Rules to Reality: how regulation shapes, or fails to shape, our daily lives

Today I speak with Professor Kate Henne. Kate is the director of RegNet, which is the school of Regulation and Global Governance at ANU. She also leads the Justice and Techno Science Lab within the RegNet school. Kate’s research interests and areas of expertise are enormous, and I’ll put links to just some examples in the show notes, but to give you a flavour, they focus on the intersection of the politics and technology as it relates to biomedicalisation, criminalisation, gender regulation, human enhancement and wellbeing, and heavily discussed in this podcast, surveillance and police technologies.

Technologies of these kinds are profilerating and making their way into our life in visible and invisible ways. They’re becoming normalised, part of how we deliver services, how we prevent or monitor cheating, or how police police. Various digital technologies aren’t just focused on organising calendards or romantically swiping in your neighbourhood, they’re increasingly being called on to address systemic and structural issues in our community – it’s not clear whether these technologies do more harm than good. What is clear is that that the potential benefits of technologies are married to real risks. And those risks mean we need to have a conversation about regulation.

Kate is a wonderful expert to guide us through that conversation. Despite being so knowledgeable, Kate is a very generous conversationalist, and very regularly highlights the excellent research of her colleagues. I think you’ll enjoy this one to start off the year.

Timestamps:

Why regulating technology matters (2:40)

Technology, ecosystems and surveillance (5:00)

Government technologies and unintended consequences (9:00)

How Big Tech facilitates a shift in how racism and discrimination operates (19:15)

The role of private tech and public regulators in addressing hate speech (25:00)

How to involve civil society ethically and efficiently in regulating tech (27:30)

Principles for technology that go beyond fairness (28:45)

What Professor Henne wants listeners to consider from now (36:45)

Shownotes:

Professor Kate Henne’s research profile: https://researchprofiles.anu.edu.au/en/persons/kate-henne

Justice and Technoscience lab: https://regnet.anu.edu.au/research/centres/justice-and-technoscience-lab-justech

Some of Professor Henne’s research on regulation of doping in sport: https://journals.sagepub.com/doi/pdf/10.1177/0193723515596203?casa_token=CBifKcX5E28AAAAA:fQVcN4cWvRpAZZYnWlEhd2XZVaok7GZ4Pfb9yGN-LeTYGoSS_APM5i1CYfbRIVuW10nKRbWKyy9oJqE

https://regnet.anu.edu.au/sites/default/files/publications/attachments/2019-01/Dilemmas%20of%20Gender%20and%20Global%20Sports%20Governance.pdf

Research mentioned from a/Professor Natasha Tusikov: https://ojs.library.queensu.ca/index.php/surveillance-and-society/article/download/12908/8475/

Safiya Umoja Noble’s book, Algorithms of Racism: https://nyupress.or

Today I am speaking to Dylan from Vixen Collective, Victoria’s peer only sex work organisation, as recognised by Scarlet Alliance, Australian Sex Worker Association. Vixen Collective promote the cultural, legal, human, occupational and civil rights of sex workers. Most recently you might have heard from them during their Victorian campaign to fully decriminalise sex work.

The conversation today was illuminating. There are few areas where regulation does a more damaging and discriminatory job than sex work in Victoria. The laws do not work, and need to be repealed and replaced with a fully-decriminalised approach to regulating sex-work. Dylan steps us through these changes, explaining why full decriminalisation is so important, but also, they help reframe some of the assumptions that underpin debates.

What came through clearly is that we have got to get our discriminatory laws and attitudes out of their way, because sex workers are the experts in their industry and experience – they know what to do. I think you’ll learn a lot from this instalment. Enjoy.

Timestamps:

Why regulation matters to the sex work community (2:00)

An update on the Sex Work Decriminalisation Bill 2021 before Parliament (8:00)

Explaining what sex work decriminalisation is (12:00)

The steps beyond decriminalisation (16:30)

Stigma and discrimination as ongoing barriers to full citizenship (22:00)

How we can reframe debates about sex work to focus on human rights (27:45)

What listeners can do (33:00)

Show notes:

Learn more about Vixen Collective’s policy asks from their No Sex Worker Left Behind campaign: https://www.vixencollective.org/campaigns.

Check out this briefing paper from Scarlett Alliance: https://scarletalliance.org.au/library/briefing_paper_full_decrim

You can follow Vixen Collective on Twitter: https://twitter.com/VixenCollective

Five things you can do:

1) Find your MP

Find your local MP: https://www.parliament.vic.gov.au/about/electorates

2) Give them a call

Call them to let them know you want full decriminalisation of sex work in Victoria. Leave a voicemail if you need to.

3) Tweet

Tweet your local MP [@yourlocalmp] and use the #nosexworkerleftbehind hashtag

4) Email

If you prefer, you can email them using the details you found in step 1.

