29 October 2016

Blood Data Breach

The Australian Red Cross, in reporting the large scale breach regarding data about actual and prospective blood donors, states
On 26 October the Blood Service became aware a file containing donor information was placed in an insecure environment by a third party that develops and maintains the Blood Service’s website. This file contained registration information of 550,000 donors made between 2010 and 2016. Included in the file was information such as names, addresses and dates of birth. 
This information was copied by a person scanning for security vulnerabilities who then, through an intermediary, informed the Australian Cyber Emergency Response Team (AusCERT) with whom the Blood Service has membership. 
With assistance of AusCERT, the Blood Service took immediate action to address the problem. The Blood Service has been in communication with the Australian Cyber Security Centre and the Office of the Australian Information Commissioner. 
IDCARE, a national identity and cyber support service, has assessed the information accessed as of low risk of future direct misuse. 
To our knowledge all known copies of the data have been deleted. However, investigations are continuing. 
The online forms do not connect to our secure databases which contain more sensitive medical information. 
The Blood Service continues to take a strong approach to cyber safety so donors and the Australian public can feel confident in using our systems.
In the circumstances the organisations' knowledge of deletion of copies is unlikely to be exhaustive.

Information exposed through the breach (responses to the online blood donor appointment request form) encompasses answers to
  • First and last name 
  • Address, Suburb, Postcode, State 
  • Mobile phone (optional) 
  • Email Donor ID (optional). 
  •  Have you donated in the last 24 months? 
  • Postcode or suburb for donation
  •  Preferred date range request for donation, and preferred time of day 
  • Preferred location for donation 
  • Preferred appointment time 
  • Date of birth 
  • Gender 
  • In the 4 months leading up to your appointment, will you travel outside of Australia? 
  • Between 1980 and 1986, did you live in the UK for a cumulative period of 6 months? 
  • Are you feeling unhealthy or unwell? 
  • Are you taking antibiotics at the moment? 
  • Are you currently pregnant or have you been pregnant in the last 9 months? 
  • Have you had an operation or surgical procedure in the last 6 months? 
  • Are you planning any operations or surgical procedures in the next 3 months? 
  • In the last week, have you had any dental work, cleaning, fillings or extractions? 
  • In the last 4 months: Have you had a tattoo? Have you had a piercing? 
  • Do you weigh less than 50 kilograms?
  •  In the last 12 months, have you engaged in at-risk sexual behaviour?
The Red Cross states
A file containing donor information was placed in an insecure environment by a third party that develops and maintains the Blood Service’s website. This was a human error on the part of the third party service. This information was copied by a person scanning for security vulnerabilities who then, through an intermediary, informed AusCERT. 
What are you doing about this? 
Working with AusCERT, a cyber security organisation who provides information and security advice to us as a member of their service, we have managed to have all known copies of the archive deleted, and have removed the vulnerability from the web developer’s server. We’ve mobilised a team of security experts to conduct a forensic analysis of the incident. We are also establishing a taskforce including independent experts to conduct a thorough investigation of governance and security structures within the Blood Service. 
How long was the data available? 
At this stage we understand the data may have been available from 5 September 2016 to 25 October 2016. Our forensic experts are working to confirm the exact dates. To our knowledge, all known copies of the data have been deleted, however investigations are continuing. 
When was the data accessed? 
We believe the archive was accessed on 24 October 2016, our forensic experts are confirming this. We have managed to have all known copies deleted and have removed the vulnerability from the third party service that develops and maintains the Blood Service’s website. 
Why should I trust you with my information? 
We take the security of information our donors provide extremely seriously and have done everything in our power, since becoming aware of this situation, to address this security issue. 
Is this the Blood Service's fault? 
This was a human error on the part of the third party service that develops and maintains the Blood Service’s website. We take full responsibility for this mistake and apologise unreservedly to all affected. We take cyber security very seriously and we are deeply disappointed this occurred. 
What actions are you taking? 
Working with AusCERT we have managed to delete all known copies of the archive, and have removed the vulnerability from the third party service that develops and maintains the Blood Service’s website. We’ve mobilised a team of security experts to conduct a forensic analysis of the incident. We are also establishing a taskforce including independent experts to conduct a thorough investigation of governance and security structures within the Blood Service. IDCARE, a national identity and cyber support service, has assessed the information accessed as of low risk of future direct misuse. We are reviewing our arrangements with the third party provider.

