not? (2) What changes, if any, should be made to existing procedures in relation to: (a) who may make an application for an order (b) when an order can be made (c) who can appear and be heard in an application for an order (d) the service and notice requirements for an order, or (e) any other matter? 

Q 4.6: Costs in proceedings for orders 

What provision, if any, should be made for cost orders in relation to applications for suppression or non-publication orders? 

Q 4.7: The public interest in open justice 

(1) Does the Court Suppression and Non-publication Orders Act 2010 (NSW) deal with the consideration of the public interest in open justice appropriately? Why or why not? (2) What changes, if any, should be made to the existing provision? (3) What provision, if any, should be made in other statutes that grant power to make suppression or non-publication orders for recognising the public interest in open justice? (4) What other considerations should be taken into account before an order is made? 

Q 4.8: The “necessary” test for making orders 

(1) What changes, if any, should be made to the “necessary” test? (2) Should a definition of “necessary” be included in the Court Suppression and Non-publication Act 2010 (NSW) or any other statute? If so, what should it be? 

Q 4.9: Grounds for making orders 

(1) Are the grounds for making suppression and non-publication orders under the Court Suppression and Non-publication Act 2010 (NSW) and other NSW statutes appropriate? Why or why not? (2) What changes, if any, should be made to them? 

Q 4.10: A requirement to give reasons 

(1) Should courts be required to give reasons for a decision to make or refuse to make a suppression or non-publication order in some or all circumstances? Why or why not? In what circumstances should this requirement apply? (2) If there was to be a requirement, how should it be expressed? 

Q 4.11: Interim orders 

(1) Is the current provision in the Court Suppression and Non-publication Orders Act 2010 (NSW) for interim orders appropriate and effective? Why or why not? (2) What changes, if any, should be made to the existing provision? (3) What provision, if any, should be made for interim orders in other statutes that grant powers to make suppression or non-publication orders? 

Q 4.12: Review and appeal of orders (1) Are the existing provisions relating to the review and appeal of suppression and non-publication orders appropriate? Why or why not? (2) What changes, if any, should be made to these provisions? (3) To what extent should review and appeal provisions be available for suppression and non-publication orders that are not covered by the Court Suppression and Non-publication Orders Act 2010 (NSW)? 

Q 4.13: Framing effective orders 

How could the Court Suppression and Non-publication Orders Act 2010 (NSW) provisions be amended to assist courts in framing more effective orders? 

Q 4.14: Interaction between the Court Suppression and Non-publication Orders Act 2010 (NSW) and other statutes 

(1) Should the Court Suppression and Non-publication Orders Act 2010 (NSW) only apply to situations that are not subject to other automatic prohibitions or provisions that allow suppression and non-publication orders to be made? Why or why not? (2) Which provisions for suppression and non-publication, if any, should be consolidated or standardised? 

Monitoring and enforcing prohibitions on publication and disclosure 

Q 5.1: Sources of sanctions for breaches of prohibitions 

(1) Is the current regime, in which some breaches of prohibitions on publication or disclosure of information are enforced through statutory offences and others are enforced by contempt proceedings, satisfactory? Why or why not? (2) What changes, if any, should be made to the existing arrangements? To what extent should there be greater consistency in the statutory offences? (3) In particular, what changes, if any, should be made in relation to: (a) a mental element for any offence (b) the definition of terms used for publication or disclosure (c) exceptions to any of the statutory offences, or (d) the current maximum penalties for any statutory offences? (4) What changes, if any, should be made to the current arrangements for enforcing contempt of court in relation to breaches of prohibitions on publication or disclosure? 

Q 5.2: Monitoring prohibitions on publication and disclosure 

(1) How should prohibitions on publication and disclosure of information be monitored? (2) Is public transparency about the number of people who are proceeded against for offences involving breaches of the prohibitions necessary or desirable? Why or why not? How could public transparency about these numbers be improved? 

Q 5.3: Enforcing prohibitions on publication and disclosure 

(1) Are the existing arrangements for managing breaches of prohibitions on publication and disclosure of information effective? Why or why not? (2) If not, what changes should be made? 

Q 5.4: Challenges in enforcing prohibitions on publication or disclosure 

(1) What changes, if any, could make it easier for justice agencies to identify and prosecute people who breach prohibitions on publication or disclosure of information? (2) Should there be a scheme for mutual recognition and enforcement of suppression and non-publication orders across Australia? If so, what would the scheme entail? (3) How should the law and/or justice agencies deal with situations where prohibitions on the publication or disclosure of information under NSW law are breached outside Australia? (4) Should the time limits for enforcing the statutory offences considered in this Chapter be extended? Why or why not? 

Access to information 

Q 6.1: Consolidation of the court information access regimes in NSW 

(1) Should the regimes governing access to court information be consolidated? Why or why not? (2) If so, how should the regimes be consolidated? (3) What principles and rules should underpin a consolidated regime? 

Q 6.2: Discretion to permit or deny access to information 

(1) In what circumstances, if any, should courts have discretion to permit or deny access to court information? (2) In what circumstances, if any, should information be available as of right? 

Q 6.3: Considerations in determining access requests 

(1) What, if any, standard considerations or principles should all (or most) courts apply when determining an access request? (2) Are there any circumstances that would warrant different considerations to the standard considerations being applied? If so: (a) what circumstances, and (b) what should the considerations be? 

Q 6.4: Types of court information available for access 

(1) What types of court information should be available for access? (2) Should different access rules apply to different types of information? 

Q 6.5: Prohibiting access to court information Should access to court information be prohibited in certain circumstances? If so, when? 

Q 6.6: Who can access court information? 

Who should be able to access what types of court information and on what conditions? 

Q 6.7: Privacy protections for personal information 

How should the privacy of personal identification information contained in court information be protected? 

Q 6.8: Applying for access to court information 

(1) What procedures, if any, should apply when a person seeks access to court information? (2) What guidance, if any, should be given in relation to these procedures? 

Q 6.9: How access to court information should be provided 

(1) By what methods should courts provide a person with access to court information? (2) Should the available methods be different depending on the applicant and the situation? If so, how? 

Q 6.10: Fees for accessing information 

(1) In what circumstances should a person be charged a fee to access court information? (2) In what circumstances should any fees for accessing information be waived or reduced? 

Q 6.11: A national access regime 

Should there be a national regime governing access to documents? Why or why not? 

Q 6.12: Public availability of judgments and decisions 

How could NSW courts and tribunals improve access to judgments and decisions? 

Protections for children and young people 

Q 7.1: Criminal proceedings – prohibition on the publication and disclosure of identifying information 

(1) Should there continue to be a general prohibition on publishing or broadcasting the identities of children involved in criminal proceedings in NSW? Why or why not? (2) What changes, if any, should be made to the existing prohibition and the exceptions to it? 

Q 7.2: Criminal proceedings – closed court orders (1) Should criminal proceedings involving children continue to be held in closed court as a rule? Why or why not? (2) Are the current exceptions to the rule appropriate? If not, what changes should be made? 

Q 7.3: Criminal diversion processes 

(1) Is the prohibition on publishing or broadcasting the identities of young offenders who take part in criminal diversion processes appropriate? Why or why not? (2) What changes, if any, should be made to the existing prohibition? 

