29 September 2014


'A matter of consistency: Dignity and personhood in human rights biolaw' by Thomas Finegan in (2014) 14(1-2) Medical Law International 80 argues
Between 1997 and 2005, four formal international law documents were promulgated involving the intersection of human rights law with bioethics. Underpinning and animating each of these legal texts is an implicit philosophy of human dignity and personhood. This article makes explicit the operative philosophy in each of the documents and questions whether the four texts in question evince an overarching, consistent approach to dignity and personhood. The article proceeds by distinguishing between the two broad and incompatible ways of understanding both of the core categories at issue: intrinsic and extrinsic dignity, and Boethian and Lockean personhood. An exegesis of the legal texts reveals the mutually supportive role intrinsic dignity and Boethian personhood play throughout the four documents. The exegesis highlights the implications this philosophy has for issues involving nascent human life, implications not always overtly stated in the legal texts themselves, though invariably—at a minimum—hinted at by these texts.  ....
A clear analysis of the various human rights biolaw instruments reveals a strong degree of consistency in how the concepts of dignity and personhood are understood throughout. The fact that the human rights biolaw corpus subscribes to an intrinsic view of dignity and a Boethian view of personhood has very clear implications for who, precisely, is to be considered a subject of human rights protection under these instruments (simply put, the bare human being). But it also has implications for ongoing debates within human rights biolaw theory, especially the debate between proponents of ‘‘interest’’ and ‘‘will’’ theories of rights. This particular debate focuses on the scope and purpose of rights, their justification, and also on who exactly is to count as a rights-bearer. For a will theory of rights, rights protect autonomous action and are therefore only directly relevant to agents capable of acting autonomously. Such a theory precludes the recognition of nonautonomous human beings as equal human rights-bearers. An interest theory of rights in the mould of Finnis’ natural law theory, however, sees rights as protective of basic human goods and basic human flourishing. Such a theory is more concerned with the ‘‘best interests’’ of human subjects than with limiting restrictions upon autonomous agency, and as such can accommodate nonautonomous human beings within its human rights framework — ‘‘interests’’ is understood here in an objective rather than subjective sense.
So an interest theory of rights can accommodate developments within human rights biolaw far more easily than will theories could plausibly claim to do, at least in terms of human rights biolaw’s acceptance of unconscious human beings as human rights subjects. But proponents of will theories of rights can, and indeed do, criticize human rights biolaw on a number of grounds. For instance, probably the most sophisticated work on human rights biolaw, Beyleveld and Brownsword’s Human Dignity in Bioethics and Biolaw disparagingly describes human rights biolaw as ‘‘a significant change to the terms of the debate’’ and incompatible with the more traditional corpus of human rights law, one guided, it is claimed, by human dignity in the form of ‘‘dignity as empowerment.’’ This coherintist critique argues for a disjunction between human rights biolaw and more general human rights law in terms of the philosophical foundations of each. That contention is itself contestable though will theorists of rights can also defer to a more metastyle argument, namely that human rights biolaw, to the extent that it offers human rights protection to unconscious human beings and/or appeals to an interest theory of rights, is unjustifiable as a matter of ethical rationality (an issue outside the scope of this article). What the proponent of a will theory of rights cannot do, though, is appeal to human rights biolaw as currently constituted as an example of a human rights legal corpus founded upon a will theory of rights. Human rights biolaw is not neutral on the controversy between will and interest theories of rights—its affirmative response to the human rights status of human beings lacking consciousness indicates that a will theory of rights cannot claim compatibility with it.
'What Do Philosophers Have Against Dignity?' by Jeremy Waldron argues
Among analytic philosophers, there is considerable antipathy towards the concept of human dignity. It is not always expressed, but the impression is conveyed that this is a rather disreputable idea and that its trumpeting in legal and political theory is to be deplored. The present paper tries to get to grips with the sources of this antipathy. Is it based on the unclarity of the concept, its religious overtones, its speciesism, or its redundancy as a moral idea. The paper makes a case for dignity as a status-concept – denoting a particular sort of moral/legal status that all humans have.

28 September 2014

Privacy Invasions

Belatedly getting around to blogging recommendations from the Australian Law Reform Commission's 332 page report [PDF] on  Serious Invasions of Privacy in the Digital Era  (ie the 'privacy tort inquiry').

