08 June 2017


'Data Breach, Privacy, and Cyber Insurance' by Shauhin Talesh in (2017) Law and Social Inquiry comments 
While data theft and cyber risk are major threats facing organizations, existing research suggests that most organizations do not have sufficient protection to prevent data breaches, deal with notification responsibilities, and comply with privacy laws. This article explores how insurance companies play a critical, yet unrecognized, role in assisting organizations in complying with privacy laws and dealing with cyber theft. My analysis draws from and contributes to two literatures on organizational compliance: new institutional organizational sociology studies of how organizations respond to legal regulation and sociolegal insurance scholars’ research on how institutions govern through risk. Through participant observation at conferences, interviews, and content analysis of insurer manuals and risk management services, my study highlights how insurers act as compliance managers for organizations dealing with cyber security threats. Well beyond pooling and transferring risk, insurance companies offer cyber insurance and unique risk management services that influence the ways organizations comply with privacy laws.
Talesh's fascinating article concludes
This study elaborates the literature on the relationship between organizations and law by blending new institutional organizational sociology studies of how organizations respond to legal regulation and sociolegal insurance scholars’ studies of how institutions govern through risk. In particular, my study bridges these two theoretical frameworks by revealing how in the context of cyber insurance, insurers go well beyond pooling and spreading risk and act as compliance managers for organizations dealing with cyber security threats. Although prior new institutional studies of law and organizations emphasize the way that managerial values influence the nature of law and compliance among organizations, governing through risk provides an alternative framework by showing how risk management services and risk-based logics that are institutionalized by the insurance field influence what organizations are told privacy laws mean and how they are told to respond to data breach. Consistent with prior studies that blend governing through risk and the managerialization of law, concerns over risk and the need for adequate policies and procedures drive the process at every stage. Thus, risk and managerialized values work in tandem.
My multisite, multimethod approach also enhances prior studies of insurance as regulation by revealing how the insurance field governs through risk and uses considerations of risk and insurance services to influence organizational strategy and decision making. Whereas early work celebrates insurance as regulation and focuses on the forms and functions of insurance, more recent studies of directors and officers, employment practices liability, and cyber insurance focus on the conditions 684 under which insurance shapes behavior in positive and negative ways. Given the range of findings from these studies, scholars need to think of the benefits of insurance as regulation on a continuum. Insurance as regulation does not always work, nor does it always fail. Although more research is clearly needed, it appears there are a couple of distinctions between EPLI, directors and officers insurance, and cyber insurance. For example, prior work in the directors and officers context shows how the insurance industry has the ability to engage in loss prevention behavior but does not try to engage in such behavior (Baker and Griffith 2010). In the cyber context, the insurance industry does try to engage in loss pre vention and does so in a manner that is focused on managing and averting the risks associated with data breach. One likely difference is that in the directors and officers context, directors and officers are less eager to be told how to engage in risk-averse behavior. Policyholders in the cyber context, however, are interested in the insurance defense and indemnity coverage, but also the accompanying risk management services that can prevent, detect, and respond to a data breach event. The risk management services that accompany cyber insurance also fill a competency or knowledge gap for the organization. Organizations are willing to use risk management tools that deal with the latest cyber threats that they lack internal tools to defend against. Conversely, directors and officers believe they possess the requisite knowledge and experience to manage a corporation responsibly and are less eager to receive insurance risk management recommendations.
Moreover, whereas prior research shows that EPLI insurers spend considerable time trying to shape the meaning of law for employers tasked with dealing with discrimination laws (Talesh 2015a), here, cyber insurers spend far less time mediating 708 law’s meaning and far more time trying to enhance an organization’s ability to detect and respond when faced with a data breach. Thus, unlike in the EPLI con text, the insurance risk management tools are less about simply avoiding being sued and more about developing processes to prevent or limit any data breach problem from occurring. Therefore, the conditions under which insurance as regulation works depends on a variety of factors. Taken collectively, however, research on directors and officers insurance, EPLI, and the cyber liability insurance context reflect a significant shift in the manner in which insurers actively shape the nature of compliance.
From a policy standpoint, this study raises important questions about the role of insurance in regulating cyber security theft. Although prior research highlights how insurance acts as a form of social control on society (Baker and Simon 2002; Baker and Griffith 2010; Ben-Shahar and Logue 2012; Abraham 2013), important questions remain concerning whether insurers should regulate organizational behavior and if they do regulate behavior, how that authority is exercised. Similar to human resource officials, in-house counsel, and managers (Edelman, Erlanger, and Lande 1993; Edelman, Fuller, and Mara-Drita 2001), my data suggest that the insurance field’s involvement as an intermediary may be mix of benefits and disadvantages.
On the one hand, to the extent organizations remain underprepared for cyber risks and undercompliant with privacy laws, insurance industry intervention in this area is very valuable. The risk management tools offered encourage and, to some extent, force stronger detection and security protocols in organizations and nudge organizations toward greater safety and security. In turn, this makes consumer information less likely to fall into the hands of wrongdoers. Cyber insurance and risk management services such as the audits, hotlines, and online portals of handbook materials provide substantive guidance on privacy law and on organizations’ responsibilities. To the extent that the information provided to organizations is accurate in these settings, these services could be compatible with compliance and could even induce greater compliance. Moreover, the postbreach services allow organizations to turn to one place and address all their concerns. Unlike other financial institutions that also offer risk management services related to data breach, insurance companies are able to package these services with insurance litigation defense and indemnification in the event of an actual breach.
On the other hand, overreliance on cyber risk management systems may allow organizations to avoid more active engagement with the design, content, enforcement, and maintenance of their policies. By encouraging organizations to use insurer-sponsored forensics, information technology, public relations units, and hot lines, the insurance field shifts or decouples responsibility for hard normative judgments to others (such as insurance companies) operating outside the organization (cf. Bisom-Rapp 1996, 1999; Edelman, Fuller, and Mara-Drita 2001). Insurance companies have an obvious financial incentive in seeing more customers purchase cyber insurance and the accompanying risk management services. Insurance industry services that diminish an organization’s individual responsibility to design its 752 cyber security policies and procedures may diminish organizational responsibility for making moral, ethical, and legal choices involved with compliance (cf. Baker and Simon 2002). To the extent organizations can simply delegate their data breach events to the insurers and accompanying risk management vendors, cyber insurers may enhance the possibility that organizations are lethargic in taking ownership of compliance policies and procedures and, consequently, preventing privacy laws from making a greater impact.
Obviously, future research on whether cyber insurance leads to less data theft would help to gauge the value of these insurer-sponsored risk management services. Assuming insurer risk management services reduce the likelihood that data breach events will occur, my data suggest, at least preliminarily, that there is a net benefit. Existing research suggests that organizations are currently unable to keep up with cyber threats. Thus, despite insurers’ financial incentives, insurer-sponsored help is greatly appreciated by organizations and the consumers whose information is potentially exposed.
At a minimum, this study highlights the processes and mechanisms through which insurers act as private risk regulators (Ben-Shahar and Logue 2012). Regulation over privacy and cyber security issues in the United States remains fragmented and incomplete. The insurance industry is stepping in and trying to offer organizations a pathway for dealing with cyber threats and the abundance of privacy laws. Law is typically thought of as top down, coming from public legal institutions such as courts, legislators, and regulatory institutions. However, consistent with new legal realist and the law and society studies, how organizations implement laws and comply with various rules is shaped by intermediary institutions such as insurance companies.
Cyber risk management services do not just reduce risk; they actively construct the meaning of compliance. As shown in the employment and consumer protection contexts (Edelman, Uggen, and Erlanger 1999; Talesh 2009, 2012), these responses are becoming institutionalized and gaining legitimacy. In particular, public legal institutions are deferring to and encouraging organizations to purchase cyber security insurance.
The Department of Homeland Security’s National Protection and Programs Directorate recently convened working sessions and roundtables with the insurance industry to discuss ways to make public and private institutions more cyber secure. While acknowledging that the cyber insurance market is relatively nascent as compared to other lines of insurance, the Department of Homeland Security’s report concluded that cyber insurance is vital: “A robust cybersecurity insurance market could help reduce the number of successful cyberattacks by: (1) promoting the adoption of preventative measures in return for more coverage; and (2) encouraging the implementation of best practices by basing premiums on an insured’s level of self-protection” (Penensky, Traub, and Leff 2015). Moreover, the report devoted extensive attention toward improving risk management within organizations, the very kinds of services cyber insurance companies are offering (Department of Homeland Security 2014). Thus, it appears that insurance institutions are shaping the content and meaning of cyber security compliance.
Moving forward, this article suggests that there is great potential for constructive linkages between studies on risk management and law and organizations. More research on how risk-based logics are mobilized by intermediaries and mediate the way organizations deal with cyber security threats and comply with privacy laws would help strengthen organizational theory and reveal how, in action, the meaning of compliance is often constructed by legal intermediaries