Q 7.4: Proceedings for apprehended domestic violence orders 

(1) Is the prohibition on publishing the identities of children involved in apprehended domestic violence order proceedings appropriate? Why or why not? (2) What changes, if any, should be made to the existing prohibition? 

Q 7.5: Care and protection proceedings – prohibition on the publication and disclosure of identifying information 

(1) Is the prohibition on publishing or broadcasting the identities of children involved in care and protection proceedings appropriate? Why or why not? (2) What changes, if any, should be made to the existing prohibition and exceptions? 

Q 7.6: Care and protection proceedings – closed court orders 

(1) Are the existing provisions relating to the exclusion of people (including the child or young person themselves) from court and non-court proceedings under the Children and Young Persons (Care and Protection) Act 1998 (NSW) appropriate? Why, or why not? (2) What changes, if any, should be made to these provisions? 

Q 7.7: Adoption proceedings 

(1) Should there continue to be restrictions on the publication or disclosure of material that identifies people involved in adoption proceedings? Why, or why not? (2) What changes, if any, should be made to the existing restrictions and exceptions? (3) Should adoption proceedings continue to be held in closed court? Why, or why not? (4) What changes, if any, should be made to the existing closed court provisions? 

Q 7.8: Parentage and surrogacy proceedings 

(1) Should there continue to be prohibitions on the publication or disclosure of material relating to parentage and surrogacy proceedings? Why or why not? (2) What changes should be made to the existing restrictions? (3) Should parentage and surrogacy proceedings continue to be held in closed court? Why or why not? (4) What changes, if any, should be made to the existing closed court provisions? 

Q 7.9: Other proceedings 

What further protections, if any, should there be against the publication and disclosure of, or public access to, types of legal proceedings involving children other than those to which protections already apply? 

Victims and witnesses: privacy protections and access to information 

Q 8.1: General protections for victims and witnesses (1) Are the general privacy protections for victims and witnesses in NSW appropriate? Why or why not? (2) What changes, if any, should be made? 

Q 8.2: Current protections for specific types of victims and witnesses 

(1) Are the privacy protections for specific types of victims and witnesses in NSW appropriate? Why or why not? (2) What changes, if any, should be made? 

Q 8.3: Protections for other types of victims and witnesses 

What privacy protections, if any, are needed for other types of victims and witnesses? 

Q 8.4: Access to court information by victims 

(1) Are the current arrangements governing access to court information by victims appropriate? Why or why not? (2) What changes, if any, should be made? 

Protections for sexual offence complainants 

Q  9.1: The prohibition on publishing the identities of sexual offence complainants 

(1) Is the prohibition on publishing the identities of complainants in sexual offence proceedings and the exceptions to the prohibition appropriate? Why or why not? (2) What changes, if any, should be made? 

Q 9.2: Closing courts during sexual offence proceedings 

(1) Are the situations in which courts may be closed during sexual offence proceedings appropriate? Why or why not? (2) What changes, if any, should be made?  

Media access to information 

Q 10.1: Media access to court information in NSW 

(1) Are the current arrangements for the media to access court information in relation to both civil and criminal proceedings appropriate? Why or why not? (2) Should the media have special privileges to access court information in relation to civil and/or criminal proceedings? Why or why not? (3) What changes, if any, should be made to the current arrangements, including in relation to: (a) the nature of the access provided (b) the types of documents that may be accessed (c) time limits on access, and (d) application procedures? 

Q 10.2: Media access to court proceedings 

(1) Is the current regime governing media access to proceedings appropriate and workable? Why or why not? (2) What changes, if any, should be made to the current regime, including in relation to: (a) prescribed sexual offence proceedings (b) proceedings involving children (c) accessing “virtual courtrooms”, and (d) orders excluding people under the Court Security Act 2005 (NSW)? 

Q 10.3: Broadcasting court proceedings 

(1) Are the rules that apply to media recording and broadcasting of court proceedings appropriate? Why or why not? (2) What changes, if any, should be made? 

Q 10.4: Impact of publication restrictions on the media 

(1) Are the laws that restrict the media from publishing or broadcasting information relating to court proceedings appropriate? Why or why not? (2) What changes, if any, should be made? (3) In relation to suppression and non-publication orders: (a) are the interests of the media adequately reflected in the grounds for making such orders? (b) is the list of people with standing to be heard in applications for suppression or non-publication orders appropriate? (c) are the current arrangements for communicating the existence of suppression and non-publication orders adequate? (4) What changes, if any, should be made to the laws and procedures relating to the media and suppression and non-publication orders? 

Q 10.5: Contemporary media 

(1) Are the current definitions and use of the terms “media” and “news media organisation” appropriate? Why or why not? (2) What changes, if any, should be made to these terms and their definitions? (3) How else could members of the media be identified for the purposes of the laws dealing with media access to court information and proceedings? 

Researcher access to information 

Q 11.1: Researcher access to information 

(1) What changes, if any, should be made to the existing arrangements for providing researchers with access to court information? (2) In particular, what changes, if any, should be made in relation to: (a) a centralised scheme for giving researchers access to court information, including a research committee (b) the kinds of researchers who should be able to access court information (c) the kinds of research that court information should be available for (d) the other considerations that may be relevant to granting a researcher access to court information (e) the type of court information researchers should be able to access (f) the types of conditions that should be placed on researchers who are given access to court information (g) applicable fees and arrangements for fee waiver (h) access to archived court records, and (i) requests to collate data and/or statistics? 

Digital technology and open justice 

Q 12.1: Online courts 

If virtual courtrooms are to be available, what provision, if any, should be made to ensure that: (a) open justice principles are given effect to, where possible, and (b) risks of prohibited disclosure or publication are managed effectively? 

Q 12.2: Electronic access to court information 

(1) What arrangements, if any, should be made for electronic access to court information? (2) In particular, what should the arrangements be in relation to: (a) the type of information that can be accessed (b) who can access the information, and (c) any necessary protections against unauthorised disclosure or publication of such information? 

Q 12.3: Suppression and non-publication orders in the digital environment 

(1) What, if anything, can be done to deal with situations where suppression and non-publication orders under NSW law are breached outside Australia? (2) In particular, what, if anything can be done to minimise the risk of offending content affecting the fairness of a trial? 

Q 12.4: Tweeting and posting in court 

(1) Are current provisions regulating use of social media by the media and public in court adequate? Why or why not? (2) What changes, if any, should be made to the existing provisions? 

Other proposals for change 

Q 13.1: A register of orders 

(1) Should there be a publicly accessible register of suppression and non-publication orders made by NSW courts? Why or why not? (2) If so: (a) who should be able to access the register, (b) what details should be included in the register, and (c) who should build and maintain the register? 

Q 13.2: An open justice advocate 

(1) Is there a need for an advocate to appear and be heard in applications for suppression and non-publication orders? Why or why not? (2) If so, what responsibilities should the advocate have? 

Q 13.3: Education initiatives 

(1) What education initiatives could be implemented to improve people’s understanding of open justice and associated restrictions? (2) Who should be responsible for delivering those initiatives? 