US broadband privacy rules

The US Federal Communications Commission this week adopted rules requiring broadband internet service providers to protect the privacy of their customers.
The rules ensure broadband customers have meaningful choice, greater transparency and strong security protections for their personal information collected by ISPs. 
 The rules implement privacy requirements of Section 222 of the Communications Act. The FCC states that
To provide consumers more control over the use of their personal information, the rules establish a framework of customer consent required for ISPs to use and share their customers’ personal information that is calibrated to the sensitivity of the information. 
This approach is consistent with other privacy frameworks, including the Federal Trade Commission’s and the Administration’s Consumer Privacy Bill of Rights. 
The rules separate the use and sharing of information into three categories and include clear guidance for both ISPs and customers about the transparency, choice and security requirements for customers’ personal information:
  • Opt-in: ISPs are required to obtain affirmative “opt-in” consent from consumers to use and share sensitive information. The rules specify categories of information that are considered sensitive, which include precise geo-location, financial information, health information, children’s information, social security numbers, web browsing history, app usage history and the content of communications. 
  • Opt-out: ISPs would be allowed to use and share non-sensitive information unless a customer “opts-out.” All other individually identifiable customer information – for example, email address or service tier information – would be considered non-sensitive and the use and sharing of that information would be subject to opt-out consent, consistent with consumer expectations.
  • Exceptions to consent requirements: Customer consent is inferred for certain purposes specified in the statute, including the provision of broadband service or billing and collection. For the use of this information, no additional customer consent is required beyond the creation of the customer-ISP relationship.
Additionally the rules include:
  • Transparency requirements that require ISPs to provide customers with clear, conspicuous and persistent notice about the information they collect, how it may be used and with whom it may be shared, as well as how customers can change their privacy preferences; 
  • A requirement that broadband providers engage in reasonable data security practices and guidelines on steps ISPs should consider taking, such as implementing relevant industry best practices, providing appropriate oversight of security practices, implementing robust customer authentication tools, and proper disposal of data consistent with FTC best practices and the Consumer Privacy Bill of Rights.  
  • Common-sense data breach notification requirements to encourage ISPs to protect the confidentiality of customer data, and to give consumers and law enforcement notice of failures to protect such information. 
The FCC notes that
The scope of the rules is limited to broadband service providers and other telecommunications carriers. 
The rules do not apply to the privacy practices of web sites and other “edge services” over which the Federal Trade Commission has authority. 
The scope of the rules do not include other services of a broadband provider, such as the operation of a social media website, or issues such as government surveillance, encryption or law enforcement.

Speech and relationships

'Two Rights of Free Speech' (Cornell Legal Studies Research Paper No. 6-37) by Andrei Marmor argues that
the right to freedom of expression is not a single right, complex as it may be, but spans two separate rights that I label the right to speak and the right to hear. Roughly, the right to speak stands for the right of a person to express freely whatever they wish to communicate to some other persons or to the public at large. The right to hear stands for the right to have free and unfettered access to any kind of content that has been communicated by others. The right to speak and the right to hear are two separate rights, grounded in different kinds of interests. Choice and control are central aspects of the right to speak and much less central to the right to hear. I try to show that this division of rights and their respective rationales can be utilized to explain how we think about some of the limits of the right to freedom of expression, particularly in the context of conflicts between the right to speak and the right to hear, conflicts that are rather pervasive. I also argue, though perhaps less conclusively, that in thinking about the limits of freedom of expression, an exclusive focus on the harm principle would be misguided. There is no reason to deny that speech is often harmful, sometimes very much so, but the prevention of harm is not sufficient to justify legal prohibition, at least not in this case.
'Just Relationships' by Hanoch Dagan and Avihay Dorfman in (2016) 116(6) Columbia Law Review comments
Scholars traditionally conceptualize private law around a commitment to the values of formal freedom and equality. Critics of the traditional view (including lawyer-economists) dispute the significance of a distinction between public and private law, construing private law as merely one form of public regulation. Both positions are flawed. The traditional position is conceptually misguided and normatively disap­pointing; the critical position confuses a justified rejection of private law libertarianism with a wholesale dismissal of the idea of a private law, thus denying private law’s inherent value. 
This Article seeks to break the impasse between these two positions by offering an innovative account of the values that should, and to some extent already do, underlie the law of interpersonal interactions among private individuals in a liberal state. Rather than succumbing to the unappealing adherence to formal freedom and equality, private law should openly embrace the liberal commitment to self-determination and substantive equality. A liberal private law establishes frameworks of respectful interaction conducive to self-determining individuals. These frameworks are indispensable for a society in which individuals recognize each other as genuinely free and equal agents.


