Stream Leads: Janet Chan and Niamh Stephenson

Digital technology has brought about irreversible transformations in the way societies and organisations operate. One fundamental manifestation of this transformation is the digitalisation of information so that “data” has now become a valuable resource. With advances in computer technology that facilitate the collection, storage, processing, analysis and dissemination of data on a massive scale come the age of “Big Data” and the introduction of artificial intelligence (AI) for decision making. This research stream aims to investigate the consequences of these data-driven technological developments on the delivery of justice and identify ways of maximising positive and minimising negative consequences. For this research, “data technology” encompasses hardware, software and infrastructural developments that support the collection and use of all forms of digitalised information in different settings, while “justice” is broadly defined to include its substantive, procedural and distributive dimensions. Examples of technological developments that are relevant for this research stream include: use of data technology for committing crime or misconduct; for detecting, predicting, or preventing crime or recidivism; for automating legal decision making; for profiling suspects and anomalous behaviours; for disease prevention, and the development of health and welfare policies. Research under this stream may focus on (but is not restricted to) one or more of the following broad research questions:

• What are the potential risks or threats to justice underlying specific data technologies?

• Who would be most adversely affected by and who would benefit most from the use of these technologies?

• What existing or new methods can be effective in minimising negative consequences of these technologies?

Stream Leader: Ross Buckley

Technology creates incredible potential for the development of finance, including (i) disintermediation of traditional methods of delivery of financial services, (ii) lower barriers to entry, (iii) more efficient and affordable financial services, and (iv) delocalisation of financial products. Innovation in financial services is occurring at an increasing pace, and regulators are struggling to keep up.

Technological boom in finance creates both opportunities (eg financial inclusion in developing countries with large numbers of unbanked people and automation of routine processes, such as fraud detection and prevention) and challenges (eg absence of legal certainty as to how new developments fit within the existing regulatory framework, lack of understanding of the new technologies by consumers promoting uninformed decision-making, increased cybercrime risks, anonymity of transactions and resulting money laundering implications).

The FinTech Stream seeks to explore the impact of technological disruption on financial markets in Australia and across the globe, by analysing existing challenges, creating a discussion platform to exchange ideas among various stakeholders, and developing workable solutions. The research will examine the legal implications of a variety of technology-driven developments in finance, including (but not limited to):

  • Existing practices and regulation of Initial Coin Offerings (ICOs) – a financing model at the intersection of blockchain and crowdfunding;
  • Application of RegTech (ie use of technology for regulatory monitoring, reporting and compliance) in finance;
  • Evolution of decentralised virtual currencies and emergence of government or central bank backed cryptocurrencies;
  • Funds and financial technology;
  • Emergence of data-driven finance models;
  • Use of artificial intelligence and algorithmic decision-making models in finance.

Stream Leaders Katharine Kemp and Rob Nicholls

As data regarding transactions increasingly has value which is comparable to the transaction value, personal data has the potential to form the basis of market power. This is a particularly challenging issue where two-sided or multi-sided markets indicate the operation of a platform.

This creates the simple research question: “Can control of data create market power?”. If the answer to this question is “yes”, then this raises a number of other issues:

  • How should a competition regulator analyse data-driven market structures?
  • How are data flows, practices and advantages relevant to the assessment of market power?
  • When could data practices (including refusal to permit access to data and exploitative privacy terms) amount to a contravention of Australia's new misuse of market power law?
  • Could data exchange amount to a contravention of Australia's new concerted practices prohibition?
  • To what extent could data privacy terms be challenged under the unfair contract terms or unconscionable conduct legislation under the Australian Consumer Law?
  • How might obligations under the proposed Open Banking and broader Open Data regulations interact with these aspects of the competition and consumer legislation?

Stream Leader Bassina Farbenblum

This stream focuses on digital technology initiatives designed to prevent and remedy exploitation and improve recruitment and working conditions for migrant workers. These include, for example, platforms assisting workers to articulate and report exploitation within supply chains, rate and review recruiters and employers, access justice, or make secure recruitment or salary payments.

Stream Leader David Vaile

Data digitisation changes the potential for beneficial and harmful handling of information about people. This creates local and global challenges for the existing legal, regulatory, social and technological models designed to both protect individuals, communities and societies from new or amplified risks, and also support safe manipulation or exploitation of data derived from actions of potentially identifiable individuals (including ‘personal information’/‘PI’ in AU law).

Past conceptions about the ‘data protection’ interests at stake for individuals and organisations are challenged by rapidly diversifying and expanding technical capabilities, and by misunderstood or weakly enforced constraints on traditional functions of ‘collection, use, disclosure, retention and destruction’ of PI, esp. in commercial and social media realms. Newly viable applications such as mass psychographic profiling of online device users, or machine learning from data ‘lakes’ derived from the ‘digital exhaust’ of life online, raise questions about the adequacy of existing protections; and how to make the risks, trade-offs or potential protective responses comprehensible for data subjects, and for those developing, governing or regulating in this area. (Weak ‘consent’ or authorisation models often work against subjects.)