Q 13.4: Other ways to avoid juror prejudice 

(1) Could the juror oath and affirmation be amended to better ensure jurors appreciate, and take seriously, the obligation not to seek or rely on potentially prejudicial information? If so, how could they be improved? (2) Is the current Jury Act 1977 (NSW) offence of making inquiries effective? If not, how could it be improved? (3) Are the current jury directions about avoiding media publicity and making inquiries about the case appropriate? If not, what reforms are required? (4) Could improving the way that juror questions are managed better ensure jurors do not conduct their own inquires? If so, what improvements could be made? (5) Could more educational guidance be provided to jurors about avoiding media publicity and making inquiries prior to the trial? If so, what should this guidance say? (6) Could pre-trial questioning of jurors be used more effectively to determine which potential jurors have been exposed to prejudicial information? If so, how? (7) Should NSW adopt the Queensland approach of allowing judge alone trials where there has been significant pre-trial publicity that may affect jury deliberations? Why or why not? (8) Are there any other ways in which current law or practice can be improved to prevent jurors from being influenced by potentially prejudicial information?

CryptoAssets and the Crypto Economy

The UK Financial Conduct Authority Research Note on Cryptoasset Consumer Research 2020 states 

In October 2018, we published a joint report, alongside the Bank of England and the Government, as part of a UK Domestic Taskforce on Cryptoassets. In the document, we provided an overview of the state of the UK cryptoassets market and committed to several actions. Whilst the Taskforce report identified 3 major risks of harm associated with cryptoassets - to market integrity, of financial crime and to consumers - we also acknowledged the limited amount of detailed, credible evidence on this rapidly-evolving market. 

The FCA commissioned research to gain insight into the size of the market and identify potential harm. In March 2019, we published consumer research into ‘consumer attitudes and awareness of cryptoassets’. Through a nationally representative survey of 2,132 UK consumers and 31 in-depth interviews, this research provided invaluable insights into the size of the market and where potential harms could be found. It concluded that the size of the market was relatively small with 3% of consumers having ever bought cryptoassets, spending on average £200. It also showed that awareness of cryptoassets among the general population was low. 

Whilst these results were informative and taught us much about consumers’ attitudes and motivations in relation to cryptoassets, both aspects of the research had certain limitations. The qualitative research was exploratory and reached a sample of 31. The nationally representative survey started with 2,132 participants, but the specific follow- up questions related to cryptocurrency ownership were only applicable to a small sub-set of 51 adults, as the remaining individuals in the overall study population had not purchased cryptocurrencies. 

A year on, we commissioned follow-up quantitative research among a larger sample of cryptoasset owners, to ensure our understanding of consumer behaviour and areas of potential harm remain accurate. This research was designed to help us build on the previously gained insight into how consumers interact with the cryptoassets market. 

Through a longer survey and larger sample sizes, we have been able to understand whether and how the market has changed over the past year. Thirteen current or former cryptocurrency owners also provided video interviews to help us gain deeper insights from the consumer perspective. This research relates to cryptoassets that are, generally, outside of the regulatory perimeter. They are unregulated transferable cryptoasset tokens including well-known tokens such as Bitcoin, Ether and Ripple. As they are unregulated, we do not otherwise hold significant relevant data about them. The market sizing data, insight into consumer profiles and attitudes towards cryptoassets in the UK included in this research is otherwise unavailable. 

... To note, we chose to use the term ‘cryptocurrency’ throughout the questionnaire. This term is more widely used in public domain than the broader ‘cryptoasset’ term we tend to prefer. We also use ‘exchange’ to represent ‘cryptoasset trading platforms’, given ‘exchange’ is widely understood and used by consumers.

The FCA's Key findings are - 

We estimate 3.86% of the general population currently own cryptocurrencies. This amounts to approximately 1.9 million adults with the UK population (over 18) taken to be approximately 50 million. 

• 75% of consumers who own cryptocurrencies hold under £1,000. 

• Technical knowledge appears high among most cryptocurrencies owners. Most consumers seem to understand the risks associated with the lack of protections, the high volatility of the product and have some understanding of the underlying technology. 

• Nevertheless, the lack of such knowledge among some presents potential consumer harm to consumers. 11% of current and previous cryptocurrency owners thought they were protected. This amounts to approximately 300,000 adults. 

• The most popular reason for consumers buying cryptocurrencies was as ‘as a gamble that could make or lose money’, acknowledging that prices are volatile. 

• Cryptocurrency exchanges are a key market participant and most consumers used non-UK based exchanges. 

• Adverts are important components of the consumer journey with the ability to influence consumer sentiment. Other mediums such as traditional media and online news also impact consumer behaviour. 

• 45% of all current and previous cryptocurrency owners said they had seen a cryptocurrency related advert. Of these, 35% or approximately 400,000 adults, stated it made the purchase more likely. 16% of current and previous cryptocurrency owners were influenced by an advert. 

Year on year differences 

• The research findings highlight a statistically significant increase from 3% in the 2019 FCA Consumer Research to 5.35% this year in those who hold or held cryptocurrencies. This represents an increase of 2.35 percentage points, from approximately 1.5 million people to 2.6 million people. 

• This year 27% had never heard of cryptocurrencies, compared with 58% in our survey last year. This represents a statistically significant increase in the percentage of those being aware of cryptocurrencies from 42% to 73% of adults. 

• The media’s role in raising consumer awareness about cryptocurrencies has risen.

'The Size of the Crypto Economy: Calculating Market Shares of Cryptoassets, Exchanges and Mining Pools' by Konstantinos Stylianou and Nic Carter in (2020) 16(4) Journal of Competition Law & Economics 511–551 comments 

Cryptoassets and related actors such as crypto exchanges and mining pools are now fully integrated into mainstream economic activity. A necessary corollary is that they have attracted heightened regulatory and investor scrutiny. Although some rules and obligations apply uniformly across all economic actors in a given sector, many others, such as antitrust laws and some financial regulations as well as investor decisions are informed by actors’ relative economic size—meaning that those with larger market shares can become more attractive regulatory or investing targets. It is therefore a foundational issue to properly measure the economic footprint of economic actors in the crypto economy, for otherwise regulatory oversight and investor decisions risk being misled. This has proven a remarkably difficult exercise for multiple reasons including unfamiliarity with the underlying technology and role of involved actors, lack of understanding of the applicable metrics’ economic significance, and the unreliability of self-reported statistics, partly enabled by lack of regulation. Acknowledging the centrality of cryptoasset size in a number of regulatory and policymaking areas and the fact that previous attempts have been incomplete, simplistic, or even plainly wrong, this paper presents the first systematic examination of the economic footprint of cryptoassets and their constituent actors—mining pools and crypto exchanges. We aim to achieve a number of objectives: to introduce, identify, and organize all relevant and meaningful metrics of crypto economic actors market share calculation; to develop associations between metrics, and to explain their meaning, application, and limitations so that it becomes obvious in which context metrics can be useful or not, and what the potential caveats are; and to present rich, curated, and vetted data to illustrate metrics and their use in measuring the shares of crypto economic actors in their respective markets. The result is a comprehensive guidance into the size of the crypto economy.