'Corporate Entities: Their Ownership, Control, and Purpose' (Cornell Legal Studies Research Paper No. 16-38) by Lynn A. Stout - published as a chapter in the Oxford Handbook of Law and Economics - provides
an introduction to the law and economics of the corporate form. It first distinguishes “the corporation” from “the firm.” It then describes and discusses the characteristics of the corporate form, including legal personality, limited liability, delegated management, transferable equity, and perpetual life. It then reviews the dominant theories of the corporation, including the entity theory, the aggregate theory, the property (principal/agent) theory, the nexus of contracts theory, the team production theory, and the franchise government/concession theory. It concludes by discussing various theories of corporate purpose, including the state interest, managerialist, customer service, shareholder value/primacy, stakeholder welfare, team production, and long-term production approaches to understanding the purpose of corporations.

27 October 2016


From the speech by Australian Competition and Consumer Commission Chairman Rod Sims at today’s RBB Economics Conference in Sydney
The rise of large corporations in the Australian economy has been substantial. Indeed it seems we have outpaced the US. 
Analysis prepared by Port Jackson Partners Limited shows the revenue of Australia’s largest 100 listed companies increased from 15% of GDP in 1993 to 47% of GDP in 2015. This compares to the US figures of 33% to 46%. 
In Australia many markets are concentrated or are likely to become concentrated as firms pursue efficiencies from scale. In some markets there may not be room for more than a few efficiently sized firms given the size of demand. 
From a competition perspective, what we need to understand is whether smaller rivals or new entrants can readily contest the position of larger, more established firms. 
We should, therefore, have an eye to how often the identity of large firms change.  Again, drawing on work by Port Jackson Partners Ltd, of the ASX top 100 companies in 1990, only 29 companies remained in the top 100 as at October 2015.
Sims notes
drawing on work by Port Jackson Partners Ltd, of the ASX top 100 companies in 1990, only 29 companies remained in the top 100 as at October 2015. Sixty one had been acquired or merged, five had disappeared due to corporate collapses and five had slipped from the top 100. 
However, the identity of the six largest listed companies has not changed substantially in recent times. For example, in 2005 the top six listed companies by market capitalisation, in order, were BHP, Telstra, and four banks: Commonwealth, NAB, ANZ and Westpac. Today the top six companies in order are four banks: Commonwealth, Westpac, ANZ and NAB, followed by BHP Billiton and Telstra. 
But the top 6 companies have not grown as strongly as the rest of the top 100, as another chart from Port Jackson Partners Ltd shows. Since 1993, the top 6’s revenue as a proportion of GDP has doubled from 7% to 16%. For the rest of the top 100 this percentage has nearly quadrupled from 8% to 31%.
Sims questioned belief that we need not be concerned with heavy concentration and monopolistic behaviour.
It seems to me that, absent a clear and convincing economic and evidence based explanation of how a merger will avoid harming consumers, the standard economic wisdom should prevail. 
This wisdom is that mergers resulting in high levels of concentration in markets with substantial barriers to entry will usually reduce competition and cause harm to consumers and our economy. Circumstances where monopoly pricing has no effect, or only a small effect on economic efficiency, are rare.
Sims identified questions about market concentration and merger analysis, including:

  •  Why is it that economic argument and opinion increasingly down plays conventional economic theory and wisdom on high levels of consolidation and monopolies? 
  • Do we need to consider something similar to the approach adopted by US courts where once markets are defined and the merger is likely to result in a significant increase in concentration, there exists a “rebuttable presumption” that the merger should not proceed absent evidence to the contrary? There will be times when a merger to high concentration is acceptable, due perhaps to low entry barriers, but logic says it will not be the norm. 
  • Why shouldn’t those arguing the unconventional have the burden of producing evidence to support their position? 
  • Are regulators able to analyse and act where large incumbent firms continue to acquire promising start-ups? Is there too much focus on overlap in specific narrow market sectors? 
  • Should we focus more on the wider actual and potential competitive constraints and the extent or strength of those constraints? 
  • How many different forms of remedy should a competition regulator need to assess before saying “enough”?

