The ANU College of Law Research Seminar Series forms an important part of the College's Research Strategy.
The series aims to showcase the diverse legal research being undertaken by scholars at the ANU College of Law. It provides a weekly opportunity for academic staff, College visitors and HDR candidates to engage in conversations with high-impact researchers and enrich our research community.
Where possible, seminars in this series will be scheduled at lunchtime each Wednesday during teaching periods. Light lunch is provided.
The College welcomes members of the ANU Community, external stakeholders and the general public to attend any of the sessions listed below.
Freedom of Expression, Liberalism and Harmful Expression
Speaker: Jelena Gligorijevic
Freedom of expression has long been the subject of philosophical inquiry. Various theories have been furthered to explain and justify its protection, and, on top of this unsettled theoretical terrain, political debate is ongoing about how harmful expression should be addressed, including in the law. In this context we should resist shifting focus from the freedom of expression to the harm of expression, and we should recall the liberal morality of freedom of expression in order to clarify how the liberal state may address harmful expression. I will argue that freedom of expression is an absolute moral right, obligating the state not to interfere with expression on the basis of its appeal to independent reason. It is a precondition for liberalism, because it is necessarily entailed in the Kantian imperative of minimal inherent dignity and autonomy. This deontological morality of freedom of expression has been neglected in consequentialist constructions of freedom of expression, which eschew the liberal presumption of capacity for independent reason, and focus upon harmful effects of expression. I propose an Independent Reason Rationale for addressing harmful expression, to reorientate the state to its deontological obligations regarding freedom of expression. Limiting harmful expression inconsistently with that rationale breaches the moral right to freedom of expression. The state might be forced to breach that right if it faces a conflict between it and another absolute moral right, like the right to life and security, but that breach remains a departure from liberalism.
Jelena holds an LLB(First Class) and BA(German, and Political Science) from the University of Canterbury, New Zealand, and an LLM(First Class) from the University of Cambridge. She was awarded the Hollond-Whittaker Studentship in Law by Trinity College, Cambridge, to pursue her doctoral studies there, commencing October 2016. She submitted her thesis in July 2019, before joining the ANU as a Lecturer in Law.
Jelena’s doctoral thesis, “A more principled approach to the conflict between privacy and freedom of expression in the law of misuse of private information”, examines the resolution of cases in misuse of private information, with a view to making judicial reasoning more transparent, principled and consistent. She applies analytic philosophy and the concept of rights-conflicts, arguing courts must approach such cases with a method of reasoning that is clearly anchored in the normative underpinnings of the conflicting rights. She explores different theories of rights-conflict resolution and the philosophical underpinnings of privacy and freedom of expression, before critiquing current doctrine, finding it to be dominated by utilitarian considerations of the ‘public interest’, and ultimately disengaged from the two rights. She argues for a re-orientation of the common law to the very rights which it purports to protect, and proposes a new “tailored proportionality-optimality method”, for adjudicating informational privacy.
End of Year Internal Grants Showcase
The End of Year Internal Grants Showcase will provide an opportunity for this year's internal grants recipients to share their funded research projects with the wider College community.
Time: 12:30pm to 1.30pm Wednesday 4 December 2019 (following the meeting of the Academic Board)
Venue: Phillipa Weeks Library, level 4 of Building 7.
A light lunch and refreshments will be provided.
Constant revelations of institutionalised corporate malpractice, and apparent corporate indifference to adverse social or environmental impacts justifiably excite public concern, criticism and anger. The reactions are typically aimed at the directors and managers of those companies that have caused the losses and damage. This was captured nicely in the title of a 1994 report from the Toronto Stock Exchange which asked ‘Where Were the Directors?’. In Australia and around the world, corporate law statutes and judicial decisions have responded by imposed stricter standards of behaviour on company directors and managers.