'Regulating Libra' by Dirk A Zetzsche, Ross P Buckley and Douglas W Arner in (2020) Oxford Journal of Legal Studies comments 

Libra is the first private cryptocurrency with the potential to change the landscape of global payment and monetary systems. Due to the scale and reach provided by its affiliation with Facebook, the question is not whether, but how, to regulate it. This article introduces the Libra project and analyses the potential responses open to regulators worldwide. We conclude that perhaps the greatest impact will come not from Libra itself, but rather from reactions to it, particularly by other BigTechs, incumbent financial institutions and governments around the world.

COVID and National Security

The report by the Victorian Legislative Council  Legal and Social Issues Committee into the Victorian Government’s COVID–19 contact tracing system and testing regime deals with the Committee's reference 

to inquire into, consider and monitor the capacity and fitness for purpose of the Victorian Government’s COVID-19 contact tracing system and testing regime, and in doing so consult with businesses, including small business representatives, the community sector and Victoria’s multicultural communities

It features the following Findings and recommendations 

Why did the Committee undertake this inquiry? 

FINDING 1: Despite the effective elimination of the COVID-19 virus in Victoria after a second wave of infections, Victorians need to be confident that the public health system is prepared to effectively respond to new COVID-19 outbreaks. 

RECOMMENDATION 1: That the Government engage with the evidence from the experience of the pandemic that our public health system requires review, testing and enhancement and a more decentralised, community-based approach to fulfil its function of identifying and preventing or minimising public health risks to the community.  

What did this inquiry not address and why? 

FINDING 2: A robust response to COVID-19 in any jurisdiction should include a multi-tiered approach. Contact tracing and testing are only two, albeit critical, elements amongst a range of necessary measures in effective communicable disease control. 

RECOMMENDATION 2: That the Public Accounts and Estimates Committee examine the following issues in depth during their inquiry into the COVID-19 pandemic response: • Wrap-around services that could be implemented to support individuals who are unable to isolate in a hotel setting because of health reasons. • The cost effectiveness of the contact tracing system and testing regime including examining ongoing contracts and their efficacy. • The impact of restrictions that have been implemented, including determining if their benefits have outweighed the social; physical and psychological health; and economic outcomes. 

How has Victoria’s contact tracing system and testing regime evolved since January 2020? 

FINDING 3: Contact tracing is part of a wider process of detection of positive cases and isolation of close contacts. While it is important to identify, or ‘trace’ the contacts of a confirmed positive case, the communication, engagement, and information provided by government about isolation processes and contact tracing itself are important factors that must be embedded within effective contact tracing management. 

FINDING 4: Maintaining ease of access to testing will give Victorians confidence that they can be tested without delay. 

RECOMMENDATION 3: That the Victorian Government ensure that Victoria’s testing regime includes diverse processes for different cohorts and testing sites have good territorial reach. 

FINDING 5: All of Metropolitan Melbourne should be within 10km of a fixed-testing site and there should be significant coverage with testing sites across regional and rural Victoria. 

FINDING 6: Some general practitioners initiated and undertook asymptomatic testing in their communities. 

FINDING 7: The Victorian Government is developing alternative testing modalities including at-home testing, rapid response testing, surveillance testing, asymptomatic testing and wastewater testing. 

FINDING 8: Asymptomatic testing is an important tool for an enhanced testing regime. 

RECOMMENDATION 4: Asymptomatic testing should continue to be voluntary for all Victorians. 

FINDING 9: The Victorian Government did not initiate wastewater surveillance until after the second wave. 

RECOMMENDATION 5: Pending further research into its validity, the Victorian Government should continue to incorporate wastewater testing into an ongoing disease surveillance program.   

RECOMMENDATION 6: The Committee encourages further research into and development of saliva testing technology and other non-invasive, quick turn-around technologies, for wider roll out in industry and time-critical situations. 

FINDING 10: The use of manual data entry processes at the beginning of the pandemic meant that the system for contact tracing and recording of testing was not fit to deal with any escalation in cases and led to significant errors. 

FINDING 11: Salesforce first introduced their end-to-end system to the Victorian Government in March 2020. 

FINDING 12: The Victorian Government engaged IBM for an analytics platform. The Committee regards the engagement as a misguided and costly mistake given the platform’s known lack of AI capacity. 

FINDING 13: Appropriate data capture systems are now being rolled out throughout the state, however the length of time between the first COVID-19 case in Victoria on 25 January 2020 and the rollout of a digital test tracking system piloted in September and October 2020 is disappointing and inadequate. 

FINDING 14: Victoria’s redeveloped contact tracing system demonstrates that the Victorian Government responded to lessons learnt throughout the pandemic. Nevertheless, further refinements are needed to ensure that it is fit for purpose. 

FINDING 15: Local knowledge is an indispensable tool in establishing an efficient contact tracing system and broader public health response. Regional presence and local case managers are essential for establishing and maintaining a robust system of contact tracing and testing. Such an approach would have facilitated greater awareness of interactions of community members had it been in place before the height of the pandemic. 

FINDING 16: Victoria’s highly centralised healthcare system did not have the means to deal with regional cases effectively, which contributed to confusion and delays in contact tracing and test result management. 

RECOMMENDATION 7: That the Victorian Government participate in the development, establishment and use of a national contact tracing Data Exchange as recommended by the National Contact Tracing Review. 

What are the key performance indicators and benchmarks for COVID‐19 contact tracing and testing? 

RECOMMENDATION 8: That the Victorian Government is guided by the following indicators in relation to the ongoing development of their testing regime so that Victorians can be confident that the regime has capacity: • easily accessible and reliable tests with clear criteria for getting tested • tests are accurately recorded, and results are received by the patient within 24 hours • surge workforce is available at short notice • multiple testing strategies can be deployed (fixed, rapid response, mobile units). 

FINDING 18: Test results should be available within 24 hours of a sample being taken, maximising the likelihood that people will isolate themselves while awaiting test results. It should be no more than 48 hours in total from the time a test sample is first taken to the point at which close contacts of a confirmed case are notified that they must quarantine. Victoria is sitting well within the optimal range in relation to these metrics at present. 

FINDING 19: The following are indicators of a contact tracing system that has the capacity to respond to a range of COVID-19 scenarios: • The system can manage four new cases per day per million population (stress tested). It should be extreme stress tested at ten times the number (40 new cases per day per million population). • The number of hours from collecting the positive specimen to notifying the patient of their results should be less than 24 hours. • The number of hours from collecting the patient’s COVID-19 specimen to notifying their close contacts that they must quarantine is fewer than 48 hours for more than 90% of cases (both of these measures should be qualified with at least 80% of primary close contacts being notified). 

FINDING 17: Data Exchange is required to assist effective contact tracing between jurisdictions to manage future outbreaks. 

How does Victoria measure up against key performance indicators and benchmarks? 

RECOMMENDATION 9: That the Victorian Government be guided by the following indicators in relation to the ongoing development of a contact tracing system so that Victorians can be confident that it is fit for purpose: • facilitates multilingual communications through in-language resources • cost-effectiveness • technology captures nuances for each case and contact (number of persons per household, language, quarantine stage, time since test and more) • risk-based prioritisation during super surges • capacity to analyse data and identify links. 