5) Share your actions

Share what you’ve done with your friends and family, and encourage them to do the same.

Today I speak with Dr Niki Vincent (she/her), Victoria’s first Gender Equality Commissioner. Dr Vincent is responsible for overseeing the 2020 Gender Equality Act, which aims to address gender inequality in all Victorian public sector workplaces, and promote gender equality to the community more broadly. I actually met Niki during her previous role as South Australian Commissioner for Equal Opportunity, which she served from 2016 to 2020. In today’s talk, Niki makes clear that gender inequality is still an issue, how the Victorian government has tried to address this through world-first legislation, but also unpacking some of the moral and social responsibilities on people like myself, who have benefited from inequality.

Apologies for brief issues with sound quality - internet connections were funky.

Time-stamps

Why does regulation matter to Dr Vincent (2:00)

The Gender Equality Act is an Australian-first (4:45)

What the Gender Equality Act is trying to do (7:30)

What we know and what we need to learn about inequality (18:00)

What roles we have to address inequality (27:00)

What you can do to address inequality (35:00)

Show notes

Read more about the Gender Equality Commissioner, and see if you can apply the gender impact assessments to your work! If you are a public sector body, the new reporting platform has been launched too.

Check your potential biases with the IAT activity that the Commissioner discussed.

Read the wonderful book, Invisible Women by Caroline Criado Perez.

Today I speak with Emeritus Professor John Braithwaite from the Australian National University's School of Regulation and Governance (RegNet). In 1992 John and Ian Ayres wrote a book that would change how people understand regulation. It was called Responsive regulation: Transcending the deregulation debate. A simple google of Google Scholar finds that it has been cited over 5700 times! The theory has been developed and applied in too many contexts to list. If that wasn't enough, John has also been at the forefront of restorative justice research and advocacy for the last 30 years. This doesn't do justice to his expertise, so you will just have to do your own research.

Time-stamps: 

Why regulation matters to John (2:00)

What is responsive regulation (12:30)

The risks of capture and corruption for regulators (18:00)

The role of civil society to prevent capture and corruption of regulators (20:00)

What is restorative justice (25:00)

How the law steals your conflicts (28:00)

How does restorative justice deal with individual accountability (33:45)

How does John approach the question of freedom and domination in restorative and responsive regulation (44:00)

The one thing John wants you to do (49:00)

Show notes

The pyramid of sanctions!: http://johnbraithwaite.com/responsive-regulation/pyramid-of-supports-sanctions/

Today I speak with Professor Fiona Haines from the School of Social and Political Sciences at the Univerrsity of Melbourne, and Honorary Professor at RegNet at the ANU. Ummmm what hasn’t Fiona done or written on.  Her work includes regulation of corporate crime, industrial disasters, grievances with multinational corporations, human rights issues and much more. Her book in 2011, the Paradox of Regulation, was formative for me entering into the regulation space, and her more recent forays into what she terms “fields of struggle” are truly fascinating for regulation experts.

This was the most enjoyable conversation I’ve had so far. Before we hit record Fiona was clear that she wanted it to be conversational, where we would build on one another’s thoughts. Therefore there is a lot more of me and my thoughts in this episode, but it’s given the intellectual architecture by Professor Haines, who was very generous with her wisdom, but also humility.

Time-stamps:

The paradox at the heart of regulation (2:00)

How Royal Commissions highlight the distinctions between actuarial and sociocultural risk (7:00)

What "fields of struggle" research tells us about regulation (15:00)

What do the "rules of the game" mean for the mental health system (24:00)

What happens when someone tries to change the "rules of the game" (30:30)

How the "social licence" to operate becomes important when the law fails (32:30)

When the harm is embedded in the benefit, regulation is hard (35:30)

Early intervention in mental health and the need to balance harms and benefits (46:45)

The importance of difficult conversations when we arrive at incommensurables (52:45)

One thing you can do (56:00)

Today I am speaking with Emeritus Professor of Law from the University of Sydney Law School, Terry Carney. If you think you have an original opinion, Terry probably already wrote it, like 20 years ago. Terry has written on and worked in, mental health law, child welfare, adult guardianship and administration law, and for the narrow purposes of this episode, social security law. In addition to overseeing the writing of the Social Security Act in 1991, Terry served 40 years as a member of the Social Security Appeals Tribunal, and its successor, the Social Services and Child Support Division of the Administrative Appeals Tribunal.

Today we spoke about the Online Compliance Intervention policy, or as you would know it, robodebt. I asked Terry how the policy came about, what kinds of logical and legal errors it committed, and what those errors reveal about our public sector, public policy making and regulatory oversight systems. It’s not clear that we are in a better place a year or two away from Robo-debts collapse, so listen to what Terry says we need to do to reform the system.