24 October 2016

Punitive Damages and ISDS empiricism

'Punitive Damages Revisited: A Statistical Analysis of How Federal Circuit Courts Decide the Constitutionality of Such Awards' by Hironari Momioka in 2014 uses the data of punitive damages decisions of U.S. federal circuit courts from 2004 to 2012 in an attempt to establish empirically that.
(1) There is no apparent statistical difference between the levels of jury and judge awards.
(2) U.S. Supreme Court decisions such as Philip Morris (2007) or Exxon (2008) do not actually or substantially affect the level of punitive damage awards.
(3) With regard to the cases involving remittitur or reduction of awards, the Exxon decision did not radically affect the decreasing ratio of punitive to compensatory damage awards.
(4) As the levels of compensatory awards go up, the ratio becomes strikingly low and stable.
(5) Finally, the proportionality between punitive and compensatory awards is not the key factor that influences upper court judges when they consider the constitutionality of punitive damages. Unexplained portions of the relationship between the amount of punitive damages and the wealth of a defendant remain to be examined further.
'The Impact of Investment Treaties and ISDS Provisions on Foreign Direct Investment: A Baseline Econometric Analysis' (Sydney Law School Research Paper No. 16/74) by Shiro Patrick Armstrong and Luke R. Nottage considers Investor-State Dispute Settlement.

The authors comment 
Based on an interdisciplinary and cross-institutional research project (2014-7) assessing international investment treaty dispute management more broadly, this paper (abridged from a related project) introduces part of our joint project examining key questions around the effect of investment treaties and some of their provisions on direct investment flows. It focuses on the vexed question of whether offering treaty-based Investor-State Dispute Settlement (‘ISDS’) leads to significant increases in inbound foreign direct investment (FDI), in light of the persistent public debate about the merits of this procedural option for enforcing substantive commitments made by host states.
Overall, our econometric analysis generates complex implications for policy-makers reassessing the historical impact of ISDS in order to decide whether and how to include different forms of such procedural provisions in future investment treaties. Skeptics can point to counter-intuitive results indicating that weaker-form ISDS and/or substantive provisions seem to have stronger and more robust impact, especially since the turn of this century. Proponents can point to results indicating that there has still been a positive and significant impact from stronger provisions, including from full-scale ISDS provisions in promptly ratified treaties concluded between OECD and non-OECD countries.
Although our baseline model specification has generally dealt effectively with the endogeneity problem characteristic of this field, further variables impacting on FDI may be investigated (notably, double tax treaties) and data limitations remain (notably, FDI outflows from non-OECD countries and sectoral-level data). This econometric analysis can therefore be usefully complemented by the qualitative research component of our ongoing project.


In Telstra Corporation Ltd v State of Queensland [2016] FCA 1213 the Federal Court of Australia has found that the provisions of the Land Regulation 2009 (Qld), which had the effect of imposing higher rents on telecommunications carriers such as Telstra Corporation for state leases, were discriminatory and invalid.

The FCA found that the Telecommunications Act 1997 (Cth) Sch 3 cl 44 prohibited state and territory legislation from discriminating against carriers without an appropriate or permissible distinction between the carriers and other leaseholders.