07 June 2017

Victorian Adoption Law Reform

The Victorian Law Reform Commission's Review of the Adoption Act 1984 report tabled in state parliament provides recommendations to modernise the law of adoption in Victoria and ensure consistency with other laws. The primary recommendation is that the current Adoption Act should be repealed and replaced.

The report also recommends that
  •  Adopted people should be able to get integrated birth certificates that show the names, not just of their adoptive parents, but of their natural parents and adoptive parents. 
  • The same eligibility criteria should apply to single people applying to adopt as to couples. 
  • An independent children’s lawyer should be appointed for every child in the adoption process. 
  • Every adoption should have a court-approved adoption plan with details about contact arrangements, information exchange and other aspects of the adoption. 
  • It should be easier for children and relatives to obtain information, and a new ‘access to information’ scheme should provide this.
  • There should be more consistency across Victoria and between agencies in the treatment of applicants for adoption. 
  • Religious exemptions under the Equal Opportunity Act should not apply to publicly-funded adoption agencies. 
  • There should be a statewide register of approved applicants to adopt a child. 
  • People involved in adoptions should have access to more support through their lives, such as counselling, mediation and financial grants. 
The Commission states
The terms of reference asked the Commission to make recommendations to modernise the Adoption Act 1984 (Vic) and Adoption Regulations 2008 (Vic).
The Commission was asked to make recommendations to ensure that: the best interests and rights of the child are the foremost considerations in adoption law they reflect community attitudes and contemporary law better the law upholds the principles of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) and the United Nations Convention on the Rights of the Child (CRC).
The Commission was required not to consider: intercountry adoption programs or commercial surrogacy adoption by same-sex couples contact statements.
At the time of its introduction, the Adoption Act represented a significant change in Victorian adoption policy, as it brought in open adoption. However, it is now over 30 years old, and in many respects out of step with modern understandings of the needs of children and contemporary law in relation to family and community. The language and structure of the Adoption Act are not in line with modern drafting, and amendments over time have made it complex and difficult to navigate.
The Commission published a consultation paper in August 2016, which set out its analysis of the law and issues arising from the terms of reference. The consultation paper posed a range of questions which guided the consultation process. Consultations were held in Melbourne and across regional Victoria. The Commission convened 27 meetings with individuals and groups and nine roundtable discussions. Sixty-one written submissions were received. ...
The Commission acknowledges the harm caused by past forced adoptions. It has been mindful of the need to ensure that the mistakes of the past are never repeated.
Key themes emerged during the review and informed the Commission’s analysis and recommendations:
The effects of adoption are lifelong, and affect an adopted person’s extended, past and future families.
The loss of family connection at the heart of adoption can cause ongoing psychological and emotional harm even where the adoption is ‘successful’ and happy.
A strong culture of confidentiality and sometimes secrecy remains around adoption. This is inconsistent with the principle of openness and not in the best interests of the adopted person.
While the child is the central figure in an adoption, current adoption law does not provide well for children’s views to be considered.
All parties to an adoption need support to manage its effects at key points in their lives, before and after the adoption. As the state arranges adoptions, it is appropriate that it assume some responsibility for the needs and rights of these children.
Finally, the processes and the rules governing adoption in Victoria are hard to understand, because they are not clearly articulated or readily available to the public. The Commission makes a range of recommendations to promote clarity and transparency in adoption practice.
A modern Adoption Act
Many users of the Adoption Act are not lawyers but people who want to access adoption information or find out how to adopt. Amendments to the Act have reduced its readability and made it hard to navigate. The current Act should be repealed and replaced by a new Adoption Act. This will enable the use of modern drafting practices to ensure it is clear and accessible to all.
The Commission recommends that the new Act include objects to clearly set out its overall aims. The Act should also include general principles to guide decision making about adoption and the provision of adoption services. The principles should apply to the Court, the Secretary, principal officers of approved agencies as well as any other persons and bodies involved in the administration of the Act.
Participation of the child
While the child is the central figure in an adoption, current adoption law does not provide well for their views to be considered at key stages in the adoption process. The Commission makes recommendations that aim to increase children’s participation in decision making about their adoptions, including about placement, contact with their family of origin, and whether an adoption order should be made. Contact and adoption plans
Preservation of sibling relationships
The Commission makes recommendations aimed at preserving sibling relationships after an adoption. This includes requirements that all reasonable steps be taken to place siblings together and that if siblings are separated through adoption, arrangements for contact be made.
Adoption plans
The Commission makes recommendations to help children to continue existing relationships with people of significance to them after an adoption. These recommendations aim to reduce trauma associated with adoption and assist with the development of a child’s identity.
The Commission recommends that a written adoption plan should be made for each child who is to be placed for adoption. Adoption plans providing for information exchange and contact would replace the current limited ability of the Court to place conditions on an adoption order.
An adoption plan should be negotiated before a child is placed for an adoption. It may provide for contact with a broad range of people. In addition to detail about contact with natural parents it should always include detail about contact with siblings and grandparents.
All adoption plans should be approved and registered by the Court, becoming part of the adoption order and enforceable as an order of the Court.
The best interests of the child
In accordance with the paramount principle for adoption, the Commission recommends that the best interests of the child concerned, both in childhood and in later life, must be the foremost consideration.
The Adoption Act does not provide guidance about the matters that should be considered in determining the best interests of the child. Submissions and consultations strongly supported the introduction of ‘best interests’ guidance.
The Commission recommends principles to guide decisions and actions in adoption to ensure that they are in the best interests of the child.
Best interests guidance should apply to all decision makers under the Adoption Act, including the Court, the Secretary, the principal officers of approved agencies and any other people and bodies involved in the administration of the Act.
Changing the adopted child’s name
Identity and openness in adoption were key concerns of people who consulted with the Commission. A child’s name is a key part of their identity and may provide important links to their culture. It may be the one thing a natural parent can give their child.
The Commission makes recommendations aimed at preserving a child’s identity by limiting the situations in which a child’s name may be changed.
Birth certificates of adopted people
Adopted children are issued with new birth certificates which reflect their new, post-adoption identity. The new birth certificate looks like any other person’s birth certificate, with the adoptive parents named as the child’s parents. For many adopted people their amended birth certificate represents the erasure of their past, a re-writing of their identity and a falsehood which must be corrected.
The Senate Community Affairs References Committee report, Inquiry into Commonwealth Contribution to Former Forced Adoption Policies and Practices, recommended that: all jurisdictions adopt integrated birth certificates, that these be issued to eligible people upon request, and that they be legal proof of identity of equal status to other birth certificates.