FINDING 20: An effective contact tracing system relies on a highly trained and qualified workforce built from a jurisdiction’s existing public health sector. This should be extended to a surge workforce where possible, or alternatively training tools should be developed to ensure that people employed as part of a surge workforce are properly equipped to manage contact tracing. 

FINDING 21: Victoria is well placed to continue to provide accessible testing in relation to proximity and cost and has established a capacity to collect a high volume of PCR tests. 

FINDING 22: The Victorian Government has increased its capacity to manage a greater number of tests within the recommended timeframe between samples taken and results being received. 

FINDING 23: The current COVID-19 testing regime is fit for purpose to monitor, process, identify, record and communicate up to 15,000 test results per day within a 24-hour window. The Victorian Government is investing in additional capacity which would allow 35,000 tests to be processed per day. 

FINDING 24: The introduction of a Customer Relationship Management system was a highly effective measure to facilitate rapid contact tracing. 

FINDING 25: The external workforces contracted to provide system support were not a cost-effective choice, nor were some of those employed qualified to understand all the public health elements of the role. 

RECOMMENDATION 10: That the Victorian Government conduct modelling studies on its digital contact tracing system to better understand its expected and potential capacity. The results of these studies should be made public. 

FINDING 26: Due to the late commencement of implementation of a digital contact tracing system at the end of August 2020, the Committee was unable to determine if the system has the appropriate responsiveness and robustness. 

RECOMMENDATION 11: That the Victorian Government establish a trained reserve workforce for future public health emergencies. 

FINDING 27: The adoption of an end-to-end automated process for enabling and recording contact tracing and testing results occurred too late - after the second wave of infections in Victoria. This is despite approaches by technology providers with proven capacity in other contexts and jurisdictions made early in the Victorian pandemic. 

FINDING 28: Scalability is a key measure in an adaptable and fit for purpose testing and contact tracing system. This includes technical capability, testing and pathology capacity, and a flexible workforce that can be activated or scaled down on short notice. 

FINDING 29: Assessing the capacity and effectiveness of contact tracing is difficult because the system has only recently been redeveloped and some functions are yet to be rolled out and tested with the arrival of international positive cases. 

What issues have been raised about contact tracing and testing in Victoria, and have they been resolved? 

FINDING 30: The Victorian Government had previously received reports which identified the need for additional contact tracing staffing resources but to the Committee’s knowledge did not act on them. 

RECOMMENDATION 12: That the Victorian Government increase the number of staff in the Department of Health and Human Service’s public health units and contact tracing teams so that it is line with current recommendations. 

FINDING 31: Despite the availability of the Victorian health management plan for pandemic influenza since 2014, there has been limited investment in and commitment to pandemic preparedness from the Victorian Government. This has resulted in the public health response and contact tracing being driven by a reactive crisis response leading to poor decision-making and unnecessary delays. 

FINDING 32: Greater transparency in relation to processes and a willingness to acknowledge and take responsibility for failings by the Victorian Government would increase public trust and confidence in the capacity of the contact tracing system and testing regime. 

FINDING 33: There was a lack of transparency from the Victorian Government in relation to the cost of the testing regime. 

FINDING 34: The Committee was unable to determine if the system was cost-effective with the data supplied to the inquiry . 

RECOMMENDATION 13: That the Victorian Government publish accurate records of financial commitments and costings involved with the testing regime and contact tracing system, including resourcing and staffing by third parties. 

FINDING 35: The Victorian Government testing regime exceeded its capacity, both in public and private pathology labs, at the beginning of, and throughout, the second wave. 

FINDING 36: A lack of clear communication and conflicting advice about testing criteria from Federal and State government agencies was an obstacle to Victorians accessing testing and prevented some healthcare providers delivering testing services. 

RECOMMENDATION 14: That the Victorian Government engage in further consultation with other jurisdictions to ensure consistency of testing criteria. 

FINDING 37: The Victorian Government was significantly underprepared to effectively collect, manage and utilise the key data required to accurately understand the State’s performance up to October 2020. 

FINDING 38: Appropriate data capture systems are being rolled out throughout the state, however the time between the first COVID-19 test in Victoria and the rollout of a test tracking system is insufficient and inadequate. 

RECOMMENDATION 15: That the Victorian Government mandate the use of Test Tracker for all test sites and develop real-time reporting between Test Tracker and the appropriate databases. 

FINDING 39: More transparency from the Victorian Government would increase public trust and confidence in the capacity of the testing regime and contact tracing system. 

RECOMMENDATION 16: That the Victorian Government provide evidence to the Victorian public about the basis of its contact tracing and testing response to COVID-19 in relation to operational processes implemented and procurement decisions. 

FINDING 40: General practitioners were not consulted in the development of the contact tracing system and testing regime or formally involved in developing or supporting the official crisis response. Excluding general practitioners from the official system of contact tracing and the testing regime led to a less effective, less responsive and potentially more costly response to COVID-19. 

FINDING 41: Because general practitioners were excluded from the official response to COVID-19 the system did not include effective measures to ensure general practices were made aware of positive cases amongst their patient cohort. 

RECOMMENDATION 17: That the Victorian Government, through the Chief Medical Officer, embed general practitioners into the system of management of contact tracing and testing as part of a localised, collaborative and more person-centred approach. 

FINDING 42: By better engaging with trusted representatives throughout the community, the Government may have been able to prevent widespread transmission through vulnerable communities. The Government’s approach to culturally and linguistically diverse communities was a failure to coordinate a system effective for all Victorians. Greater work needs to be done to ensure the testing regime and contact tracing system is fit for purpose to and makes genuine provisions for all Victorians. 

FINDING 43: The Victorian Government’s CALD Community Task Force was established and includes multicultural and multifaith leaders. 

RECOMMENDATION 18: That the Victorian Government’s CALD Community Task Force include health workers such as general practitioners. 

FINDING 44: Community leaders, including general practitioners, are trusted voices in their communities and can assist with ensuring their communities understand the processes of COVID-19 testing and contact tracing. 

FINDING 45: Due to a lack of clear and accessible guidance from the Victorian Government some eligible small businesses are not aware of their legislative obligations to assist contact tracing by recording personal information of any persons on their premises for over 15 minutes. 

RECOMMENDATION 19: That the Victorian Government work with unions, industry groups and associations to develop clear and accessible guidance for businesses on their obligations for contact tracing record keeping, particularly around setting up and using digital systems such as QR codes. 

FINDING 46: Businesses that record personal information for contact tracing must store the information for 28 days, unless another statutory requirement requires it to be retained. After 28 days, this information must be destroyed as soon as practicable. 

FINDING 47: There is a lack of clear, publicly available information on the collection, storage and usage of information gathered by contact tracers. 

At the national level the Joint Standing Committee on Foreign Affairs, Defence and Trade report on Implications of the COVID-19 pandemic for Australia’s foreign affairs, defence and trade (which quotes my submission) features the following recommendations -

Recommendation 1  The Committee recommends that within 12 months the Australian Government define which critical national systems are essential to Australia’s ability to function as a secure, prosperous, first world nation. 

