Melbourne Law School - Theses
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ItemWhen seeing is no longer believing: Is Australian law ready for deep fakes?( 2021)Deep fakes are currently proliferating in our society, and they are becoming increasingly indistinguishable from genuine photographs, audio or video recordings. In this paper, I explore the challenges that deep fakes present for individuals who may suffer harm as a result of these engines of disinformation targeting their identities. But at the same time, I point to some positive use cases involving deep fakes. As with many new technologies, I argue that a rush to regulate deep fakes risks stifling innovation and competition in the still fledgling market for synthetic media as a result of the shift it would entail from research and development to compliance costs. My argument therefore is for a more carefully considered, targeted approach designed to minimise the harms associated with deep fakes while leaving space for benefits.
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ItemThe war of the wrongdoers: When are wrongdoers truly unequal?( 2021)The law relating to multiple wrongdoers for civil wrongs has a chequered history. For centuries, solidary liability, which applies where wrongdoers jointly or independently cause the same loss, indivisible loss, has ensured that the plaintiff is able to seek full recourse from any defendant who was a necessary ingredient or cause of the harm suffered. Undoubtedly, the system has led many “deep-pocketed” defendants – who are the obvious targets of any plaintiff - to question whether they should be left on the hook for loss which the law recognises as the shared and indivisible fault of multiple defendant parties. In the relatively recent spate of reforms, the system of attributing fault between multiple defendants has been overhauled by a myriad of reforms. The reforms achieve multiple ends in different contexts. What this paper will refer to as “contribution reforms” have achieved two main ends. Firstly, they have enabled courts to order defendants to ‘contribute’ in the context of tortious wrongs an area in which the law has previously disallowed contribution. Secondly, the reforms have enabled courts to attribute liability on a pro rata basis which reflects the defendants’ respective wrongdoing – whereas previously the courts were only able to attribute a pro rata percentage of liability. What the paper will call “proportionate liability” reforms have removed solidary liability from the law altogether – in certain legislatively defined contexts. Similar to the contribution reforms, the court is empowered to apportion blame based on the respective wrongdoings of the wrongdoers or defendants. Drawing on from the law of contributory negligence, both sets of reforms rely on the dual tests of “causal potency” and “moral blameworthiness” when assessing the proportion of liability that should be attributed to either of the defendants. The focus of this paper will be to draw from the learnings of each of the “contribution” and contribution-like regimes: contribution as it applies in the general law, the contribution reforms and the proportionate liability reforms, in search of a unified approach to the principle of contribution in the context of civil wrongs. Section [II] of the paper considers the principle of contribution. It argues that that “eligibility” limitation, which requires that the defendants each be liable for coordinate liabilities is difficult to apply and unsound in principle. The Section concludes by arguing that unjust enrichment provides an adequate and unifying “eligibility” criterion, in preference to the existing “coordinate liabilities,” test. However, unjust enrichment does not provide an adequate basis upon which the court can attribute liability between the defendants. (The pro rata attribution of liability is an outworking of contribution’s paradigmatic or early cases which arose from surety situation – something which cannot be readily applied in the context of torts and civil wrongs, more generally). Sections [III] and [IV] consider how both the contribution and proportionate liability reforms manage apportioning liability regarding the perceived or actual responsibility for the loss (rather than pro rata) and the lessons that could be learned from the dual tests of causal potency and moral blameworthiness, which the reforms apply in attributing liability between multiple wrongdoers. The section concludes that the dual tests of “causal potency” and “moral blameworthiness” are inadequate and present no better or legitimate alternative to the pro rata status quo that applies under the general law of contribution. Section [V] provides an alternative approach to the apportionment of responsibility by referencing criminal law principles applicable to sentencing. The argument is underpinned by the acknowledgement that, once the plaintiff’s loss is determined as a loss necessarily caused by either defendant, the question necessarily becomes one of comparing and adjudging blame – a task which the criminal law courts conduct expertly.