23 October 2016

Charitable Trusts and Comparative Law

'The Development of the Public Benefit Requirement for Charitable Trusts in the Nineteenth Century' by Matthew Mills in (2016) 37(3) Journal of Legal History 269-302 comments
The first express judicial reliance on the public benefit requirement for charitable trusts to conclusively determine charitable validity seems to occur in 1862, although implied references to similar ideas are seen up to a century previously. With limited exceptions, the origin of the public benefit requirement has been under-examined. This article argues that a multi-factorial and contextual approach best explains its adoption in the nineteenth century. Three developments in nineteenth-century law and society encouraged judges to broaden charity law: (1) increasing religious pluralism, (2) increasing state education, and (3) regular income taxation. These changes, combined with the formalization of the doctrine of precedent, required both some limit on the scope of charity law and a new substantive justification for novel decisions on charitable validity. This article argues that judges and lawyers, whether intentionally or subconsciously, borrowed ideas of public benefit from closely related mortmain cases to develop the public benefit requirement.
In questioning conventional theorisation Mills argues
Although the public benefit requirement was only written into English statute in 2006, and the distinction between its first and second senses only formally judicially recognized in 2011, we see judges explicitly relying on the public benefit requirement alone to conclusively determine issues of charitable validity over 140 years earlier. As explained above, before then judges had chiefly asked whether charitable purposes were within the spirit and intendment of the Statute of Charitable Uses 1601 to determine charitable validity.
The first case in which public benefit was held expressly to be decisive of charitable validity seems to be in Rickard v Robson in 1862. There, using similar language to counsel, Sir John Romilly MR says ‘a gift merely for the purpose of keeping up a tomb or building which is of no public benefit, and only an individual advantage, is not a charitable use but a perpetuity’. Conversely, ‘if the gift is to keep up an institution for the benefit of the public, then it is clearly a charity’. Romilly MR thus holds that public benefit in the second sense is a necessary condition for a charitable trust as a trust yielding ‘only an individual advantage’ is not a charity; this arguably raises both cross-sectional public benefit and incidental private benefit. Romilly MR, however, did not attempt to distinguish between the two senses of public benefit; indeed, his judgment seems to conflate the two by suggesting that the trust was not charitable under the Statute of Charitable Uses 1601 (the first sense; conceptual) because it did not provide benefit to a sufficient section of the population (the second sense; cross-sectional).
Less than seven years later, in Beaumont v Oliveira the Court of Appeal in Chancery held that testamentary gifts to the Royal Geographic Society and the Royal Society ‘subsist for [educational] purposes and no others, therefore for public purposes – therefore, for the advancement of objects of general public utility – therefore for purposes analogous and similar to those mentioned in the statute of Elizabeth – therefore for charitable purposes’. Although this scatter-gun reasoning aims to cover all possible justifications for a finding of charity to support the court’s desired result, within it is a clear suggestion that if a charity’s purpose provides public benefit in the first sense (conceptual public benefit) then it will be a valid charitable trust. Therefore, Beaumont uses public benefit in the first sense being to justify the validity of a new type of charitable trust. It is interesting to observe that both senses of the public benefit requirement can arguably be traced to cases in the 1860s, although those cases did not distinguish the two.
The third explicit judicial reference is from the important 1871 case of Cocks v Manners. In discussing the validity of testamentary gifts to two orders of Roman Catholic nuns, Wickens VC stated that ‘religious purposes are charitable, but that can only be true as to religious services tending directly or indirectly towards the instruction or the edification of the public’. Because one of the donees was a set of cloistered nuns, Wickens VC accordingly used the lack of public benefit in the first sense (demonstrable public benefit), as the purpose did not ‘tend’ to meaningful benefit, to justify invalidating the purported religious charitable trust. This seems to be the first example of public benefit in the first sense being used to invalidate a purported charitable trust. Unfortunately, however, Wickens VC seems to conflate Garton’s two parts of public benefit in the first sense by suggesting that a religious trust for cloistered nuns was ‘neither within the letter nor the spirit’ of the Statute of Charitable Uses 1601 (conceptual) because such a trust would not tend to benefit to the public (demonstrable).
In 1875, the Privy Council adopted a similar approach. A testatrix had left a will directing, amongst other things, ‘that a house for performing religious ceremonies to my late husband and myself be erected’. The court held that ‘gifts for purposes useful and beneficial to the public … in a wide sense of the term, are called charitable uses’ (conceptual public benefit). Applying this principle, ‘the only point therefore requiring consideration can be, whether there is anything … which would render such [a disposition] beneficial or useful to the public’. The court concluded that the disposition ‘does not seem to fall within any definition of a charitable duty or use. The observance of it can lead to no public advantage, and can benefit or solace only the family itself’. Once more we see the court using a lack of public benefit in the second sense (incidental private benefit) to justify invalidating a purported religious charitable trust.