Recommendation 2  The Committee recommends that the Australian Government develop a national resilience framework to assess which elements of Australia’s critical national systems are vulnerable to high-consequence supply chain disruptions. 

Recommendation 3  The Committee recommends that the Australian Government develop specific shared objectives with allies and regional partners to increase global support for the rules-based order that underpins the global system of security, international relations and trade. 

Recommendation 4  The Committee recommends that the Australian Government use the recent DFAT audit of Australia’s engagement with UN and other international organisations to identify those that are a priority for Australia’s national interest. 

Recommendation 5  The Committee recommends that the Australian Government develop a detailed agenda of the reforms necessary in priority international organisations and an implementation plan to lead the case for change, working cooperatively with like-minded countries to restore confidence and investment in priority multilateral institutions. 

Recommendation 6  The Committee recommends that the Prime Minister lead deliberations in the National Cabinet to produce an agreed national framework to ensure that COVID-19 related measures imposed by states and territories do not prevent the timely change-over of international maritime crews, a situation which has led to unsafe and unreasonable workplace conditions which breach Australia’s ILO obligations. 

Recommendation 7  The Committee recommends that National Cabinet develop the processes agreed as an outcome of Recommendation 6 such that Australia has an agreed framework to ensure all states and territories remain compliant with national obligations in the event of future crises that require responses falling under the authority of sub-national governments. 

Recommendation 8   The Committee recommends that within 12 months the Australian Government identify those elements of Australia’s critical national systems where supply chains are entirely or significantly dependent on companies which are likely to be subject to extrajudicial directions or coercive interference from a foreign government that place continuity of supply at risk of failure. 

Recommendation 9  To prevent failure of critical nationals systems, the Committee recommends the Government, in consultation with industry, develop plans and a timeframe to move ‘at risk’ supply chains for critical national systems to sovereign Australian suppliers or where appropriate, to other trusted, transparent arrangements with companies in nations having a strong record of adherence to the rule of law. 

Recommendation 10  The Committee recommends that the Australian Government initiate parallel Track-1 (Government to Government) dialogue to place an assurance framework around the establishment of commercial arrangements pertaining to supply chains for critical national systems. Where appropriate, this should include reciprocal assurances of supply by Australia to our partners’ critical national systems. 

Recommendation 11  The Committee recommends that within 6 months the Australian Government identify an initial tranche of Australia’s key national strengths in the potential supply of resources, elaborately transformed manufactures and services in critical areas and assess any barriers to the scaling up and commercial sustainability of such industries that would prevent Australia becoming a trusted and transparent partner of choice for like-minded nations. 

Recommendation 12  The Committee recommends that within 12 months the Australian Government conduct a cross portfolio review and where it supports Australia’s strategic interests, develop and implement competitive processes to provide targeted support for Australian industry sectors, enabling them to become trusted suppliers to overseas consumers of critical resources, elaborately transformed manufactures and services. 

Recommendation 13  The Committee recommends that within 24 months the Australian Government ensure that where necessary, Australia regenerates and sustains the test and certification capability to provide assurance that Australian sourced supplies and elaborately transformed manufactures for critical national systems, meet the relevant Australian/New Zealand standards (or international equivalents where applicable). This same capability must be able to verify to a suitable level of confidence that imported enablers to critical national systems are fit for purpose. 

Recommendation 14  The Committee recommends that Australian Government support for Australian industry sectors supporting identified critical national systems move away from purely grant-based assistance to the intentional use of procurement to build and sustain sovereign capability. 

Recommendation 15  The Committee recommends that the CPRs and Accountable Authority instructions be modified to reflect Recommendation 14 by explicitly requiring procurement authorities to consider how the generation and sustainment of sovereign industry sectors that supply to critical national systems could be facilitated by: Aggregation of demand across Commonwealth departments and where agreed, state government requirements; and Phasing of procurement where the timeframe for delivery can be optimised to meet operational requirements and Australian industry capacity. 

Recommendation 16  The Committee recommends that a new sub-paragraph should be added to paragraph 4.5 of the CPRs dealing with assessing value for money. The sub-paragraph should have the effect that: officials must give a priority weighting to the extent to which a proposed project or individual procurement contributes to the generation or sustainment of a sovereign Australian industry capability which is providing nominated supplies to a critical national system.

Discipline

'‘There is no sick leave at the university’: how sick leave constructs the good employee' by Chrystal Jaye, Geoff Noller, Lauralie Richard and Claire Amos in (2020) Anthropology and Medicine comments 

 This paper examines the role of sick leave in constructing the identity of a good worker. The setting is a public funded New Zealand university. Within a qualitative research design, interviews were conducted with a range of employees and managers about their use and management of sick leave. Sick leave entitlements, use, and management encompass moral discourses that impact upon worker identity. Normalising discourses generated by compliance to bureaucratic demands and norms of productivity and performance in the neoliberalised workplace are constitutive to the construct of the good employee as reflected by the appropriate use and recording of sick leave. Conversely, the respectful, authentic, compliant and productive worker is constitutive of its opposite – the difficult employee. The construct of the difficult employee positions conformity and self-management of sick leave as strong moral imperatives. Managers were generally supportive of workers’ efforts to self-manage sick leave with consideration for university commitments and were flexible around work hours, but this would in turn position them as deviant to institutional pathways of managing sick leave, with tensions between humanistic and authoritarian management.

Work Surveillance

Data subjects, digital surveillance, AI and the future of work by Phoebe V. Moore for the Panel for the Future of Science and Technology (STOA) and the Secretariat of the European Parliament is characterised as providing 

 an in-depth overview of the social, political and economic urgency in identifying what we call the ‘new surveillance workplace’. The report assesses the range of technologies that are being introduced to monitor, track and, ultimately, watch workers, and looks at the immense changes they imbue in several arenas. How are institutions responding to the widespread uptake of new tracking technologies in workplaces, from the office, to the contact centre, to the factory? What are the parameters to protect the privacy and other rights of workers, given the unprecedented and ever-pervasive functions of monitoring technologies? 

The report evidences how and where new technologies are being implemented; looks at the impact that surveillance workspaces are having on the employment relationship and on workers themselves at the psychosocial level; and outlines the social, legal and institutional frameworks within which this is occurring, across the EU and beyond, ultimately arguing that more worker representation is necessary to protect the data rights of workers. 

 Moore comments 

 Workplace surveillance is an age-old practice, but it has become easier and more common, as new technologies enable more varied, pervasive and widespread monitoring practices, and have increased employers’ ability to monitor what seems like every aspect of workers’ lives. New technological innovations have increased both the number of monitoring devices available to employers as well as the efficiency of these instruments to extract, process and store personal information. Digital transformation, work design experimentation and new technologies are, indeed, overwhelming methods with intensified potential to process personal data in the workplace. While much of the activity appears as an exciting and brave new world of possibility, workers’ personal experiences of being tracked and monitored must be taken into account. Now, issues are emerging having to do with ownership of data, power dynamics of work-related surveillance, usage of data, human resource practices and workplace pressures in ways that cut across all socio-economic classes. 