Time-stamps

Why regulation matters to Terry (2:00)

What was Robo-debt? (6:00)

How much money did Robo-debt actually recoup? (18:00)

How did this policy get through the checks and balances....? (22:00)

How regulatory capture can explain the non-response from the Commonwealth Ombudsman (28:00)

Have we learnt the public policy and regulatory lessons from Robo-debt? (37:00)

Have the regulators learnt from their mistakes? (46:00)

What can the listeners go do after hearing Terry? (53:00)

Show notes

Calls for a Royal Commission from expert Dr Darren O'Donovan: https://theconversation.com/the-problem-is-not-fixed-why-we-need-a-royal-commission-into-robodebt-141273

A brief on the "Thodie" report mentioned by Terry: https://theconversation.com/report-on-public-service-overhaul-a-good-start-but-parliamentary-inquiry-is-needed-127602 

Brief article from Terry on automated welfare: https://www.ejaustralia.org.au/wp/social-security-rights-review/automated-decision-making-in-welfare/

Today we continue the theme from the last episode with Professor Camilla Nelson about the family court system. In this episode I interview a young person with experience of going through the family court and child protection system. Section 121 of the Family Law Act, and other laws in the child protection system, prevent me from identifying the young person, which is frankly absurd. This muzzles young people, preventing them from speaking up about what is happening to them. Instead of protecting children, it protects underperforming child protection and family court systems and officials.

I would normally introduce the person here, but instead I will say that this person highlighted all of the value we don’t have in our public debate around the family law, family violence and child protection systems. They highlighted how impoverished our notions of care in the child protection system are, how alienated young people are from the decisions affecting their lives, and how much better our public policy would be if they were given more opportunity and better platforms to share their expertise.

Timestamps:

Why regulation matters to young people involved in the Child Protection, Family Law and Family Violence systems (2:00)

Does the family law system really act in the best interests of children (5:30)

Detailing the number of workers involved in a child or young person’s life (7:00)

“Best interests” assessments of a child often fail to take into account what the child wants (11:00)

Why this occurs so frequently across the system (14:00)

Whether children and young people safer after their interactions with the family law, family violence and child protection systems (17:00)

Whether just law reform changes alone would give children and young people more choice (21:00)

What can be done to give children and young people more say and more safety (25:00)

One (or more!) things the listeners do after listening to this episode (31:15)

Show-notes

Some organisations you should check out:

Young Workers Centre

Youth Law

Foundation for Young Australians

Y-Change

Today I am speaking with Associate Professor Camilla Nelson. Camilla is an expert and writer on gender, law and media cultures at the University of Notre Dame. Camilla has authored several books, including recent essay collections called On Happiness and Dangerous Ideas About Mothers. I’m interviewing Camilla on her recent book co-authored with Professor Catharine Lumby, Broken: Children, parents and family courts.

In the discussion we highlight how the family courts have strayed from their original intention 50 years ago, how political violence has shaped their culture, and that this means children and women are often less safe after going through the system.

A content note that this talk does discuss family violence. Please call 1800 respect if you require assistance, or I know that you have your trusted supports.

Timestamps

Why regulation matters to children, women and families in the family court system (2:00)

How a lack of regulation of predatory lawyering is impacting families (11:00)

How the current family laws function to regulate and reinstate patriarchal relations between parents (19:00)

How access obligations can operate as surveillance systems on parents (26:30)

How this wasn’t the intention of Parliament when Gough Whitlam passed the Family Law Act 1974 (32:45)

How political terrorism led to more influence of men’s rights activists over the family law system (36:15)

How neutrally-appearing laws favour men over women in family law (43:00)

What kinds of changes do we need to make to improve the system (46:30)

What you can do to help (53:30).

 

Show notes

On the recent conviction of Leonard Warwick (the “Family Court Bomber”), 35 years after he committed the offence: https://www.youtube.com/watch?v=ZWvRgq5eylo

 

Write to your MP and the Attorney General!

Locate your local Commonwealth MP: https://www.aph.gov.au/Senators_and_Members/Members

The Attorney-General’s office (the Minister responsible for the legal system): https://www.attorneygeneral.gov.au/contact

 

Subject Line: Reform our family court system based on the rights of the child

 

Dear [Insert]

 

I am writing to you as a member of the [insert electorate]. I am contacting you to seek your public support and action to reform the Family Law Act 1974 (Cth) to better reflect the Convention on the Rights of the Child. Children today have fewer rights in family law processes than they did in 1974.

Australia signed the Convention of the Rights of the Child in 1990, but we still see no action to implement this in the family court. In casting my vote this election, I will be assessing whether you have fought for the inclusion of greater rights for children to be involved in the decisions that affect their lives.