This stream seeks to investigate the nature and implications of developments in personal data informatics and analytics for the protection of individual, community, professional and public interests in data protection, privacy and confidentiality; how to make implications more comprehensible to individuals and organisations; and models to balance aspirations for awareness, autonomy and control of one’s data with demands of those seeking to exploit the new tools.

Stream Leader Bronwen Morgan

The emergence of sharing economy business models in recent years has generated much debate, including concern over their social effects. Many negative impacts appear to derive from sharing systems premised on venture capital investment driving rapid expansion toward monopolistic market domination. The systems and interfaces of digital platforms have substantially lowered the transaction costs of many kinds of economic interactions, but have often done so in under-regulated ways. Many current responses focus on regulating or constraining the sharing economy. By contrast, Platform Cooperativism draws on entrepreneurial energies to respond, building new economic and social opportunities based on models of shared ownership and ontrol and fostering new practices guided by design-derived methodologies. A cooperative platform economy aims to build and support a vision for a more participatory economy, where digital platforms enable place-based, collaborative and holistic economic development. 

A range of issues confront those at the forefront of platform cooperativism: What are emerging legal models for cooperatives use of digital platforms? How might digital platforms be designed to enable their use by cooperatives? What are the appropriate scales of operation for platform cooperatives? What difference do the siting of their communities make (eg their imbrication in urban settings)? In what ways might they intersect productively with urban policy agenda, governance practices and aspirations? Yet the sector does not yet have a shared understanding of these challenges, nor a strong sense of the legal, design and governance frameworks that would allow the sector to progress and advance its economic and socio-environmental potentials. The governance of cooperative platform economy enterprises and their intersection with place-based governance raises significant issues of legal identity and its relationships to social and environmental contexts and collective identities.

Stream Leader Marc De Leeuw

New technologies rapidly blur the distinction between people and things. This stream seeks to understand the changing role for legal and regulatory frameworks in response to shifts in legal personalities driven by 21st century technological, bioscientific and economic developments. In particular, it focuses on the emergence of robotic technologies and the challenges this brings to the question of legal personhood. Artificial intelligence, driverless cars, care robots, and synthetically created life forms increasingly undermine the standard binary of organic and inorganic life, giving rise to questions of legal responsibility, ownership over hybrid entities, and the beginning and end of human or artificial life forms. 

This stream tackles these issues and engages with the empirical and theoretical problems of disruption that cyber-physical systems bring to nation-states and their legal institutions. 

Stream Leader Michael Handler

Innovation in the twenty-first century has, for the most part, progressed by work-arounds with respect to intellectual property laws. IP categories and boundaries are being stretched as laws are asked to serve very different technological and information practices. Privacy, data security, telecommunications regulation, information ethics and human rights regimes also create additional pressures on those that seek to mobilise information flows for public and private purposes.

In addition, domestic IP laws, both in Australia and overseas, are constantly facing a range of other external pressures, which have the potential to reshape the law in ways that will impact on innovation. The most notable example is the way in which new digital technologies are forcing us to rethink core elements of copyright, patent and trade mark law. But other under-explored examples include the growing complexity of the transactions over copyright, patents and geographical indications in bilateral and plurilateral trade agreements; concerns over whether IP rights should face greater competition law scrutiny; to the global reverberations likely to be felt by the UK’s decision to leave the European Union.

Understanding how the local and international IP landscape is currently being reshaped and reconstituted is essential, as is thoughtful and timely research into the impact of these changes on public expectations and aspirations. This stream focuses on:

  • how existing IP rights have been and are operationalised and stretched in practice; the role of IPRs as financial assets, and the reach of public accountability measures for transnational IT businesses;
  • what twenty-first century technologies can tell us about the foundations of core trade mark law doctrines (by way of an exploration of keyword advertising case law in Australia, the EU and the US);
  • how law-makers are likely to respond to pressures to amend IP laws in response to new, disruptive technologies that challenge the law’s foundational concepts; and
  • how historical and theoretical concerns can inform our understanding of IP law and impact on studies of the technologies of today.

Stream Leader Monika Zalnieriute

This stream explores the relationship and tension between one of the most iconic social values - the rule of law - and an increasing reliance on automation in government decision-making. Combining our expertise in the field of law & technology, constitutional and administrative law, human rights and legal theory, it aims to:

  • critically investigate how the core principles of the rule of law are affected by the increasing reliance automation tools by states;
  • highlight the most problematic aspects of automation from the rule of law perspective,
  • explore the potential and limits of technologist solutions and approaches to the rule or law;
  • consider how automation of government decision-making will reshape and is already reshaping the evolving concept of the rule of law;
  • propose high-level guidance for policy-makers;
  • sketch out an an exploratory/preliminary research agenda for the future scholarship at the intersection of technology and constitutional legal theory.