A thinly reasoned example arose in the House of Lords in 1882. In upholding the charitable status of oyster fishing rights held by the Saltash Corporation for the beneļ¬t of Saltash freemen, Earl Cairns stated that it was ‘a charitable, that is to say a public, trust or interest, for the benefit of the free inhabitants of ancient tenements’. Although no substantive discussion was given to why such an arrangement involves a charitable trust, the conclusion that the charitable trust was valid seems to be premised on the presence of (conceptual) public benefit in the first sense. This quotation was cited three times in 1888, including by Lindley LJ who, just five years later, gave his own version of the public benefit requirement. Earl Cairns also alluded to (cross-sectional) public benefit in the second sense to justify his conclusion when he stated that the trust would not be void for being ‘for the benefit of private individuals or a fluctuating body of private individuals’.
In 1885 we find our first clear use of the public benefit requirement in the second sense in upholding a charitable trust. Derby Railway Servants Orphanage applied to court to confirm that it was exempt from district rates under the Public Health Act 1875 on the basis that it occupied its property ‘exclusively for the purposes of public charity’. In holding that the orphanage was such a charity, and exempt from the rates, Manisty J assumed that its purposes were charitable in nature. The only question was thus ‘whether this charity is not for a large and extensive section of the community’ to qualify as a public charity under the Act. After citing Lord Hardwicke’s remarks from Pearce, extracted above, Manisty J concluded that ‘this charity is extensive. It extends to the whole of the railway servants all over England’. This short decision contains what seems to be the first use of the second sense of the (cross-sectional) public benefit requirement to justify upholding charitable status. Furthermore, Manisty J’s decision impliedly suggests a difference between being charitable in nature (conceptual public benefit) and being for the benefit of a sufficient section of the public (cross-sectional public benefit) – arguably implying a difference between two senses of public benefit.
In the late 1880s two further decisions at first instance held that a lack of public benefit in the second sense (incidental private benefit) justified invalidating a purported religious charitable trust. First, in 1886 North J cited and followed the above passages from Romilly MR’s judgment in Rickard to hold that a charitable trust to keep in repair a churchyard was ‘for the benefit of the parish at large’, but a trust to keep in repair a family tomb was ‘only ministering to [the testator’s] own private feeling or pride’. Second, in 1888 Chitty J applied Cocks v Manners to hold that a gift to a society who privately prayed for the suppression of animal cruelty was not charitable because ‘a mere improvement of the individual by private prayer … is not a purpose of public or general utility within the statute’.
In 1891, the House of Lords handed down the seminal decision in Pemsel, a case concerning the meaning of ‘charitable purpose’ within the Income Tax Act 1842. In holding that the technical English meaning should apply to that phrase, Lord Macnaghten famously stated:
‘Charity’ in its legal sense comprises four principal divisions: trusts for the relief of poverty; trusts for the advancement of education; trusts for the advancement of religion; and trusts for other purposes beneficial to the community, not falling under any of the preceding heads.
Although this section merely intended to ‘clear the ground’ for the rest of the judgment, Lord Macnaghten’s fourth category seems to turn public benefit in the first sense into a formal, abstract, ‘catch-all’ category of valid charitable trusts. Furthermore, the House of Lords appeared to use reasoning based on (conceptual) public benefit in the first sense to justify upholding the charitable status of a new type of charity.
In the 1893 decision of Re White, which concerned bequests to unstated ‘religious societies’, the Court of Appeal confirmed Cocks v Manners and that a lack of (demonstrable) public benefit in the first sense can invalidate a purported religious charitable trust. Lindley LJ, giving the judgment of the court, stated that ‘[a] society for the promotion of private prayer and devotion by its own members, and which has no wider scope, no public element, no purposes of general utility, would be a “religious” society, but not a “charitable” one’. On the facts, however, since no particular religious societies were named the court assumed the trust would be charitable.
Finally, in 1895, two relevant charitable trust cases were decided within three months which relied on different senses of the public benefit requirement. In the first, Chitty J, using similar language to his 1888 judgment, stated that ‘[t]o be a charity there must be some public purpose – something tending to the benefit of the community’. Applying this, Chitty J accepted that gifts to support anti-vivisection organizations could be charitable trusts since they were for the public benefit in the first sense (conceptual public benefit). Interestingly, Chitty J also stated that ‘whether, if [the organisations] achieved their object, the community would, in fact, be benefited is a question on which I think the Court is not required to express an opinion’. This suggests that at least Chitty J regarded positive proof of demonstrable public benefit as unnecessary for charitable validity; it is unclear whether he would have also stated a proven lack of such benefit is irrelevant. By 1895, we thus cannot be sure that the courts distinguished the different senses of the public benefit requirement.