The role of the so-called gatekeepers—the auditors and professional corporate advisors – has also been questioned, along with calls for the regulators to take more robust action. So we see that through many years of corporate scandals, company directors and managers, auditors, legal advisers, financial intermediaries and corporate regulators have all been subjected to critical attention in the drive towards compliance with corporate governance requirements and proper standards of corporate behaviour.
But notice who is missing from this story: where are the shareholders? What have we heard from shareholders when companies, their directors fixated on short-term profit maximisation, have sailed close to financial ruin before finally tipping over the edge, or when corporate managers, acting on professional advice, have used whatever legal mechanisms are available to insulate the business from liability to victims of corporate operations? Have shareholders raised their voices to express concern or opposition? If not, why shouldn’t the community expect this of them? How is it that, for the most part, shareholders have escaped the broad critical public examination that other corporate players have received? In this seminar I will outline a work-in-progress that examines these questions.
Speaker: Professor Stephen Bottomley
The Reform of the French Civil Code: the Struggle to Reshape Contract Law Coherently
After 200 years of remaining almost untouched, the section of the Code on contract law was revised in October 2016. The reforms were meant to mark the beginning of a new era. Their stated ambition was to shape a modern contract law which would be more in tune with the challenges of the twenty-first century and an increasingly globalised world. Important goals of the reforms included making the law more certain and predictable, more attractive on the international business scene, more competitive with the laws of major common law jurisdictions, and generally more coherent. However, the draftsmen struggled to balance many of the competing values at play, in particular promoting substantive fairness while at the same time enhancing legal certainty and improving commercial attractiveness. My presentation focuses on their struggle to reshape contract law in a coherent way and in reconciling these different values.
Speaker: Dr Solene Rowan
Teaching Human Rights in Myanmar Universities: Intermediary Issues between International Agendas and Local Context
Human rights is a compulsory subject in Myanmar universities for student in Law and International Relations/Political Science. The introduction of human rights as a subject has been supported by capacity-building efforts from a range of international actors. Such efforts, however, are faced with differences between global agendas and contextual realities. Intermediaries exist to bridge the two sides, but they must contend with tensions between international aspirations and local exceptionalism. The presentation offers a model to clarify the issues, and uses the model to identify strategies that help strengthen the intermediary position in support of human rights in Myanmar. The presentation finishes with implications for similar human rights education efforts elsewhere.
Speaker: Dr Jonathan Liljeblad
The Legal limits to the monetisation of online emotions
Emotions play a key role in decision making. Technological advancements are now rendering emotions detectable in real-time. Building on the granular insights provided by big data, such technological developments allow commercial entities to move beyond the targeting of behaviour in advertisements to the personalisation of services, interfaces and other consumer-facing interactions, based on personal preferences, biases and emotion insights gleaned from the tracking of online activity and profiling. Although emotion measurement is far from a new phenomenon, technological advancements are increasing the capacity to monetise emotions. Despite the fact there are many applications of such technologies which appear morally above reproach (i.e. at least in terms of their goals (e.g. healthcare or road safety) as opposed to the risks associated with their implementation, deployment and their potential effects), their use for advertising and marketing purposes raises clear concerns in terms of the rationality-based paradigm inherent to consumer protections (e.g. in the form of data protection and privacy and consumer protection law) and thus the autonomous decision-making capacity of individuals. Indeed, one must question the effects of combining such means of personalisation with consumer-facing interactions that are driven by emotion insights and how their wide scale adoption would be affected by (and indeed affect) the law.