An integrated birth certificate shows details of a child’s birth and adoption, including both their adoptive and natural parents.
A fundamental question for the Commission was: ‘What is the purpose of a birth certificate?’ A birth certificate does not have one single purpose. A common theme in submissions and consultations was that a birth certificate should be a true record of a person’s birth and, therefore, show a child’s biological origins. 
While acknowledging its symbolic value, the Commission concluded that the primary purpose of a birth certificate is legal. It establishes a person’s legal identity and shows who a child’s legal parents are. Across Australia, people named on birth certificates are presumed to be a child’s parents.
An adopted person’s original birth certificate cannot be maintained for legal use because it does not show a person’s legal identity or who the legal parents are.
The Commission has recommended that, subject to security and cost implications, optional integrated birth certificates be introduced in Victoria, with equal legal status to regular birth certificates.
Adoption of Aboriginal and Torres Strait Islander children
The Commission focused on three key ideas emphasised by Aboriginal and Torres Strait Islander groups and individuals:
Statutory adoption is generally not a culturally appropriate option for Aboriginal and Torres Strait Islander children.
Any adoption must ensure that cultural connections for Aboriginal and Torres Strait Islander children are not merely preserved but also promoted and developed.
Aboriginal and Torres Strait Islander communities are the experts in what is best for their children. T
he law needs to ensure that Aboriginal and Torres Strait Islander communities are involved early and consistently in decisions about their children.
The Commission concludes that there should be special requirements and considerations for adoption of Aboriginal and Torres Strait Islander children. Recommendations include:
a positive duty on the Secretary of DHHS or principal officer to make inquiries about whether a child whose parents are considering adoption is an Aboriginal or Torres Strait Islander child.
a requirement that more culturally appropriate options be used for the care of children who cannot be cared for by their parents. Statutory adoption is a last resort for providing for the care of Aboriginal and Torres Strait Islander children.
a requirement that an Aboriginal agency be involved in all aspects of the adoption process for Aboriginal or Torres Strait Islander children.
a revised Aboriginal and Torres Strait Islander Child Placement Principle and decision-making principles that align with those in the Children, Youth and Families Act 2005 (Vic) (the CYF Act).
a requirement that a cultural support plan be developed for any Aboriginal or Torres Strait Islander child who is placed for adoption or for whom an adoption order is made.
Consent to an adoption is required from the child’s mother and father. This requirement protects the rights of the natural parents. It also protects a child’s right to know and be cared for by their parents. In the past, forced adoptions occurred without effective consent under then existing adoption legislation, despite those laws containing consent provisions.
The Commission makes recommendations to strengthen the consent process. These include new requirements for the independence, qualifications, and experience of counsellors involved in adoption.
The Commission recommends extending the timeframe for a parent to revoke consent to a child’s adoption. The current timeframe does not provide a parent with adequate time to come to terms with the decision and consider alternatives. The recommendation balances the need to ensure that consent is informed and freely given with a child’s need for timely decision making about their permanent placement.
Because of the importance to the child of knowing both their natural parents, the Commission proposes the introduction of a duty on the Secretary of DHHS to take reasonable steps to identify the father.
Dispensing with consent
The Commission recommends changes to the grounds for the Court to dispense with consent.
Consent to an adoption can currently be dispensed with on the basis of what may be summarised as ‘child protection’ grounds. These considerations are not appropriate in the adoption framework, as adoption is premised on consent. The child protection system is established to make decisions in relation to children at risk of harm.
The Commission recommends that the grounds for dispensing with consent be narrowed to exclude its use for child protection matters.
In some limited circumstances dispensing with consent should be allowed where it is in the best interests of the child. The Commission makes recommendations about what the grounds for dispensing with consent should be.
Discrimination and equal opportunity in adoption
Adoption laws, policies and practices are discriminatory, in the ordinary sense of the word. Only certain people are eligible to adopt a child, based on their relationship status. Assessment of their suitability to adopt is based on their age, physical and mental health, financial circumstances and other personal characteristics. Selection of adoptive families is based on the natural parents’ wishes about applicants’ religion, race and ethnic background.
The law can place reasonable limits on Charter rights. Exceptions to the Equal Opportunity Act 2010 (Vic) permit discrimination where it is authorised by another law or necessary to comply with another law.
Victoria’s adoption laws, policies and practices are intended to protect the best interests of children by ensuring that they are adopted by the people who are best able to meet their needs. The right of a child to a safe, stable, family environment, in which they maintain their connection with their family of origin, may in some circumstances outweigh the rights of people who want to adopt.
Eligibility to adopt
The Commission makes recommendations which widen the eligibility criteria in the Adoption Act. While every eligible person should be entitled to apply to the Secretary or principal officer to adopt, an application should not create an entitlement to be assessed. The Commission recommends that the Adoption Act require the Secretary to manage applications for approval to adopt, anticipating the number of children able to be adopted and their needs.
To be eligible to adopt through the local adoption program, couples must have been married, in a registered domestic relationship or in a domestic relationship for no less than two years. Since 1 September 2016 this includes same-sex couples.
Couples in a domestic relationship must also be ‘living together’. This is not required of couples who are married or in a registered domestic relationship. The cohabitation requirement discriminates against certain couples based on marital status and is inconsistent with Charter rights. Further, there is no evidence that the cohabitation requirement demonstrates the stability of a relationship. The assessment criteria under the Adoption Act and Regulations, together with the assessment process, provide a robust method of ensuring that only suitable people in a stable relationship are approved to adopt. The Commission recommends that the eligibility criteria under the Adoption Act should not require or imply that couples in a domestic relationship live together.
Adoption by a single person
Single people may only adopt a child where ‘special circumstances exist in relation to the child which make it desirable so to do’. The Adoption Act does not define ‘special circumstances’. In practice, it has been interpreted as meaning they may adopt children with ‘special needs’.
The law in Victoria already recognises that single people are suitable parents who can provide children with a safe, stable and secure environment. Single people are eligible to care for a child under CYF Act orders and undertake IVF on their own.
The Commission considers differentiating between couples and single people on the basis of marital status is inconsistent with the Charter and the right to recognition and equality before the law. Marital status is not relevant to the safety, wellbeing and interests of a child to be adopted.
The Commission recommends that the Adoption Act apply the same eligibility criteria to single applicants as to couples.
Known-child adoption
The Adoption Act recognises two types of known-child adoption in Victoria: adoption by a step-parent and adoption by a relative of a child. ‘Exceptional circumstances’ must exist in relation to the child which make the adoption desirable. Additionally, parenting orders under the Family Law Act 1975 (Cth) are preferred to adoption orders as they do not sever the legal relationship between the child and their parents, and expire when the child turns 18. There is also concern that when a relative adopts a child, it can distort family relationships. The Commission supports the preference for Family Law Act orders over adoption orders in relation to adoption by step-parents and relatives.