The ALRC was directed, prior to the latest national election, to make recommendations regarding
1. Innovative ways in which law may reduce serious invasions of privacy in the digital era.
2. The necessity of balancing the value of privacy with other fundamental values including freedom of expression and open justice.
3. The detailed legal design of a statutory cause of action for serious invasions of privacy, including not limited to:
a. legal thresholds
b. the effect of the implied freedom of political communication
c. jurisdiction
d. fault elements
e. proof of damages
f. defences
g. exemptions
h. whether there should be a maximum award of damages
i. whether there should be a limitation period 
j. whether the cause of action should be restricted to natural and living persons
k. whether any common law causes of action should be abolished
l. access to justice
m. the availability of other court ordered remedies.
4. The nature and appropriateness of any other legal remedies for redress for serious invasions of privacy.
It was to have regard to:
• the extent and application of existing privacy statutes
• the rapid growth in capabilities and use of information, surveillance and communication technologies
• community perceptions of privacy
• relevant international standards and the desirability of consistency in laws affecting national and transnational dataflows
and take into account the ALRC 2008 For Your Information  Report (2008), relevant New South Wales and Victorian Law Reform Commission privacy reports, the Privacy Amendment (Enhancing Privacy Protection) Act 2012 (Cth) and relevant Commonwealth, State, Territory legislation, international law and case law.

