Book Review: Ulrike Schultz, Gisela Shaw, Margaret Thornton & Rosemary Auchmuty (eds). 2021. Gender and Careers in the Legal Academy. (1st ed), Oxford, UK; New York, NY: Hart Publishing, ISBN: 9781509923113 2021, 569 pp.
Bias can result in partiality in historical accounts and confirmation bias results in statements and characterisations being accepted as factual without reliance on critical tests. This paper provides an example of how a qualitative research technique called ‘nominal group technique’ (NGT) was used in a legal history project to control bias. The observations and conclusions may have a bearing on the part that NGT could play in other areas of legal research and historical research.
Artificial intelligence is an alluring technology which companies and governments hope to benefit from. In many circumstances a condition of its use is that humans can understand an explanation of why the action of an AI system took place. This has encouraged the development of a field of “explainable artificial intelligence”, or XAI. Much of the work in this field has been encouraged by the US Defense Advanced Research Projects Agency (DARPA), through its XAI program initiated in 2016. This paper argues that an underacknowledged challenge of XAI is that unlike most traditional technology, many AI systems contain inherent uncertainty. These systems are widely described as “black boxes”, and can be described only through their behavior, a technique described in the literature as post-hoc, rather than through an understanding of their functioning. Explaining such systems is akin to explaining the functioning of the natural world, rather than explaining the functioning of a known technology. While extensive work has been undertaken to explain the behavior of black box AI systems, there are limitations to the certainty that a post-hoc method can bring. Recognizing this is an important part of understanding the limitations of post-hoc reasoning in the use of advanced AI systems. Far simpler technologies have been seen to cause significant social damage: the UK Post Office Horizon system, and the Australian federal government Robodebt program. Coming to advanced AI system examples, two recent prestigious reports on AI systems and law display an unreasoned enthusiasm for AI explainability. AI researchers should be acknowledging that many advanced AI systems remain black boxes, that post-hoc explanations of these are inferences describing how the AI system may function, not how it does function, and the application of these technologies should be managed accordingly. Otherwise, the search for explanations may simply become a reason to believe.
Book Review: Simon Chesterman.. We, the Robots? Regulating Artificial Intelligence and the Limits of the Law. UK: Cambridge University Press, 2021, pp. 289 ISBN 978-1-316-51768-0 Hardback, https://doi.org/10.1017/9781009047081
Book Review: Philip Ayers (ed) The Washington Diaries of Owen Dixon 1942-1944, Alexandria, NSW: Federation Press, 2020 - 392pp. incl index 19pp. ISBN: 9781760022549-
Personal privacy versus public safety is a rights trade-off that has been brought into sharp focus by the COVID-19 pandemic, with flow-on implications for the success of contract tracing regimes implemented across Australia. These contact tracing regimes depend upon the supply of accurate information by individuals, which in turn depends upon the trust that is placed in health authorities and other government officials to handle personal information with care. A range of different laws govern the collection and use of personal information by health authorities at the federal level and in each Australian state or territory. Understanding these rules might help us to work out ways to ensure that everyone in our community feels like they can tell the truth when it matters most. Using a case study from South Australia, this article reviews existing legislative, regulatory and policy frameworks that currently apply to the collection and use of personal information in health care and highlights the tension between creating incentives to share personal information and policing compliance with COVID-19 laws and ensuring robust legal protection for sensitive personal information. Relevant lessons from the South Australian experience are then extrapolated for consideration by other Australian jurisdictions, with a view to identifying what safeguards and protections could be included in current legal frameworks governing the use, sharing and disclosure of personal information in health care settings to help resolve the current tension between protecting individual privacy and promoting public health.