Adoption agencies told the Commission that they do not prioritise adoption applications by step-parents, due to funding constraints. Such applications are considered low-risk, in that they seek to formalise an existing relationship which will continue whether or not the child is adopted.
The Commission considers it is reasonable to expect a step-parent to contribute to the administrative cost of their application if they wish to adopt the child before the child turns 18. It makes a recommendation to this effect. At 18 years old a person can elect to be adopted by a step-parent or relative without the involvement of the Secretary or principal officer.
Adoption from care
In Victoria, permanent care orders under the CYF Act provide permanency for children in Victoria’s child protection system. A permanent care order transfers parental responsibility for the child from the natural parents to the permanent care parents while maintaining the legal parental relationship. The Adoption Act does not provide a way for a person with responsibility for a child under a permanent care order to adopt that child.
55The Commission recommends the creation of a pathway to adoption from permanent care in strictly limited circumstances.
The consent of a child’s natural parents should remain the fundamental requirement. ‘Child protection’ grounds for dispensing with consent should not be available in granting an order for adoption from permanent care.
Eligibility should be limited to people applying to adopt a child who has been placed with the applicant under a permanent care order for at least two years. The two-year requirement ensures that children will not be quickly moved from permanent care to adoption.
As a form of known-child adoption, it is appropriate that ‘exceptional circumstances’ be demonstrated which make the adoption desirable. Lack of contact between a child and their natural parents should not of itself satisfy this requirement. The court should also be satisfied that an adoption order would make better provision for the child’s welfare and best interests than continuation of the permanent care order, or an order under the Family Law Act.
As permanent care orders are under the Children’s Court jurisdiction, discharge of a permanent care order is a decision of that Court. Leave from Children’s Court should be granted before an application for an adoption order is made to the County Court.
Assessment of applicants for adoption
The Adoption Act requires that all applicants be assessed as suitable to adopt against suitability criteria set out in the Adoption Regulations.
Suitability criteria
The criteria assess the ‘suitability’ of many aspects of an applicant’s background, personality, capacities and circumstances, including emotional, physical and mental health, age and maturity, skills and life experience and financial circumstances. The Commission concludes that on the whole, the suitability criteria establish a reasonable framework for assessing a person’s ability to bring up an adopted child, through to adulthood, in a positive, stable, family environment.
The Commission considers that one criterion encapsulates the overall purpose of the assessment: the applicants’ ‘capacity to provide a stable, secure and beneficial emotional and physical environment during a child’s upbringing until the child reaches social and emotional independence’. It proposes that this criterion be elevated to become the overarching purpose of the suitability assessment process.
Additional requirements, including requirements relating to citizenship, fertility treatment and full-time care of a child, which are currently set out in policy, should be included in the Adoption Act or Adoption Regulations.
Assessment process
The Commission had difficulty determining the full extent of the requirements of the assessment process. The Commission heard complaints from adoptive parents and applicants about inconsistent practices across agencies relating to information, the amount of time taken, and assessment practices.
Any process which affects a person’s eligibility to adopt should be included in the Adoption Act or Adoption Regulations. All applicants should receive the same information and training. Decision makers should take a consistent approach to assessments. Timeframes should be as consistent as possible.
DHHS should take steps to improve consistency across agencies. Information about the assessment steps should be provided to applicants and available to anyone who expresses an interest in adoption.
To increase clarity about the factors that decision makers may take into account, assessment guidelines should be developed. The guidelines should be easy to understand and used by all approved agencies. They should be published on the DHHS website and provided to any applicant who does not have access to the website.
As well as improving transparency, these measures would assist applicants’ understanding and expectations of the assessment process, promote a transparent and consistent approach to decision making and increase the accountability of agencies.
Parents and applicants told the Commission they felt unable to give feedback about the process, including concerns about delays and lack of information, because they were worried it would affect their chances of being selected to adopt a child. The Commission recommends that the Secretary establish a mechanism that enables applicants to give anonymous feedback about their experience of the assessment process. This would inform improvements to adoption services in Victoria.
Selection of adoptive parents
The matters parents may express wishes about
After assessment, approved applicants are added to a register of potential adoptive parents. To adopt a child, they must be selected for a child who needs a family. This process is called ‘linking’. When making this decision, the Secretary or principal officer must consider the parents’ wishes about the ‘religion, race or ethnic background’ of the adoptive parents.
On its face, the linking process infringes the principle of non-discrimination contained in the Charter and the Equal Opportunity Act.
While there is a tension between parents’ ability to express wishes about the adoptive family and protecting applicants from discrimination, the overriding principle in adoption is that all decisions must be in the child’s best interests.
The Equal Opportunity Act prohibits discrimination against a person based on particular attributes unless it is authorised by another law or necessary to comply with another law. Currently, the Adoption Act authorises parents to state preferences about applicants’ religion, race and ethnic background.
The Commission considers parents should be able to participate in decision making about who adopts their children, because it increases the possibility that they will have ongoing contact with their child and the adoptive family.
The Commission recommends that the Adoption Act permit parents to express wishes about the full range of suitability criteria set out in the Adoption Regulations, replacing the factors currently specified in section 15(1)(b) of the Adoption Act. This would ensure parents’ wishes focus on factors already established as relevant to applicants’ ability to care and provide for a child and increase the chances of a successful open adoption.
However, parents’ wishes should not decide the outcome. A wish that is contrary to a child’s best interests should not be followed.
To ensure the Adoption Act and Equal Opportunity Act operate harmoniously, the Commission also recommends that the Equal Opportunity Act should not apply to the assessment of applicants reasonably based on the suitability criteria and decisions which give effect to parents’ wishes in selecting parents in a child’s best interests.
Adoption services—conflict of interest
The Adoption Act empowers the Secretary to approve agencies to ‘make arrangements or enter into negotiations’ towards an adoption. In each adoption, all services—options counselling, assessment of applicants, linking, placement, guardianship, monitoring of the placement and legalisation—may be managed by the same agency.
This situation creates a risk of actual or perceived conflict of interest for the social workers and counsellors involved in the adoption, where they may have conflicting duties to two or more clients or where a personal interest conflicts with a duty to a client. A second possible issue is that agencies placing a child may consider only applicants in their own region, whom they have assessed and approved, rather than considering the full range of approved applicants on the statewide register. This limits the range of families considered for a child, which is contrary to the child’s best interests.