 The recommendations are
R4–1 If a statutory cause of action for serious invasion of privacy is to be enacted, it should be enacted by the Commonwealth, in a Commonwealth Act (the Act).
R4–2 The cause of action should be described in the Act as an action in tort.
Two Types of Invasion
R5–1 The Act should provide that the plaintiff must prove that his or her privacy was invaded in one of the following ways:
(a) intrusion upon seclusion, such as by physically intruding into the plaintiff’s private space or by watching, listening to or recording the plaintiff’s private activities or private affairs; or
(b) misuse of private information, such as by collecting or disclosing private information about the plaintiff. 
R5–2 The Act should provide that ‘private information’ includes untrue information, but only if the information would be private if it were true.
Reasonable Expectation of Privacy
R6–1 The new tort should be actionable only where a person in the position of the plaintiff would have had a reasonable expectation of privacy, in all of the circumstances.
R6–2 The Act should provide that, in determining whether a person in the position of the plaintiff would have had a reasonable expectation of privacy in all of the circumstances, the court may consider, among other things:
(a) the nature of the private information, including whether it relates to intimate or family matters, health or medical matters, or financial matters;
(b) the means used to obtain the private information or to intrude upon seclusion, including the use of any device or technology;
(c) the place where the intrusion occurred, such as in the plaintiff’s home;
(d) the purpose of the misuse, disclosure or intrusion;
(e) how the private information was held or communicated, such as in private correspondence or a personal diary;
(f) whether and to what extent the private information was already in the public domain;
(g) the relevant attributes of the plaintiff, including the plaintiff’s age, occupation and cultural background; and
(h) the conduct of the plaintiff, including whether the plaintiff invited publicity or manifested a desire for privacy.
R7–1 The new tort should be confined to intentional or reckless invasions of privacy. It should not extend to negligent invasions of privacy, and should not attract strict liability.
R7–2 The Act should provide that an apology made by the defendant does not constitute an admission of fault or liability and is not relevant to the determination of fault or liability.
Seriousness and Proof of Damage
R8–1 The Act should provide that a plaintiff has an action under the new tort only where the invasion of privacy was ‘serious’, having regard, among other things, to:
(a) the degree of any offence, distress or harm to dignity that the invasion of privacy was likely to cause to a person of ordinary sensibilities in the position of the plaintiff; and
(b) whether the defendant was motivated by malice or knew the invasion of privacy was likely to offend, distress or harm the dignity of the plaintiff
R8–2 The plaintiff should not be required to prove actual damage to have an action under the new tort.
Balancing Privacy with Other Interests
R9–1 The Act should provide that, for the plaintiff to have a cause of action, the court must be satisfied that the public interest in privacy outweighs any countervailing public interest. A separate public interest defence would therefore be unnecessary.
R9–2 The Act should include the following list of countervailing public interest matters which a court may consider, along with any other relevant public interest matter:
(a) freedom of expression, including political communication and artistic expression;  
(b) freedom of the media, particularly to responsibly investigate and report matters of public concern and importance;
(c) the proper administration of government;
(d) open justice;
(e) public health and safety;
(f) national security; and
(g) the prevention and detection of crime and fraud.
R9–3 The Act should provide that the defendant has the burden of adducing evidence that suggests there is a countervailing public interest for the court to consider. The Act should also provide that the plaintiff has the legal onus to satisfy the court that the public interest in privacy outweighs any countervailing public interest that is raised in the proceedings.
Forums, Limitations and Other Matters
R10–1 Federal, state and territory courts should have jurisdiction to hear an action for serious invasion of privacy under the Act. Consideration should also be given to giving jurisdiction to appropriate state and territory tribunals.
R10–2 The new tort should only be actionable by natural persons. Recommendation 10–3 A cause of action for serious invasion of privacy should not survive for the benefit of the plaintiff’s estate or against the defendant’s estate.
R10–4 A person should not be able to bring an action under the new tort after the earlier of:
(a) one year from the date on which the plaintiff became aware of the invasion of privacy; or
(b) three years from the date on which the invasion of privacy occurred.
R10–5 In exceptional circumstances, the court may extend this limitation period, but the period should expire no later than six years from the date on which the invasion occurred.
R10–6 Consideration should be given to extending the limitation period where the plaintiff was under 18 years of age when the invasion of privacy occurred.
R10–7 Consideration should be given to enacting a ‘first publication rule’, also known as a ‘single publication rule’. This would limit the circumstances in which a person may bring an action in relation to the publication of private information, when that same private information had already been published in the past. 
Defences and Exemptions
R11–1 The Act should provide for a defence that the defendant’s conduct was required or authorised by law.
R11–2 The Act should provide a defence for conduct incidental to the exercise of a lawful right of defence of persons or property, where that conduct was proportionate, necessary and reasonable.
R11–3 The Act should provide for a defence of necessity.
R11–4 The Act should provide for a defence of consent.
R11–5 The Act should provide for a defence of absolute privilege.
R11–6 The Act should provide for a defence of publication of public documents.
R11–7 The Act should provide for a defence of fair report of proceedings of public concern.
R11–8 The Act should provide for an exemption for children and young persons. 12.
Remedies and Costs
R12–1 The Act should provide that courts may award damages, including damages for emotional distress.
R12–2 The Act should set out the following non-exhaustive list of factors that a court may consider when determining the amount of damages:
(a) whether the defendant had made an appropriate apology to the plaintiff;
(b) whether the defendant had published a correction;
(c) whether the plaintiff had already recovered compensation, or has agreed to receive compensation in relation to the conduct of the defendant;
(d) whether either party took reasonable steps to settle the dispute without litigation; and
(e) whether the defendant’s unreasonable conduct following the invasion of privacy, including during the proceedings, had subjected the plaintiff to particular or additional embarrassment, harm, distress or humiliation.
R12–3 The Act should provide that the court may not award a separate sum as aggravated damages.
R12–4 The Act should provide that a court may award exemplary damages in exceptional circumstances.
R12–5 The Act should provide for a cap on damages. The cap should apply to the sum of both damages for non-economic loss and any exemplary damages. This cap should not exceed the cap on damages for non-economic loss in defamation.
R12–6 The Act should provide that a court may award an account of profits.
R12–7 The Act should provide that the court may at any stage of proceedings grant an interlocutory or other injunction to restrain the threatened or apprehended invasion of privacy, where it appears to the court to be just or convenient and on such terms as the court thinks fit.
R12–8 The Act should provide that, when considering whether to grant injunctive relief before trial to restrain publication of private information, a court must have particular regard to freedom of expression and any other matters of public interest.
R12–9 The Act should provide that courts may order the delivery up and destruction or removal of material.
R12–10 The Act should provide that courts may, where false private information has been published, order the publication of a correction.
R12–11 The Act should provide that courts may order the defendant to apologise.
R12–12 The Act should provide that courts may make a declaration.
Breach of Confidence Actions for Misuse of Private Information
R13–1 If a statutory cause of action for serious invasion of privacy is not enacted, appropriate federal, state, and territory legislation should be amended to provide that, in an action for breach of confidence that concerns a serious invasion of privacy by the misuse, publication or disclosure of private information, the court may award compensation for the plaintiff’s emotional distress.
Surveillance Devices
R14–1 The Commonwealth Government should enact surveillance legislation to replace existing state and territory surveillance device laws.
R14–2 Surveillance legislation should be technology neutral. It should regulate surveillance through the use of listening devices, optical devices, tracking devices, data surveillance devices, and other devices and systems.
R14–3 The Commonwealth Government should consider consolidating telecommunications surveillance laws with the new Commonwealth surveillance legislation.
R14–4 Surveillance legislation should not contain a defence or exception for participant monitoring.
R14–5 Surveillance legislation should provide a defence for responsible journalism relating to matters of public concern and importance.
R14–6 Workplace surveillance laws should be made uniform throughout Australia.
R14–7 Surveillance legislation should provide that a court may order remedial relief, including compensation, for a person subjected to unlawful surveillance.
R14–8 State and territory governments should give jurisdiction to appropriate courts and tribunals to hear complaints about the installation and use of surveillance devices that can monitor neighbours on residential property.
R15–1 If a statutory cause of action for serious invasion of privacy is not enacted, state and territory governments should enact uniform legislation creating a tort of harassment.
New Regulatory Mechanisms
R16–1 The Commonwealth Government should consider extending the Privacy Commissioner’s powers so that the Commissioner may investigate complaints about serious invasions of privacy and make appropriate declarations. Such declarations would require referral to a court for enforcement.
R16–2 The following functions should be conferred on the Privacy Commissioner:
(a) to assist a court as amicus curiae, where the Commissioner considers it appropriate, and with the leave of the court; and
(b) to intervene in court proceedings, where the Commissioner considers it appropriate, and with the leave of the court.