The United Nations Convention on Rights of Persons with Disabilities (UNCRPD) has significantly changed the way our society views models of decision-making for adults with cognitive impairment. The formerly-accepted substitute decision-making models – where a person can legally make decisions for an individual, often guided by the ‘best interests’ principle – are considered less desirable than supported decision-making which prioritises an individual’s ‘will, preferences and rights’. However, disciplinary differences in understandings about what these concepts entail and how they should look in policy, legal and practice frameworks persist. For many, supported decision-making is experienced through informal support for decision-making through close family, and in the absence of a legal appointment. What this support looks like and whether it can help achieve the aim of greater participation by people with intellectual disability is still being empirically examined. In addition, the circumstances when that support moves into informal substitute decision-making is largely unexplored. It is also unclear whether the reasons for such a shift mirror the legal requirements for the appointment of a formal substitute decision-maker under Australian law. This paper uses a subset of qualitative data from interviews with parents who act as supporters to adults who have an intellectual disability. The overall aim of the study was to explore the impact of training in applying a practice framework (the La Trobe Support for Decision Making Practice Framework) about effective support for decision-making. We show that promising development is reported from the impact of capacity-building training for supporters, with evidence that the decision-making capabilities of adults with intellectual disabilities can be seen to shift over a period of time and training informal supporters can be effective in moving the dial as to when a supporter finds it necessary to step in and make a substitute decision. However, we also demonstrate that considerations of ‘risk’ and future opportunities for the supported adult are nuanced factors taken into account by supporters who shifted into a substitute decision-maker role and this is not well accounted for in our legal frameworks.
Most commentary and, indeed, most controversy concerning class actions in Australia has concerned shareholder class actions and how they are funded. This paper consciously changes the focus of its commentary away from such debates and towards examining human rights class actions in Australia. As Australia is the only advanced country without national constitutional or statutory protections of human rights, attempts to legally protect human rights have manifested themselves indirectly in various areas of the law that might not at first glance seem to have much to do with human rights. Class actions has been one of those legal areas. Given the paucity of existing commentary on Australian human rights class actions this paper begins with an examination of the types of cases that have been bought as human rights class actions and provides examples of them. Drawing on literature concerning the effectiveness of actions undertaken to protect human rights and on class actions protecting human rights overseas, it uses publicly available information to undertake a qualitative analysis concerning the effectiveness of such litigation. After coming to some tentative conclusions about such effectiveness, it examines whether US class actions law might be a source of ideas that could be adapted to address any such limitations of effectiveness in the same way that US class actions jurisprudence was originally drawn upon by the Australian Law Reform Commission to recommend that class actions provisions be enacted in Australia. Given the relative absence of legal norms protecting human rights in Australia as well as the relative weakness of social movements seeking greater legal protection for human rights in Australia, the search by human rights advocates for ways to access courts and obtain greater legal furtherance of human rights is a task of some urgency. This paper attempts to contribute to that search as well as to advance the analysis of Australian human rights class actions and their effectiveness more generally.
I argue that a general initial case for pay transparency can be made given the role played by transparency of information about prices in bringing markets closer to the ideal of competition or equilibrium price. This initial case might then be limited or enhanced depending on more specific considerations about the status of information about pay in particular. Privacy considerations seem to count against pay transparency, but I argue here that the context of pay information lacks some features present in other contexts in which appeals to privacy have force. Building on work by Estlund, Moriarty, Caulfield, and others, I argue that pay transparency may be favoured by considerations relating to personal autonomy in labour markets. Finally, I argue that pay transparency may contribute towards the realization of conditions of publicity, particularly relating to the value of citizens’ assurance about each other’s tax compliance.
“Rules as Code” is a label adopted by people in governments working on the idea of encoding (or just marking up) legislation while it is being drafted, so that the logic of the resulting legislation can be “read” (and checked) by a computer, to improve the manner in which legislation is produced and the way in which it is available digitally. The idea is currently attracting attention in the legal community, particularly on the question of whether it will lead to automation replacing human interpretation of the law. This note briefly describes Rules as Code, at least as conceived by a legislative drafter. It argues that this conception of Rules as Code does not have the over-reaching ambitions that it may sometimes appear to harbour, and in particular does not trespass into removing key interpretative functions.
What if data used to inform knowledge is incomplete or false, leading to misunderstandings about the social world? In Australia, what is known about ethnic diversity is based on an outdated definition and inadequate measure of multiculturalism. This article explores how gaps in data can lead to and further entrench disempowerment. Using a sociodemographic approach, this paper examines the ways in which data can create and maintain poor representation; via collection, analysis and infrastructure. This paper demonstrates that what is counted matters for equality, and lays out what is necessary to help promote ethnic diversity through data collection.