The Commission recommends that the Secretary be empowered to approve agencies to carry out discrete adoption services to enable them to be carried out by separate service providers. This would reduce the risk of conflict of interest. It also recommends that the Adoption Act establish a central, statewide register of approved applicants to be consulted when selecting prospective adoptive parents. This approach to linking would serve the best interests of children by maximising the number of applicants that can be considered to adopt a child.
Adoption services and the Equal Opportunity Act
Adoption and permanent care teams provide services in geographical service regions of Victoria. CatholicCare provides a statewide adoption service. People who wish to apply to adopt are assigned to the adoption service in their local region. Applicants may not ‘shop’ between regional adoption services, but they may choose between their local service and the statewide service provided by CatholicCare.
LGBTI couples have been eligible to adopt since 1 September 2016 and may apply to their regional office for service. CatholicCare’s information sheet for prospective adoptive parents states that it is able to assess and accredit LGBTI couples but not select them to adopt or proceed to legalisation through the court. LGBTI couples are referred to another approved adoption agency. While heterosexual couples may adopt through either their regional adoption service or the statewide service, this option is not available to LGBTI couples.
The Equal Opportunity Act prohibits discrimination on the basis of attributes including gender identity, marital status, sex and sexual orientation. However, the Act contains exceptions and exemptions that permit discrimination. Section 82(2) of the Equal Opportunity Act permits a religious body to act in discriminatory ways if the action conforms with the doctrines, beliefs or principles of the religion. Section 84 permits a person to discriminate against another person where the discrimination is reasonably necessary to comply with the doctrines, beliefs or principles of their religion. CatholicCare is relying upon an exception to refuse to provide adoption services to LGBTI applicants.
The Commission considers that a ‘blanket’ religious exception should not apply to the provision of adoption services under the Adoption Act. Discrimination should only be permissible to the extent that the Adoption Act provides, upon grounds that are in the best interests of children.
The Commission recommends that the religious exceptions under the Equal Opportunity Act not apply to approved adoption agencies providing publicly funded adoption services under the Adoption Act. This recommendation is consistent with the secular nature of adoption.
The role of the court in the adoption process
The vast majority of adoption proceedings are heard in the County Court. Currently, the court’s opportunity for engagement with the adoption process is limited. The Commission makes recommendations to facilitate a more meaningful role for the court throughout the adoption process.
Dispensing with consent
The court hears applications for an adoption order at the end of a long adoption process, when the child has been with the prospective adoptive family for around 12 months. Applications to dispense with consent tend to be determined late in the adoption process, often days prior or on the same day as the court makes the adoption order. This timing inevitably shifts the balance in favour of dispensing with consent to enable the making of an adoption order, to support the child’s need for stability.
Because of its potentially drastic consequences, the Commission recommends the court hold a preliminary hearing to determine any application to dispense with consent, regardless of whether the application is contested. This should occur before the placement of a child with prospective adoptive parents. Parties to proceedings 89Currently, the court has a broad discretion to permit anyone it thinks fit to be a party to an adoption hearing. The Commission recommends that the Adoption Act define the parties to adoption hearings at each stage of the process.
In all adoption hearings, parties should include the child and the child’s natural parents. This grants them the right to be heard by the court in decisions that affect them. However, they should not be obliged to participate.
There is a presumption of confidentiality in adoption proceedings. This is not consistent with the principles of open adoption. It limits the transparency of the court process and the opportunity to understand the court’s thinking. The Commission recommends that proceedings under the Adoption Act should be heard in open court.
The Adoption Act should require that judicial reasons be publicly available, unless an order has been made under section 17 of the Open Courts Act 2013 (Vic), and should be anonymised to ensure confidentiality of any matters likely to enable the child, the adoptive parents, or natural parents, to be identified.
Publication of judicial reasons will provide greater understanding of adoption practice and jurisprudence, and facilitate and support much-needed open adoption research.
Representation of the child
The Commission considers that an independent children’s lawyer should be appointed for all children in the adoption process. This should occur as early as possible, including during the development of an adoption plan, at a preliminary hearing, at a final hearing and at any subsequent hearings such as variation or revocation of the terms of an adoption plan.
The two key models used for the legal representation of a child in Australia are the ‘best interests’ model and the ‘direct representation’ model. The Commission recommends that independent children’s lawyers act in accordance with the direct representation model for children aged over 10, that is, act on the child’s instructions. If a child is under 10 or is not mature enough to give instructions, the best interests model should be used.
There are cost implications of appointing independent children’s lawyers in adoption proceedings. However, the decisions under consideration by the court have great and lasting significance for the child. In view of the small number of adoptions in Victoria the Commission considers that the cost is justified.
The Adoption Act should also provide for the court to direct the Secretary or principal officer to appoint a person, such as a social worker or other person of expertise to support a child in proceedings, as well as a lawyer. This person should not be an employee of the Department or of an approved adoption agency.
Discharge of an adoption order
Currently an adoption order may be discharged where the order or consent was based on fraud, duress or other improper means, or where ‘special circumstances’ exist, such as irretrievable breakdown of the relationship between the adopted person and their adoptive parents. Additionally, the court must be satisfied that ‘the welfare and interests of the child would be promoted by the discharge of the adoption order.’
A discharge order effectively reverses the legal effect of an adoption. It severs an adopted person’s relationship with their adoptive family and reinstates their legal relationship with any biological parents or wider family.
From 2010 to 2016, 17 applications for discharge of an adoption order were made in Victoria. All 17 applications were made by adults.
The Commission considers that the current legal tests for discharge of an adoption order are appropriate in relation to an adopted child, and for any application brought by someone other than the adopted person.
However, the Adoption Act should not impose a barrier to an adult adopted person applying to the court for a discharge of an adoption order. The court should be satisfied that the discharge of an adoption order is appropriate and desirable in all the circumstances. The court should also ensure that all parties are advised of the legal effect of discharging an adoption order when they are notified of proceedings.
Adoption support
In the past, support was not considered necessary after an adoption order was made. There is now recognition that adoption has lifelong, intergenerational effects and ongoing support is needed to help parties to adoption manage its effects at a range of times and key points in their lives.
Currently, the key form of post-adoption support is for people seeking access to adoption information. Grants of financial assistance are available in special circumstances.
The Commission was told of a need for a variety of services, tailored to meet the needs of people affected by adoption.
The Commission recommends the Secretary establish and maintain adoption and post-adoption services. The Commission considers that as the state is responsible for arranging adoptions it should also be responsible for post-adoption support. These services should include support provided by approved adoption agencies and other organisations, and specialised adoption support services, including specialist counselling, psychological and psychiatric services.