The Productivity Commission has recommended "a major restructure of Australian Government funding for natural disasters" in its two volume draft report on Natural Disasters Funding.

The Commission's terms of reference were noted here.

The draft argues that
Australia is exposed to natural disasters on a recurring basis. Effective planning and mitigation of risks is an essential task for governments, businesses and households.
Current government natural disaster funding arrangements are not efficient, equitable or sustainable. They are prone to cost shifting, ad hoc responses and short-term political opportunism. Groundhog Day anecdotes abound.
The evolution of the funding arrangements can be characterised by growing generosity by the Australian Government during the previous decade, followed by a swing to constrain costs and increase oversight after the recent concentrated spate of costly disasters.
Governments generally overinvest in post-disaster reconstruction, and underinvest in mitigation that would limit the impact of natural disasters in the first place.
As such, natural disaster costs have become a growing, unfunded liability for governments, especially the Australian Government.
Australian Government post-disaster support to state governments needs to be reduced, and support for mitigation increased. Some budget provisioning is also needed.
The Commission's preferred funding reform option is to provide a principal level of support to states commensurate with relative fiscal capacity and the original 'safety-net' objective, with the option of top up insurance for those states that require it. States need to shoulder a greater share of natural disaster recovery costs to provide them with more autonomy and a sharper incentive to manage, mitigate and insure these risks. Australian Government mitigation funding to states should be increased.
Governments have a role in providing emergency relief payments to individuals who have been seriously affected by natural disasters, to avoid immediate economic and social hardship. Reducing duplication, inconsistency, inequity and inefficiency in the provision of such relief is needed.
Governments can also do better in terms of policies that allow people to understand natural disaster risks and have incentives to manage them effectively.
Information is critical to understanding and managing natural disaster risk. Information on hazards and risk exposure has improved significantly in recent years, but there are opportunities to improve its consistency, sharing and communication.
Regulations affecting the built environment have a significant influence on the exposure and vulnerability of communities to natural hazards. While building regulations have generally been effective, there is evidence that land use planning is not always incorporating natural disaster risk. Greater transparency is needed.
Insurance is an important risk management option, especially for private assets. Households and businesses should be relied upon to manage natural disaster risks to their assets. Insurance markets in Australia for natural disaster risk are generally working well. Pricing is increasingly risk reflective, even to the individual property level.