Technological advances in artificial intelligence (AI) are affecting the legal profession. Machine learning (ML) and natural language processing (NLP) enable new legal apps that, to some extent, can analyze contracts, answer legal questions, or predict the outcome of a case or issue. While it is hard to predict the extent to which these techniques will change law practice, two things are certain: legal professionals will need to understand the new text analysis techniques and how to use and evaluate them, and law faculties face the question of how to teach law students the required skills and knowledge to do so. At the University of Pittsburgh School of Law, the authors have co-designed a semester-long course entitled, Applied Legal Data Analytics and AI, and twice taught it to combined groups of law students and students from technical departments. The course provides a hands-on practical introduction to applying ML and NLP to extract information from legal text data, the ways text analytics have been applied to support the work of legal professionals, researchers, and administrators, and the techniques for evaluating how well they work. The article introduces the new text analytic techniques and briefly surveys law schools’ current efforts to incorporate instruction on computer programming and machine learning in legal education. Then it describes the 2020 version of the course, including the students, instructors, and course sessions in overview. We explain how we taught law students skills of programming and experimental design and engaged them in assignments that involve using Python programming environments to analyze legal data. The course culminated in joint projects engaging small teams of law and technical students in applying machine learning and data analytics to legal problems. The article explains how the instructors prepare the students for the final course projects, beginning early in the term with project ideas and databases of text, forming teams, working on the projects as a team and obtaining interim feedback, and finally completing the projects and reporting results. We draw some salient comparisons between the 2019 and 2020 versions of the course and report what worked well and what did not, the students’ reactions, and lessons learned for future offerings of the course.
That law is socially constructed is so ubiquitous a statement in law and the humanities as to render itself dangerously close to ‘common sense’. The subheading ‘Potential and Limits’ is the key to Giudice’s original argument in which he suggests that law is both socially constructed; yet retains a ‘natural’ core. When teaching critical theory, I encourage students to examine anything they understand as ‘common sense’ as a potential blind spot for bias and assumptions deeply ingrained in ideology. As such, the attempt to examine exactly such a potential blind spot is exactly the sort of problem legal philosophy should seek to address.
Regulatory triggers can provide a powerful motivator for transparency, including its implied expectations of openness and accountability. This includes section 151 of the Equal Opportunity Act 2010 (Vic), which enables the Victorian Equal Opportunity and Human Rights Commission to review a duty holder’s “programs and practices” to determine their compliance with the Act. This article argues that the exercise of the review function in section 151 supports transparency through the level of access to people and information it affords and the ability for the Commission to critically and openly assess the state of equality in a duty holder’s organisation. This level of access and openness encourages accountability and helps to persuade and motivate duty holders to take measurable steps towards achieving equality and compliance with the Equal Opportunity Act. Surprisingly little is known, however, about this regulatory tool and its facilitative approach to compliance. This article seeks to build awareness and understanding of the review function and critically analyses its potential to promote transparency and equality. It suggests that the review function is a tool deserving of greater consideration, particularly by duty holders, in efforts to achieve substantive equality.
Human vulnerability is at the core of refugee status determination and human rights provides its regulatory frame, so to speak of artificial intelligence within the refugee context may seem troubling at least, dystopian at worst. But the rapid development of artificial intelligence in government decision-making will unlikely be slowed by such ethical quandaries. The potential integration of automation, machine learning and algorithmic decision-making into global migration regulation and policy has far-reaching implications for refugee law. The consequences for efficiency, legality, accountability, transparency and human rights warrant a timely and critical conversation about the possible impact of existing and future technologies on refugee status determination. Predictive analytics, biometrics, automated credibility assessments and algorithmic decision-making are technologies that could have utility for refugee status determination processing, credibility assessments and decision-making. Each technology is considered through a lens of ‘risk and potential’, which is measured in terms of ‘fair, efficient and effective’ refugee status determination. The opportunities that artificial intelligence offers for efficiency and effectiveness in refugee status determination are compelling. Artificial intelligence allows for faster data processing and the ability to undertake high-volume, repetitive tasks. Increased consistency and up-to-date information, a capacity to plan for workloads and predict movements and the potential to ‘design out’ existing biases, promise to deliver positive outcomes for asylum seekers. But the risks of integrating artificial intelligence in a decision-making process that is defined by human vulnerability loom large. The lack of transparency in algorithms may result in a denial of procedural fairness, and algorithmic bias continues to be a vexing issue. If refugee and human rights are denied, international protection may be compromised. Technical and contextual issues may increase the potential for error, and unanswered questions remain around legality.