The people eligible for adoption support, including grants of financial assistance, should include adopted people, natural parents, adoptive parents, parties to an adoption plan, natural relatives, and the natural children of adopted people. This recognises the far-reaching effects of adoption and is consistent with access to adoption information rights under the Adoption Act.
Currently, the only recourse for parties in conflict over contact and information conditions on an adoption order is application to the court, in limited circumstances. The Commission recommends that the Secretary develop a mediation service to assist families in negotiating conflict in relation to any adoption arrangements.
Data and research
Effective adoption support should be evidence-based. However, available adoption data in Victoria is limited. The Commission recommends that the Secretary maintain and annually report comprehensive, statewide data on the operation and delivery of adoption services at all stages of the adoption process, including support and mediation services. This would support the operation of the Adoption Act and enable effective provision of adoption services.
Access to adoption information
Before 1984, adoption information was kept confidential. The current Adoption Act made some of this information available. Part VI of the Adoption Act regulates access to information held in records about adoptions that were negotiated or arranged by the Secretary, an approved agency, or a private adoption agency under the Adoption of Children Act 1964 (Vic).
Part VI of the Adoption Act needs significant revision. The provisions do not set out clearly what information may be made available on request, and under what conditions. Nor do they incorporate the features of subsequent legislation that regulate the handling of personal information by government agencies and protect privacy, such as the Charter, the Privacy and Data Protection Act 2014 (Vic), or the Health Records Act 2001 (Vic).
A new access to information scheme
The Commission recommends that Part VI of the Adoption Act be replaced with a new access to information scheme, designed by DHHS in consultation with the Privacy and Data Protection Commissioner, the Health Services Commissioner and the Ombudsman. The new scheme should incorporate contemporary standards of transparency, accountability and fairness in the management of personal information by Victorian government agencies.
It should ensure that people about whom information is collected are aware of its collection, the purpose of collection, to whom information of that kind is usually disclosed, and their right to have access to the information and correct it if necessary.
The new scheme should apply to information in the possession or control of the Secretary or an agency that relates to an adoption that was negotiated or arranged at any time under current or corresponding previous legislation.
A new scheme provides an opportunity to address issues identified during the Commission’s review.
Centralised administration
People seek access to information under the Adoption Act from Family Information Networks and Discovery (FIND) and three approved agencies. Each of these organisations assesses requests for access, locates the information, obtains it from the Registry of Births, Deaths and Marriages, courts or other organisations, and provides it to the applicant in accordance with the Adoption Act.
The Secretary has information-collection powers (exercised by FIND) that are not available to the other approved agencies. FIND and the approved agencies operate independently under different guidelines and procedures.
Many of the problems identified during consultations, such as delays in obtaining information and inconsistent decision making, arise from this devolved structure.
The Commission recommends that the Secretary be solely responsible for the new access to information provisions. This would address many of the problems raised during consultations. It would provide greater certainty and accountability, and is also a practical solution.
Information covered by the scheme
The new scheme should provide a simple yet comprehensive description of the information to which access may be granted that does not pre-empt decisions about how to respond to a request for access to it.
Protection of information
Part VI of the Adoption Act includes measures to balance one person’s right to access information with another’s right to privacy. These provisions can be very complex, and in some cases the people who have rights to apply for access are the same people as those whose information is protected from unreasonable disclosure.
The new access to information scheme should describe clearly the circumstances in which information may be released under the Adoption Act.
Eligibility to request information
The Adoption Act controls access to information about an adopted person by specifying who has a right to apply for access. Adopted people, adoptive parents, natural parents, natural relatives (a brother, sister, uncle, aunt and grandparent) and the natural adult children of adopted people have the right to apply.
The Commission recommends that the new scheme extend some rights to apply for adoption information, for example the rights of adopted children under 18 and natural relatives. It also recommends that eligible people be enabled to authorise another person to apply on their behalf in defined circumstances.
Access to medical information
Part VI of the Adoption Act permits disclosure to an adopted person of some medical information which is contained in the records relating to the adoption. However, where they do not have contact with their natural parents or natural relatives, they may not be able to obtain up-to-date family medical information. The new access to information provisions should enable adopted people to obtain non-identifying medical information from their natural parents and natural relatives through the Secretary.
Notification and disclosure
Generally there is no requirement for a person to be notified about a disclosure where their agreement or consent is not required.
It is likely that DHHS and approved agencies hold a great deal of personal information about people who are unaware that the records exist or what they contain. Much of this information does not require their consent for its disclosure.
The Commission considers the Secretary should be required to make all reasonable efforts to notify someone that information about them is going to be released, and give them a reasonable opportunity to correct or add comments to information that is wrong or misleading. This would be in accordance with good privacy practice and consistent with the requirements of the modern information privacy regimes.
Adoption Information Register
People who are entitled to apply for information under the Adoption Act are able to ask for certain details to be recorded in an Adoption Information Register maintained by DHHS and each approved agency. This includes their name, contact details and preferences about exchanging information with anyone else on the register. The new access to information scheme should specify the purpose of the Adoption Information Register and provide accurate and complete details about how it works.
Guidelines about information decisions
A request for access to information under the Adoption Act requires the decision maker to assess the relevance and sensitivity of the information and the likely effect on anyone that it identifies.
The Commission recommends that the Secretary develop clear, publicly accessible guidelines to promote consistent decision making about access to information.
Access to information under Part VI of the Adoption Act is generally available only if the applicant has attended an interview with an approved counsellor. Mixed views were expressed about the value of this interview.
The Commission recommends that the interview be offered as an option to all applicants. The Secretary should advise an applicant if the information could reasonably be expected to be distressing to the applicant.
Review of decisions
The modernisation of the access to information scheme provides an opportunity to introduce internal and external review of decisions about those requests. No such reviews are currently provided by the Adoption Act.
A review process would also help to ensure that decision makers are accountable for how they respond to requests. It may identify the need for more training, guidance or resources or other actions to improve the consistency of decisions and the efficiency with which requests are handled.
Reviews should be inexpensive and accessible. The Victorian Civil and Administrative Tribunal (VCAT) is the appropriate external review body in Victoria. An internal review should be a pre-requisite to seeking external review.
The Commission recommends that decisions of the Secretary under the new access to information scheme relating to the disclosure of information be subject to internal review within DHHS and external review by VCAT.