The work to implement this has been done by countless previous law reform processes. The time for action to protect parents and children is now.

Professor the Honourable Kevin Bell AM QC is the Executive Director of the Castan Centre for Human Rights Law, Commissioner for the Yoo-rrook Justice Commission, and Co-Chair of the Steering Committee of the National Mental Health Commission National Stigma and Discrimination Reduction Strategy. Among his many accomplishments, as Justice of the Supreme Court of Victoria and President of the Victorian Civil and Administrative Tribunal Professor Bell has presided over some of Victoria’s most important human rights judgements, including Patrick’s Case and the 2017 PBU & NJE case on electroconvulsive treatment.

Today we spoke about law, the role of judges in directly or indirectly exercising oversight of systems and how taking a human rights based approach can lead to the best experiences of and outcomes from, the courts.

[A note on language: there are diverse ways to understand and describe distress. Different terms are used in this podcast. We discuss in the episode, the need to acknowledge labelling and power in how terms like mental illness and mental health are used]

Timestamps

Why regulation matters to Professor Bell (2:00)

How higher courts come to exercise regulation (or supervision) over the conduct and decisions of lower courts (11:00)

Why courts need to understand context in making decisions, but avoid attempts to set public policy (14:00)

What a human rights based approach to regulation means for Professor Bell (16:15)

How human rights based judicial oversight and regulation can lead to different (better) questions and analyses (24:15)

How the Charter of Human Rights and Responsibilities Act 2006 regulates judicial decision-making (26:40)

What Patrick's Case tells us about human rights based regulation and judicial decision-making (29:45)

What PBU & NJE tell us about human rights based regulation and judicial decision-making (38:15)

The importance of shifting language, and acknowledging "labelling" and power, in discussing "mental health" (mental distress, madness, mental illness) (44:30)

How judicial oversight or regulation is similar and different from other forms of regulation (47:40)

One thing Professor Bell wants you to do (55:10).

Show notes

Cases discussed (explainers)

Patrick's Case: https://www.hrlc.org.au/human-rights-case-summaries/p-j-b-v-melbourne-health-anor-patricks-case-2011-vsc-327-19-july-2011

PBU & NJE: https://www.legalaid.vic.gov.au/about-us/news/landmark-judgment-strengthens-patients-rights-in-compulsory-electroconvulsive-treatment-cases

Matsoukatidou Case: https://www.hrlc.org.au/human-rights-case-summaries/2017/4/24/victorian-supreme-court-rules-that-courts-have-fair-hearing-and-equality-obligations-to-assist-self-represented-litigants

Andreea and Lee-Anne educate us on the lived experience of law, justice and injustice for Aboriginal people in Victoria. Our bail laws are locking vulnerable people in prison. In prison, conditions are poor and we still see Aboriginal deaths in custody. 30 years after the Royal Commission into Aboriginal Deaths in Custody, and with a looming deadline for Australia to implement new laws to improve conditions in detention, VALS are argue for action now.

Andreea is Head of Policy, Communications and Strategy at VALS. She has previously worked as a criminal defence lawyer and the coordinator of the community legal education team at the North Australian Aboriginal Justice Agency. She has a Master of Laws and completed her Churchill Fellowship on culturally appropriate implementation of the Optional Protocol to the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) for Aboriginal and Torres Strait Islander people. Andreea is a PhD candidate at the University of Technology Sydney.

Lee-Anne Carter is a Wiradjuri and Noongar woman and parent of 4 children. Lee-Anne has worked at VALS since 2011 and is the Statewide Community Justice Program Leader. In this role, Lee-Anne manages such community programs as the VALS’ Custody Notification Service, the Baggarrook Aboriginal Women’s transitional housing program, Regional Client Service Officers Program, V-PeR, Family Violence Client Service Officers program and VALS Community Legal Education program. Lee-Anne has a background in case-management, in particular working with clients with complex needs and disabilities. Her passion for the direct contact with community is an essential part of VALS’ holistic approach and the practical, tangible work undertaken by the Community Justice Programs team.

Timestamps:

2:30 About Andreea and Lee-Anne

6:30 Why regulation matters to First Nations

17:00 30 years on from the Royal Commission - why are we still having the same conversations?

24:30 Victoria's bail laws are in desperate need of reform

34:30 Jails as a solution to failed social services

40:50 VALS Open Letter calling for bail reform

42:30 The Optional Protocol on the Convention Against Torture in Victoria

52:00 What the listeners should do

Show notes:

Here you can learn more about VALS' work:

VALS web page: Aboriginal Deaths in Custody (the OPCAT factsheet is here, the webinar is here)

VALS webpage: Fix Victoria’s Bail Laws (the letter is