The first chapter of the present report ‘Surveillance and monitoring: The future of work in the digital era’, commissioned by the European Parliament’s Panel for the Future of Science and Technology (STOA), deals with surveillance studies, which originates in legal studies and criminology but is increasingly important in sociology of work and digitalisation research. The first chapter outlines some of the technologies applied in workplaces. The second chapter looks at the employment relationship, involving how workers and managers, and surrounding pressures transform when a third actor (the machine and/or computer), is introduced. This chapter also covers the ways that inter-collegial relations are impacted, as well as issues around work/life integration. 

The third chapter looks at data protection and privacy regulatory frameworks and other instruments as they have developed over time, leading up to today’s General Data Protection Regulation (GDPR). Various historical moments have impacted how data and privacy protection has evolved. Concepts surrounding this legal historical trajectory have emerged, with some ambivalences at points around which philosophical and ethical foundations are at stake. Some of the tensions in legal concepts driving the debates in privacy and data protection for workers, and paradoxical circumstances within which they are seated, are then dealt with in chapter four, where the possibility for deriving inference from data can lead to discrimination and reputational damage; where the concept of worker ‘consent’ to data collection; and the implications for data collection from wellness and wellbeing initiatives in the workplace are increasingly under the microscope. 

The fifth chapter outlines a series of country case studies, where applied labour and data protection and privacy policy are revealed. Many countries are reviewing data and privacy and labour laws because of new requirements emerging with the GDPR, which has also been extensively reviewed in the present report. Some legal cases have emerged whereby employers have been judged to breach data protection and privacy rules, such as Bărbulescu vs Romania. The sixth chapter, called ‘Worker cameos’, provides a series of worker narratives based on field interviews about their experiences of monitoring and tracking. In particular, content moderators and what the author calls ‘AI trainers’ are the highest surveilled and under the most psychosocial strain. Taking all of these findings into account, the seventh chapter provides a series of the author’s suggestions for first principles and policy options, where worker representation and co-determination through social partnerships with unions, and more commitments to collective governance, are put forward.

Moore argues 

Workplace surveillance over time has occurred within a series of historical phases, where work design, labour markets, and industry trends have differed and business, social and labour processes have taken particular forms. Surveillance of workers can be both analogue and technological, and operates at a series of tangible and psychosocial levels. ... In the report on this nearly year-long project, we look at how insights in technological development have evolved within a sociological and business operations framework, and identify how technologies are being implemented to manage worker performance, productivity, wellness and other activities, in order to analyse and predict the social impact and future of work, within regulatory parameters. Workplace surveillance in the European Union is predominantly outlined, but as early, government-commissioned North American research into workplace surveillance was also very perceptive in foresight, some historical discussion of the United States’ early activity as well as some insights from Norway and Nigeria, are included. 

Workplace surveillance is not separate from the larger structures and systems of labour relations, management styles, workplace design, legal and ethical social trends and today, are explicitly part of the accelerating trends in digitalised surveillance in many spheres of everyday life. Therefore, we address all of these categories of analysis, alongside identifying where and how digitalised surveillance has and is occurring in workplaces or perhaps better said, workspaces, called as such because the concept of ‘place’ has to be interrogated and critiqued, precisely because work is carried out in an increasingly virtual spaces globally, and with the onset of Covid 19 working conditions, increasingly, in homes. 

In 2017, a Motion for a European Parliament Resolution with recommendations to the Commission on Civil Law Rules on Robotics clearly stated that:

...assessments of economic shifts and the impact on employment as a result of robotics and machine learning need to be assessed; whereas, despite the undeniable advantages afforded by robotics, its implementation may entail a transformation of the labour market and a need to reflect on the future of education, employment, and social policies accordingly. (European Parliament 2017) 

This Recommendation predicted that the use of machine learning and robotics will not ‘automatically lead to job replacement’, but indicates that lower skilled jobs are going to be more vulnerable to automation. Furthermore, the Recommendation cautions the likelihood of labour market transformations and changes to many spheres of life, including as above, ‘education, employment and social policies’ (ibid.). In this light, the current report builds on some of these earlier recommendations to the European Parliament, because it is now more important than ever to address the lagging discussions on ethics, social responsibility, social justice and importantly, the role of unions and worker representative groups in the continuous development and integration of technologies and digitalization into workplaces. The report is written with a human rights focus, seeing data privacy and protection as a fundamental human right. 

Automation, robotics and artificial intelligence (AI) are part and parcel to the discussion of monitoring and surveillance of work,where a bindingfeatureforhow these processes emerge is the collection, storage, processing and usage of large data sets that are collected in more and more spheres of people’s everyday lives and in particular, workplaces. A report prepared for the United Kingdom’s Information Commissioner’s Office (ICO) declared that ‘we live in a surveillance society. It is pointless to talk about surveillance in the future tense... everyday life is suffused with surveillance encounters, not merely from dawn to dusk but 24/7’ (Ball and Wood 2006). More than one decade later, this statement could not be more relevant. From cameras at self-operated grocery store check-outs in New York, to facial recognition sensors at a local gym in London, to recorded calls with a call centre employee of banks who themselves may be based in India or Bangladesh, surveillance is an activity that is no longer only seemingly conducted by law officers on the streets watching out for robbers wearing balaclavas. People are watched in almost every corner of society, and sometimes people are even asked to watch one another, in what Julie E. Cohen calls a participatory surveillance (Cohen 2015). Gary T. Marx earlier referred to forms of participatory surveillance as a kind of ‘new surveillance’ in 1988, just as computers were becoming integrated into everyday life and seemingly integrating a new type of soft surveillance (Marx 1988). In 1982, Craig Brod had already warned of the dangers of over-use of computers at work and talked about the hazards of technostress resulting from the uptake of new technologies in everyday lives (Brod 1982). 

Cohen, an established figure in the research arena of surveillance, looked at the issues surrounding privacy and systems of surveillance. Cohen argues that privacy, as a concept informing practices, has a bad reputation, whereit has been touted as an old-fashioned concept and a delayto progress. Cohen counters these systemic assumptions and says that privacy should be a form of protection for the liberal self (2013: 1905) and important for the democratic process. Indeed, trading privacy for supposed progress reduces the scope for self-making and informed, reflective citizenship and a range of other values that are foundational to consumer society. 

So, effective privacy regulation must render both public and private systems of surveillance meaningfully transparent and accountable, where privacy is defined in the dynamic sense: ‘an interest in breathing room to engage in socially situated processes of boundary management’ (Cohen 2012: 149, cited in Cohen 213: 1926-1927). Privacy incursions harm individuals, but not only individuals. Freedom from surveillance, Cohen argues, whether public or private, is foundational to the practice of informed and reflective citizenship. These ideas are important when looking at workers and their right to privacy. A reasonable expectation of privacy is likely when the actions of the employer suggest that privacy is a condition of work. Internationally there are variations in law and culture in terms of privacy, especially differences between the European Union and the USA. In Europe, privacy has tended to be seen as somewhat more fundamental, something that should not be forfeited, whilst in the US privacy can be viewed as a commodity (Smith and Tabak 2009). 