Citizen Science, Consent and Health Research

'Moving beyond Consent for Citizen Science in Big Data Health Research' (University of Hong Kong Faculty of Law Research Paper No. 2017/006) by Anne S. Y. Cheung comments
Consent has been the cornerstone of personal data privacy regime. This notion is premised on the liberal tenets of individual autonomy, freedom of choice and rationality. More important, consent is only meaningful if data subjects are fully informed and parties are of equal bargaining power. Under orthodox framework, it is believed that privacy can be waived by consent.
The above concern is particularly pertinent to citizen science in health and medical research, in which the nature of research is often data intensive with serious implication for individual’s privacy and other interests. Although there is no standard definition for citizen science, it includes generally the gathering and volunteering of data by non-professionals, the participation of non-experts in analysis and scientific experimentation, and public input into research and project. Citizens become experimenters, stakeholders, purveyors of data, research participants or even partners. Consent from citizen scientists is indispensable as it is a constitutive element for self-determination and self-empowerment for participants. Furthermore, consent from data subjects determines the responsibility and accountability of data users. Yet with the advancement of data mining and big data technologies, risks and harm of subsequent data use may not be known at the time of data collection. Progress of research often extends beyond the existing data. Namely, researchers of existing team or even third parties can match data sets to re-identify individuals. Furthermore, big data technology use and transfer of data for other unforeseen purposes maybe outside the control of the original research team. In other words, consent becomes problematic in citizen science in big data era. The model that one can fully specify the terms in notice and consent has become an illusion.
Is consent still valid? Should it still be one of the critical criteria in citizen science health research which are collaborative and contributory by nature? With a focus on the issue of consent and privacy protection, this study will analyze not only the traditional informed consent model but also the alternative models of “open consent”, “portable consent,” “dynamic consent,” and “meta consent.” Facing the challenges that big data and citizen science pose to personal data protection and privacy, this paper explores the legal, social and ethical concerns behind the concept of consent. It argues that we need to move beyond the consent paradigm and take into account a much broader context of harm and risk assessment. Ultimately, what lies behind consent are the entailing values of autonomy, fairness and propriety in the name of research.
'Vulnerable Subjects: Why Does Informed Consent Matter?' by Michele Goodwin in (2016) 44 Journal of Law, Medicine and Ethics comments 
Most literature captures human experiments as either acceptable or unacceptable; good or bad; ethical or non-ethical. However, might there be finer degrees to distinguish medical experimentation from either being permissible or utterly unethical? Does informed consent convey different meanings depending on who invokes the term and the status of the human research subjects? When do researchers really know that consent is informed? Is a signature enough? This Essay unpacks important questions and concerns, including considering what human research subjects are entitled to know before, during, and after agreeing to participate in clinical trials. These matters gain further urgency in the wake of controversies involving the use of fetal tissue in human research. What can policymakers, lawyers, researchers, and doctors learn from the past to inform ethical research and medical practices in the wake of demands for fetal tissue research and the historic exploitation of vulnerable populations, including racial minorities, children, and the elderly in medical research?
This Essay makes three contributions. First, it offers a historical analysis and descriptive account of medical experiments conducted on individuals without informed consent of the human research subjects. Second, through the case studies highlighted, it illuminates how race, class, and status continue to impact decision-making with regard to unethical research. That is, the status of the research subject too often plays a role or influences whether the patient will be treated with dignity, respected, and able to give informed consent. Too frequently if a human research subject is a child, ethnic minority, or poor, she is more likely to be violated in a research study. As the case studies demonstrated, often vulnerable subjects are denied clear medical information and unable to grant informed consent. Third, this Essay queries the role of law and ethics to bring about change.


'The Hermeneutics of Law: An Analytical Model for a Complex General Account' by Ralf Poscher in Michael Forster and Kristin Gjesdal (eds) The Cambridge Companion to Hermeneutics comments 
In contrast to monistic conceptions of hermeneutics as interpretation, legal hermeneutics has always been acutely aware of the complexity of our hermeneutic practices. The legal tradition thus speaks in favor a complex conception of hermeneutics that identifies the different activities involved. The essay tries to show that such diverse activities as interpretation, rule-following, construction, association, the exercise of discretion, and judgments on significance can all be involved in the application of the law. All of these distinct practices involve distinct theoretical issues, most of which can be linked to particular debates in analytic philosophy. To prove the point that this complex conception of hermeneutics is not specific to the law, but applies to hermeneutics in general, some parallels in the field of the hermeneutics of art are drawn. In theoretically following up on the distinctions inherent in legal doctrine and methods, hermeneutics in general can live up to Gadamer’s observation that there is something to be learned from looking at the law.

Sports Data and trade secrets

'Protecting Big Data in the Big Leagues: Trade Secrets in Professional Sports' by Lara Grow and Nathaniel Grow in (2017) 74 Washington and Lee Law Review comments
The protection of trade secrets within the professional sports industry became a hot-button issue in the summer of 2015, after news reports emerged revealing that officials from Major League Baseball’s St. Louis Cardinals were under federal investigation for having illegally accessed proprietary information belonging to their league rival, the Houston Astros. Indeed, professional sports teams in the United States and Canada often possess various forms of proprietary information or processes — ranging from scouting reports and statistical analyses to dietary regimens and psychological assessment techniques — giving them a potential competitive advantage over their rivals. Unfortunately, as with the rest of the economy at-large, little empirical data exists regarding either the types of proprietary information owned by these teams, or the measures that teams are taking to protect their trade secrets.
Drawing upon freshly collected survey data, this article helps to fill this void in the literature by providing novel empirical evidence regarding the modern trade secret practices of the teams in the four major North American professional sports leagues. Based on the results of a first-of-its-kind survey conducted in the spring of 2016 of the general counsels of teams in the four major leagues, the article sheds light on both the types of information subjected to trade secret assertion by these firms, as well as the methods they are using to safeguard their data. In the process, the article examines the implications of these survey results for the professional sports industry, while also identifying potential new lines of inquiry for future trade secret research.

06 June 2017


'Humpty Dumpty Was Wrong - Consistency in Meaning Matters: Some Definitions of Privacy, Publicity, Secrecy, and Other Family Members' by Gary T Marx in (2016) 1(1) Secrecy and Society states 
“When I use a word,” Humpty Dumpty said in rather a scornful tone, “it means just what I choose it to mean — neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master – that’s all.”
- Lewis Carroll Through the Looking Glass
Humpty Dumpty was partially right. His words may mean what he chooses to have them mean, but that is just his story.  There is nothing inherent or eternal in the words (or what they represent). Granted that he has the power to say what he means, but others have the power to say what they mean, not to mention hearing what they choose to hear. Alice is the more interesting of the two when she wonders what the consequences are of making "words mean so many different things." For the understanding of secrecy and related phenomena those consequences are decidedly negative.
In the beginning there was the concept. And in beginning an inquiry into surveillance (Marx 2015), I argue that the failure to  adequately define and differentiate terms can cloud and contort ethical and empirical understanding and lead to unnecessary conflict and unwise policies. Consider surveillance and privacy, terms central to understanding secrecy. What "are" they really? (Or better what do people mean when they use the terms)?
In popular and academic dialogue surveillance is often wrongly seen to be only the opposite of privacy—the former is seen as bad and the latter good. For example, social psychologist Peter Kelvin (1973) emphasized privacy as a nullification mechanism for surveillance. But Kelvin’s assertion needs to be seen as only one of four basic empirical connections between privacy and surveillance. Surveillance is not necessarily the dark side of the social dimension of privacy.  Surveillance implies an agent who accesses personal data (whether through discovery tools, rules, or physical and logistical settings). Privacy, in contrast, involves a subject who can restrict access to personal data through related means. But both can be connected in a variety of ways.
Surveillance can obviously invade privacy—that’s what the fuss is all about (e.g., the employee in a lab testing for AIDS who sold information on positive results to a mortuary). Yet surveillance can also be the means of protecting privacy (biometric identification and audit trails, video cameras that film those with access to sensitive data). And privacy can also protect surveillance (undercover police who use fake IDs and call forwarding to protect their identity) just as it can nullify it (e.g., encryption, whispering, and disguises). Privacy for whom and surveillance of whom and by whom and for what reasons need to be specified.
Depending on how it is used, active surveillance can affect the presence of privacy and/or publicity. As nouns, the latter can be seen as polar ends of a continuum involving rules about withholding and disclosing, and seeking or not seeking, information. Thus, depending on the context and role played, individuals or groups may be required to engage, find it optional to engage, or be prohibited from engaging in these activities, whether as subjects or agents of surveillance and communication .
The rules applying to agents and subjects are in principle independent. When the rules specify that a surveillance agent is not to ask certain questions of (or about) a person and the subject has discretion about what to reveal, we can speak of privacy norms. When the rules specify that the subject must reveal the information or the agent must seek it, we can speak of publicity norms (or, better perhaps, disclosure norms). With publicity norms there is no right to personal privacy that tells the agent not to seek information, or that gives the subject discretion regarding revelation. Rather there is the reverse — the subject has an obligation to reveal and/or the agent to discover