In the second 1895 case,Re Nottage (No 1), both Kekewich J and the Court of Appeal held invalid a bequest to support the Yacht Racing Association and establish a yachting competition. Kekewich J stated that ‘in order to find that a gift is charitable, the Court must come to the conclusion that the benefit of the community is the direct, and not the remote, object of the gift’ but concluded that the purported charity did not do this. Kekewich J thus seems to be the first judge to rely on a refined version of the first sense of the public benefit requirement (demonstrable public benefit) to invalidate a purported charitable trust because the nature of the benefit to the community from the Yacht Racing Association was too indirect. On appeal, Lopes LJ confirmed that the purported charitable trust was invalid but stated that this was because its object was ‘the encouragement of a mere sport or game primarily calculated to amuse individuals apart from the community at large’. Lopes LJ seems to be relying on the second sense of the public benefit requirement (incidental private benefit) to justify the same conclusion as Kekewich J; that the bequest did not create a charitable trust. Re Nottage thus confirms that both senses of the public benefit requirement were used by judges to invalidate purported charitable trusts, and that judges still had difficulty agreeing on which senses were relevant in each case.
To summarize, between 1862 and 1895 we see the public benefit requirement explicitly used to determine charitable validity in twelve different judgments, five of which were at Court of Appeal level or higher. Importantly, in these first cases we see different senses of the public benefit requirement being distinguished. We see in the early cases judges using both of the two senses of the public benefit requirement as distinguished by the Upper Tribunal in the Independent Schools Council case (that the nature of the purpose benefits the community and that a sufficiently numerous cross-section are benefited). We also see those judges using all four of Garton’s elements of public benefit (conceptual public benefit, demonstrable public benefit, cross-sectional public benefit, and incidental private benefit). However, sadly these different senses or elements were never clearly distinguished. We also see the two senses of the public benefit from the Independent Schools Council case being used to justify both validating and invalidating a purported charitable trust; this is true for Garton’s demonstrable and cross-sectional public benefit, but not for conceptual public benefit (which was only used to validate) or incidental private benefit (which, unsurprisingly, was only used to invalidate). In short, proof of one aspect of public benefit could be used to justify the validation of a novel charitable trust (supporting, for example, anti-vivisection, the Royal Society or a town’s oyster fishing rights) and the lack of one aspect could be used to invalidate a prima facie valid charitable trust (e.g. a yachting cup or the maintenance of one’s own grave). The only thing missing was a case explicitly discussing more than one aspect of the public benefit requirement to settle their independent existence and precisely when they were required.
... by the late nineteenth century, following over 100 years of references to public benefit rhetoric by judges, barristers, and commentators, the public benefit requirement had become an established conceptual tool in cases concerning charitable validity. However, exactly why public benefit made the transition from rhetoric to requirement when it did is never made clear, and is not helped by the fact that references to public benefit were often very brief. But despite the primary sources failing to clearly explain this development, they do give a chronology to it. This section will therefore consider the other legal and social factors which explain the development of the public benefit requirement throughout the nineteenth century.
The major political, social, and economic changes of the nineteenth century led to fundamental changes in philanthropy. Indeed, from the late eighteenth-century philanthropy became ‘a social imperative’ in the upper and middle classes, and the number of new charities being set up per year increased nearly threefold. These changes put a greater number of charitable ‘experiments in benevolence’ before the courts. The litigation relating to these experiments provided the courts with the perfect opportunity for doctrinal development as they had to decide whether these new types of purported charitable gifts were and should be valid – and had to develop the law accordingly.
Mills goes on to discuss four specific factors as "key catalysts" for the development of the public benefit requirement:
  • 1) increased religious pluralism, 
  • 2) the birth of state education, 
  • 3) the birth of regular income taxation, and
  • 4) the formalization of the doctrine of precedent.
'The Comparative Distinctiveness of Equity' by Mark Leeming in (2016) 2(2) Canadian Journal of Comparative and Contemporary Law 403-420 comments 
Comparative law is difficult and controversial. One reason for the difficulty is the complexity of legal systems and the need for more than a merely superficial knowledge of the foreign legal system in order to profit from recourse to it. One way in which it is controversial is that it has been suggested that the use of comparative law conceals the reasons for decisions reached on other grounds. This paper maintains that equity is distinctive, and that one of the ways in which equity is different from other bodies of law is that there is greater scope for the development of equitable principle by reference to foreign jurisdictions. That difference is a product of equity’s distinctive history, underlying themes and approach to law-making. Those matters are illustrated by a series of recent examples drawn from appellate courts throughout the Commonwealth.