As such, this thesis examines the emergence of such technologies and their use for commercial advertising and marketing purposes (construed broadly). More specifically, the purpose is to explore the challenges they present for EU data protection, consumer protection and advertising specific law. In so doing, the thesis examines the focus and limitations of current advertising and marketing protections (Chapter 2) and assesses the inherent rights and interests at stake before then analysing the rights to privacy and data protection as potential avenues for protection (Chapter 3). Building on this, the focus turns to a detailed assessment of the definition of personal data and its limitations (Chapter 4), before moving to a more concrete analysis of the protective confines of both the ex ante and ex post protections provided in EU law (Chapter 5). The final part of the thesis explores the future assessment of how and where the lines should be drawn in relation to the ongoing legitimacy of emotion monetisation given the increasing prevalence of emotional artificial intelligence (AI). The transversal nature of the analysis, across the consumer protection and privacy and data protection frameworks in particular, reveal a number of challenges associated with the increasing alignment of these respective policy agendas. These illustrate and inform the ongoing debates at the policy, enforcement and academic levels as to how the problems associated with the digital economy more broadly should be regulated in practice. Indeed, it is clear that the emergence of emotional AI fits squarely into the moves towards ‘ethical AI’ at the policy level, the criticism of such developments, and more specifically, the ongoing debates regarding to challenges and restrictions of legal protections.
With this in mind, the research reflects on the broader issues dominating the policy discourse as well as the nuanced analysis of the compatibility of existing frameworks within the applicable legislative patchwork and how they can work together. The thesis concludes that there needs to be a discussion around what specific applications of emotional AI in the context of the monetisation of online emotions should simply be prohibited. Indeed, at a fundamental level such developments arguably further undermine the rationality paradigm as a ‘functional fiction’ in the law. Although deciding precisely what falls within the realms of manipulation is something requiring further interdisciplinary analysis, the thesis proposes a manner in which such commercial purposes could be banned ex ante in light of the complex overlaps between the respective data protection and privacy and consumer protection frameworks. Such questions need to be brought into the mainstream discussions on the future of legislative protections designed for a world of emotional AI and technologically mediated choices.
Speaker: Damian Clifford
Machine Driven Creativity and the Survival of Copyright
Artificial Intelligence (AI) represents a very significant challenge to copyright law’s ability to adapt and change to new technologies. Whilst in the past copyright has been able to accommodate new developments within its technological environment, none of those changes have ever challenged the idea of human authorship. The technological capabilities of AI are now developing to a point where machine-driven creativity could ultimately present a very significant threat to the viability of copyright law. Technologies such as Google’s Deep Dream and The Next Rembrandt have highlighted the possibilities around AI and creativity. These recent developments have built past AI innovations such as the e-David project. The fundamental problem is simple, though the issues raised by the suite of solutions on offer are exceedingly complex. AI technologies have the capacity to create complex works of art and literature. These are works within which copyright would easily exist if they were produced by a human author. These are also works of value. However, the absence of a human author places them beyond the realm of copyright law in most jurisdictions. As the technology develops it will become harder to deny copyright protection to AI works. However, allowing AI into the arena of copyright law is likely to lead to a radical reconfiguration of the law of copyright and the industries that depend upon it. This paper explores two pressing topics within the field of artificial intelligence and copyright law. First, it examines whether the rules of authorship and ownership within copyright law can expand to include ownership over AI-created works. This is a threshold issue that would permit AI to gain entry within the copyright regime. I contend that this is a necessary step due to an emergent jurisdictional gap between those states who provide copyright protection for AI works and those that do not. Second, it deals with the issue of allocation within a property system. There are a number of complications around attributing ownership in AI works to the various actors who may have claims towards ownership. In this paper, I establish a framework for allocating rights in AI works.
Speaker: Dilan Thampapillai
Reshaping the teaching-research nexus: A lecturer blogs his research to his students before becoming lawyers
The debate about the teaching-research nexus in higher education has a variety of positions on the extent that teaching and research can complement or even detract from each other. Barry Yau, who convenes Commercial Practice in the online GDLP program in the ANU School of Legal Practice, will present his experience in reshaping the teaching-research nexus in the learning environment. This is in the context of his ongoing qualitative research project into the attitudes of law students and early career commercial lawyers and its relationship to perceptions of legal ethics, work-life balance and wellbeing. In particular, Barry has for the past three years blogged his research findings to his Commercial Practice students. This assists to forge connections with students, some of whom voice anxiety as they suffer low levels of wellbeing whilst making sense of career success in a competitive legal job market. The voices of the research participants in the blog resonate with some students as they consider their own values and priorities in aspiring to be legal professionals.