The literature of higher education widely notes the importance of reflection and reflective practice as a critical aspect of professional practice. This enables learners to act and think professionally by combining theory and practice. As such, many teaching and learning strategies and activities to enhance reflection have been incorporated into professional degrees. Notwithstanding the support for reflective practice, critical reflection remains a contested concept with a lack of consensus as to its definition and best practice. The frameworks chosen by higher institutions may be influenced by course context, ideology and expectations around the course/unit learning outcomes. This paper commences with a discussion of reflection and critical reflection. By examining different notions of reflection, the paper will discuss why the concept of critical reflection is important for practitioners in the 21st Century. It is advanced that critical reflection can encourage learners to better understand professional practice by linking discipline knowledge and theories to professional practice and wider insights. Whilst reflective practice is a desirable capability for law graduates, legal education in Australia largely fails to incorporate and assess critical reflective skills, as it is directed at producing a technically skilled and ideologically compliant legal workforce. The authors advance that adherence to a solely doctrinal approach to legal education is no longer justified in the 21st Century, which is characterised by profound change and uncertainty that impacts on the legal profession and society at large. Law schools have a positive role to play in the education of their students through instilling doctrinal knowledge, professional practice skills and critical thinking skills, which foster an understanding and analysis from multiple perspectives, to ensure that law graduates are able to holistically understand the reasons for changes within their profession and effectively adapt to change through informed choices. The final part of the paper outlines how critical reflection can be implemented in legal education.
The use of statistical data to prove racial discrimination by police in individual cases is relatively novel in Australia. Based on a survey of international strategies, this article argues that statistical and social science data can play three critical evidential roles in litigation. Firstly, it can form part of the social context evidence used to influence the inferences that can be drawn from other evidence led in a case. Secondly it can influence the cogency of the evidence required for claimants to meet the standard of proof, and thirdly, it can be used to shift the burden of proof. Using these evidential methods, evidence of institutional racism can be used to assist in making findings of discrimination in individual cases. This article speculates on the role that statistics could have played in the Haile-Michael race discrimination claim that settled in 2013, and in the 2019 inquest into the death of Tanya Day.
Book Review: Anita Mackay, Towards Human Rights Compliance in Australian Prisons, Canberra: Australian National University Press, 345pp + xxii, ISBN: 9781760464004.
The state, in particular through its ability to enact legislation, has the capacity to either perpetuate or confront forms of systemic and structural disadvantage and inequality. Increasingly, transparency is being seen as key to designing effective equality law, and the ambitious new Gender Equality Act 2020 (Vic) (The Act) is a leading example. The Act seeks to break down outdated stereotypes and systemic inequalities—particularly those that relate to gender. Central to the design of the Act is its commitment to transparency. The Act mandates a level of organisational transparency about the advancement of gender equality that has not previously been required in the public sector in Victoria, or in the rest of Australia. This transparency underpins the ambitious objectives of the Act and is integral to the obligations it puts in place to drive progress towards gender equality. A focus on transparency serves four main purposes in accelerating the pace of change towards a more gender-equal society and providing leadership in this arena. Firstly, it functions as a practical tool to encourage knowledge-sharing and innovation along the path to gender equality. Secondly, transparent reporting of defined entities’ progress towards gender equality acts as a form of pressure to make material progress, instead of participating in box-ticking exercises. Thirdly, the transparency within the Act is a marker of ethical leadership, by democratising knowledge in this space. Lastly, a commitment to transparency is a sign of good governance; it both allows the public to access and interrogate public sector progress towards gender equality and ensures that government plays a leadership role in pushing for positive social change. The Gender Equality Act 2020 (Vic) is thus an example of how laying bares our challenges related to organisational gender equality can help drive progress towards a more gender-equal future.