Breach rate of Apprehended Domestic Violence Orders in NSW [PDF], a new study by the NSW Bureau of Crime Statistics and Research (BOCSAR), demonstrates that the breach rate of Apprehended Domestic Violence Orders (ADVOs) is much lower than the 50% figure quoted in past media reports.

BOCSAR comments
Past efforts to estimate the breach rate of ADVOs have simply divided the number of ADVO breaches by the number of final ADVOs granted. This ignores the fact that one order may generate several breaches and different types of ADVOs can be breached.
There are three types of ADVOs that can be issued in NSW; Provisional Orders, Interim Court Orders and Final Orders.
Provisional orders are short-term ADVOs that can be granted in urgent situations without the matter having to be brought before the court.
An interim ADVO is a short-term order made by the court which can extend a provisional order or put protection(s) in place for the victim until a final ADVO application can be considered by the court.
A final ADVO can be made by the court after a defended hearing, if a defendant has been served with the ADVO documents but failed to appear in court or in cases where both parties consent to the conditions specified in the order.
BOCSAR tracked all ADVOs granted between 1 July 2013 and 30 June 2014 (inclusive), taking care not to count multiple breaches of the same order as if they were breaches of different orders.
BOCSAR found that the breach rate was (a) five per cent for provisional orders (b) nine per cent for interim orders and (c) 20 per cent for final orders (which are much longer in duration).
Most breaches involved only one incident per order (88% of provisional order breaches, 73% of interim order breaches and 64% of final order breaches).
Of all ADVOs which were breached, 34% were breached within one month of being granted, 23% within 1-3 months and 18% within 3-6 months. Male, Indigenous and younger offenders breached their final order sooner than other defendants.
The authors of the report note
NSW police attend around 60,000 incidents of assault (NSW Bureau of Crime Statistics and Research [BOCSAR], 2016a) each year. Around half of these assaults are domestic violence related. Despite significant declines across many offence categories over the last 5 years (including non-domestic violence related assault), domestic violence rates in NSW remain largely unchanged (BOCSAR, 2016a).
Apprehended Domestic Violence Orders (ADVOs) are one important tool available to police and criminal justice authorities to help prevent further violence occurring in domestic settings. ADVOs are a civil order that can be granted by the Local Court in accordance with Part 4 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). If granted, the defendant named on the order must comply with three mandatory conditions; (1) not to assault, harass or threaten the protected person, (2) not to intimidate the protected person and (3) not to stalk the protected person (see Part 8 Section 36). The court may also specify any other conditions that they deem necessary to protect the victim(s). If a defendant breaches any of the conditions specified in the order then he/she can be arrested and charged with a criminal offence (attracting penalties of up to $5,500 and/or imprisonment for up to two years). ...
In 2015, NSW Local Courts granted 27,699 final ADVOs for the protection of victims and their families (BOCSAR, 2016b); nearly 3,000 more than were granted in 2011. Given the sheer volume of orders issued across NSW each year, it is important to continually evaluate the extent to which ADVOs can serve to protect victims from further violence. Previous work by BOCSAR has suggested that ADVOs can be effective in reducing the frequency of violence in domestic relationships even if they fail to eliminate the violence in its entirety. Trimboli and Bonney (1997) undertook a study in which female victims of domestic violence were interviewed before and after they had obtained an ADVO and asked about their experience of a set of proscribed behaviours. Overall, these women reported significant reductions in stalking, threats of physical assaults, verbal abuse, nuisance phone calls and other forms of intimidation/harassment in the 4 weeks immediately after the ADVO was served on the defendant. The positive changes were even apparent amongst victims who maintained contact with the defendant and were still evident 6 months after the order was issued. More recent research confirmed these results (Trimboli, 2014) and further indicated that in the absence of specialist legal advice, ADVOs can still serve to improve the safety of most victims. xxxxx A number of recent intimate partner homicides perpetrated by males who were the subject of ADVOs has once again placed ADVOs under scrutiny and led some commentators to question their efficacy in protecting domestic violence victims. In the aftermath of these events media reports suggested that nearly half of all ADVOs issued in NSW are breached and called for major system reforms to be undertaken, including the strengthening of penalties for breaches of these orders (see ‘Call for war on domestic violence as half of all AVOs fail’ The Daily Telegraph, Jan. 18 2015). The breach rate reported in this article was estimated by dividing the total number of ADVO breaches recorded by police during a 12-month period (11,788) by the total number of final ADVOs issued in the same year (26,491). However, this calculation failed to take into account the following factors; (1) a single ADVO can be breached by the same defendant on multiple occasions, (2) breaches can relate to orders other than just final ADVOs and (3) the same defendant could breach multiple different order types. The current brief presents the results from a detailed analysis of ADVOs issued in NSW and ADVO breaches recorded by NSW Police in order to more accurately quantify the proportion of all ADVOs that result in a breach on one or more occasions.