Speaker: Barry Yau
Strengthening Accountability and Transparency: Lessons from the Parliamentary Scrutiny of Delegated Legislation in Canada and the UK
In recent years, delegated legislation has taken on a new importance. By volume, it makes up the majority of new laws that are made each year. Broad delegations of lawmaking authority are standard in bills introduced in parliament. The concern is that the delegated lawmaking process is not sufficiently transparent or accountable. Over the past two years, Associate Professor Lorne Neudorf has investigated the various formal and informal ways in which parliaments scrutinise delegated legislation. He will present his research on parliamentary scrutiny in Canada and the UK and suggest ways in which the scrutiny process can be improved and strengthened.
Speaker: Dr Lorne Neudorf
Lorne Neudorf is the Deputy Dean of Law and an Associate Professor in Law at Adelaide Law School, University of Adelaide. He is a member of the Law Society of Upper Canada (Barrister & Solicitor) and an Adjunct Professor at Robson Hall, Faculty of Law, University of Manitoba. Lorne holds a Doctor of Philosophy from the University of Cambridge, a Juris Doctor from the University of Victoria and a Masters of Law from McGill University.
Lorne's research takes a comparative perspective and focuses on public law, including judicial review, legislation, delegation, the lawmaking process, statutory interpretation and legal institutions. Lorne has published or edited a number of scholarly collections, journal articles, case comments, book chapters, book reviews, and newspaper op-eds. In 2017, he published a monograph with Springer entitled The Dynamics of Judicial Independence: A Comparative Study of Courts in Malaysia and Pakistan. In 2018, Lorne was commissioned by Hart as General Editor of a new global book series examining the rule of law in context.
Learning to Listen to Indigenous Experience in Sentencing: Lessons from Canada to inform an ‘Indigenous Experience Report’ trial in the Australian Capital Territory
Indigenous Australians are proportionally ‘the most incarcerated people on the planet’ (Uluru Statement from the Heart, 2017). On the 28th of March 2018 the Australian Law Reform Commission Report 133, Pathways to Justice – Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Peoples, was tabled in the Commonwealth Parliament. We are yet to see a response. The report contains comprehensive recommendations for reform across the criminal justice system.
Recommendations 6-1 and 6-2 call for legislative reform to require sentencing courts to take the unique systemic and background factors affecting Indigenous peoples into account in sentencing Indigenous offenders, as well as the establishment of schemes for preparing and presenting ‘Indigenous Experience Reports’ to superior courts to facilitate this. These reports would connect the story of the person to the story of their people, shining a light on pathways to offending, and critically, on culturally appropriate and effective pathways to desistance.
The reform proposals echo legislative and procedural developments in Canada, which recognise that the criminal justice system has failed to listen to Indigenous experience, thereby denying equality before the law and contributing to gross disparities in incarceration rates.
The Australian Capital Territory has committed itself to a trial of Indigenous Experience Reports in sentencing, to be called Ngattai Reports (which means ‘listen’ in Ngunnawal). In this presentation, Dr Anthony Hopkins will review developments that have led us to the point of this trial. Drawing upon his research in Australia and Canada, he will consider the potential for these reports to enable sentencing courts to listen to and engage with the lived experience of Indigenous offenders.
Speaker: Dr. Anthony Hopkins
Lex Automagical: will blockchain and AI deliver justice like clockwork?”
In this exciting ANU College of Law Research Seminar, Scott Chamberlain will outline his “Lex Automagica” Project which recently attracted significant funding from the US blockchain unicorn, Ripple Labs. The premise of “Lex Automagica” is that the “tech-stack” of blockchain + digital assets + smart contracts + AI + augmented reality can automate away swathes of regulation and law, delivering scalable justice by collapsing thousands of bureaucrats, police, lawyers and accountants into code and market dynamics.