There was a lot of discussion about business culture after Scientific Management, during the Human Relations and Systems Rationalism periods. Alder (2001) reviewed a range of organisational culture types, asking which ones are more/less amenable for electronic performance monitoring (EPM) integration. Right at the end of the latter period, Deal and Kennedy outlined four cultural types in 1982, which they argue are oriented around risk-taking and frequency of feedback within the organisation: ‘1) tough-guy macho, 2) work hard/play hard, 3) bet your company, and 4) process’ (1982, cited in Alder 2001). Petrock, Alder notes, also outlines a typology of four organisational cultures: 1) clan culture 2) adhocracy, 3) hierarchy, and 4) market cultures (1990), but these types are limiting because there are no associated ways to measure or identify them, offered. Alder believes these delineations are incomplete and not fit for purpose. Wallach, however, came up with the best typology, Alder states, noting the signifiers within three types: ‘bureaucratic, innovative and supportive’ (Wallach 1983, cited in Ibid.). A bureaucratic culture is identified with hierarchy, regulation and procedure and is the organisational culture type that is most responsive and accepting of technological tracking. Alder (2001) argues that workers will respond differently to EPM in different organisational cultures. Therefore, Alder indicates that a management body that wants to implement EPM must think about the culture of their organisation to assess to what extent resistance to it will emerge, and how to accommodate this. These days, however, the culture-based arguments are less and less relevant, as metrics and data appear to hold the promise to make irrelevant specificities in qualitative differences and as data rights become increasingly mainstreamed across the consumer and worker spheres. 

This report, overall, aims to highlight what kinds of technologies are being integrated to monitor, track and therefore, surveil workers; to identify how technologies are being implemented; to understand the impact that having new technologies in workplaces impacts the employment relationship; to throw light on the social, organisational, legal and institutional frameworks within which this is occurring; and reveal the institutional, legal and union responses. Finally, the goal of this report is to provide a set of first principles and policy options to provide EU member and associated states with guidance on protection the privacy and rights of worker data subjects. 

Leading up to the General Data Protection Regulation (GDPR), the EU’s Data Protection Working Party (Art. 29 WP) stressed that ‘workers do not abandon their right to privacy and data protection every morning at the doors of the workplace’ (2002: 4). Some degree of gathering and processing of personal data is a normal and in fact, a vital part of almost any employment relationship (Ball 2010). Some workers’ personal data is necessary to complete contracts i.e. to pay workers and record absences, and much of it is both reasonable and justifiable for use by management. However, that is not to say that any and all forms of surveillance and data processing should be so considered. 

Indeed, employers’ surveillance practices must often be reviewed in light of concerns for the privacy or simply for the human dignity of the worker (Jeffrey 2002; Levin 2009), and this report sets out to do just this. The present author has already situated this trend within the contemporary pressures of global political economy pressures (Moore 2018c) and looked at the psychosocial violence and safety and health risks that workers face with the introduction of digitalised tracking and monitoring (Moore 2019, 2018b). Welfare state retrenchment and austerity policies alongside these technologicalinterventionshavecoalescedintothe‘politicaleconomyofanxiety’(Moore2018a:43) for workers, where self-quantification and wellness discourses and frames thrive, but structural economic change is not occurring fast enough with relevant protections and social partnerships with unions and other worker representative groups. Now, we set out the aims and intentions for the project which form each chapter. 

The aim of the first chapter of the report is to review the concept of surveillance, where workplace electronic performance monitoring and privacy questions are increasingly important. The Taylorist employment model of mental vs manual work in a set hierarchy is increasingly a thing of the past, and while tools for measure were used in Taylor’s workshops, the kinds of technology now available on the market have fed into significant differences to a new world of work. Parallel to this change, the pursuits for surveillance have entered more intimate and everyday spaces than before. The known categories of the ‘watched’ and the ‘watcher’ are transformed. ’New surveillance workplaces’ or what we also refer to as ‘workspaces’, indeed, feature these new characteristics. The first chapter therefore looks at a range of new technologies which are contributing to the recent trends in an uptake of electronic monitoring and tracking at work, backed with existing empirical evidence and primary and secondary literature. 

In the second chapter, the report’s aim is to look at changes to a once presumed standard employment relationship, where managers and corporate and organisational hierarchies were explicit and clearly known. Now, management and operations processes are being digitalised, and workplaces are moving in to a myriad of domains. As a result of the changes to a more standard type of employment relationship and work environment, uncertainty or other psychosocial discomfort can emerge, where workers may feel their managers no longer trust them; or workers experience the issue of function creep, where data is used for other purposes than it was first collected for. Or competition between workers is intensified when performance data is viewable such as on the walls in call centre workplaces or on shared dashboards in gamified wellness programmes. The second chapter outlines the observable and documented as well as probable changes to the employment relationship which new technologies imbue. The third chapter turns to the policy and regulatory frameworks and instruments surrounding privacy and data protection and technological tracking, starting with the Data Protection Directive. 

The most important points in data protection and worker issue based policy are covered in the leadup to the GDPR. Interestingly, the International Labour Office’s Code of Practice around workers’ data, published as early as the 1990s, made similar interventions and recommendations that are now enforceable in the GDPR today. This chapter outlines this process and picks up on some of the most important and insightful developments to provide a foundation for the first principles and policy options outlined in later chapters of the report. The aim of the fourth chapter is to identify some of the tensions in legal principles about which the present author has been concerned, where e.g. inviolability does not seem to cohere with the concept of power of command; or where inferences from data and the link to workers’ reputations must be problematised. This chapter also looks at the concept of ‘consent’, which tends to be de-prioritised in discussions of the employment relationship (where consent is normally discussed in relation to a consumer, in the context of the GDPR) due to its already existing unequal nature. We argue that there are possibilities to rethink the definition of consent, nonetheless, and to perhaps look at a way to update the unidirectional conceptualization of this type of relationship. 

The fifth chapter then provides a series of country case studies provided in part by a series of legal scholars from across the EU, and Norway and Nigeria, where contributors have outlined information about which technologies are characteristic in specific countries; identified which legal mechanisms are being used including aspects of labour law, to ultimately protect workers’ privacy and data; looked at the ways local cases are working to integrate the GDPR as per Art. 88; and begins to put the focus on the role of worker representatives who, we ultimately recommend, should be considered meaningful social partners in dialogue with employers and with co-determination rights (see policy options). 

In the sixth chapter, we present a series of ‘Worker Cameos’ which are based on semi-structured interviews carried out with a series of workers to identify where EPM and tracking are occurring and to investigate and identify workers’ experience of this. Workers in many sectors and spheres, from dentists, to bankers, to content moderators, are being tracked. All workers interviewed feel that their work has intensified, expectations are higher, performance management is increasingly granular, and stress and anxiety are at an all-time high, as tracking and monitoring technologies become increasingly good at surveillance. 

The report concludes with a set of first principles and policy options for European Parliament policymakers, prioritising the role of trade unions and other worker representative groups. These Principles and Options are designed to mitigate against the worst impacts of digitalised tracking, monitoring and surveillance in the world of work.