Dignity and the Canon

'Human Dignity and Its Critics' by Jacob Weinrib in Gary Jacobsohn and Miguel Schor (eds) Comparative Constitutional Theory (Elgar, forthcoming) explores
four prominent objections to the overarching role that human dignity plays in constitutional and human rights law. In the eyes of its critics, human dignity is objectionable because it (1) is too variable to be captured by a coherent constitutional theory; (2) stands in opposition to a liberal vision of constitutional governance; (3) fails to offer guidance for resolving constitutional disputes; and (4) is incapable of justifying anything until it is itself justified. My aim is to unearth the presuppositions that generate these objections, explain why these presuppositions are controversial, and to formulate a set of plausible alternatives that do not give rise to these objections. Since the leading objections stem from presuppositions that need not be accepted, these objections do not preclude the formulation of a comparative constitutional theory of human dignity.
'The Gay Rights Canon and the Right to Nonmarriage' by (2017) 97 Boston University Law Review 425 comments 
In the line of cases from Romer v. Evans to Obergefell v. Hodges, lesbian, gay, bisexual, and transgender (“LGBT”) people went from outlaws to citizens entitled to dignity and equality. These decisions represent incredible successes for the LGBT rights movement. Some who support LGBT equality, however, argue that these victories came at a great cost: the gay rights canon, it is said, entrenches the supremacy of marriage and the marital family.
Marriage equality skeptics are right to be concerned about this possibility. Marriage is increasingly a marker of privilege. Individuals who marry and stay married are disproportionately likely to be white and more affluent. It is also important, however, not to overlook the more progressive potential of the gay rights canon.
This Article reclaims this potential. This Article offers two novel and important contributions. First, it identifies and gives substance to the constitutional principles of the gay rights canon. Second, this Article uses the principles of the gay rights canon to offer a rereading of Obergefell. This progressive rereading supports, rather than forecloses, the extension of constitutional protection to those living outside marriage.

Submerged States

'No Port, No Passport: Why Submerged States Can Have No Nationals' by Heather Alexander and Jonathan Simon in (2017) 26(2) Washington International Law Journal comments 
Territorial loss owing to sea level rise presents novel challenges to the international legal order. Nowhere is this clearer than in the case of small island states like the Maldives, Tuvalu and Kiribati, whose very existence is in jeopardy. In our recent article, Sinking Into Statelessness, we argue that the principle of presumption of continuity of state existence does not ensure that sinking states shall or may retain their legal statehood, because that principle cannot overrule the fact that territoriality is a constitutive feature of legal statehood. Here, we argue that even if, contra our previous conclusion, submerged states retain their legal statehood, territory is nevertheless necessary in order for a state to confer nationality in the sense of the 1954 Convention Relating to the Status of Stateless Persons: that is, for a state to consider someone a national under the operation of its law. In consequence, even granting that such a state could exist and have members, its members would need nationality in another state in order to avoid de jure statelessness. To establish this claim, we will argue that for a state to consider someone a national under the operation of its law, that state must be capable of complying with the duty to readmit nationals when requested to do so by another state.

Legal Practitioner Whistleblowing

'Lawyers, Confidentiality and Whistleblowing: Lessons from the McCabe Tobacco Litigation' by Christine Parker, Suzanne Le Mire and Anita Mackay in (2017) 40(3) Melbourne University Law Review 999 comments
 In 2006, Christopher Dale leaked information about Clayton Utz’s internal investigation into the events surrounding the destruction of documents that would have been relevant and damaging to their client, British American Tobacco, in the 2002 McCabe litigation. This article uses this case study to examine whether lawyers can and should act as whistleblowers against colleagues and clients who abuse the administration of justice. We argue that although lawyers must have strong obligations of confidentiality to clients and others, their role as gatekeepers of justice also demands that they be allowed to blow the whistle when they have information about clients or other lawyers using legal services to subvert the administration of justice, and be protected when they do so. The article evaluates the circumstances in which such whistleblowing is appropriate and makes suggestions about how the law should be reformed by reference to three touchstones: the nature of the relationship between the lawyer and the wrongdoer; the nature of the wrongdoing itself; and, the process used to disclose the wrongdoing.
The authors state
Readers of The Sunday Age on 29 October 2006 could hardly have missed the ‘exclusive’ with the headline: ‘Exposed: Dirty Tricks behind Top Lawyers’ Plot to Deny Justice to Cancer Victims’. A follow-up headline was also attentiongrabbing: ‘Justice Denied: How Lawyers Set Out to Defeat a Dying Woman’. The articles detailed the outcome of an internal Clayton Utz investigation highly critical of two senior lawyers in that firm who had represented the British American Tobacco Company Services Limited (‘BATAS’) in litigation. Documents relating to the investigation had been leaked by an unnamed source. The case in question was a lawsuit brought by Rolah McCabe, who was suffering through the final stages of smoking-related cancer. The source of the newspaper stories was ultimately revealed to be Christopher Dale, formerly a partner with Clayton Utz. Dale had helped to conduct the internal review.
Dale’s leak raised the question of whether lawyer whistleblowing to protect the administration of justice is, or should be, permissible. There has, however, been no authoritative resolution of the legal and ethical appropriateness of Dale’s whistleblowing. This article argues that it is appropriate for lawyers to whistleblow when the administration of justice is under threat, and that regulatory changes to facilitate this process are warranted.
Part II of this article briefly summarises the facts of Dale’s leak5 and its significance for the administration of justice. In Part III, we explain the ethical and regulatory significance of whistleblowing, its characteristics, and the issues it raises for lawyers specifically. We argue that lawyers are justified, and indeed obligated, in whistleblowing where they have information about clients or other lawyers using legal services to subvert the administration of justice. We contend that whistleblowing should be permitted in circumstances where courts or regulatory authorities would refuse to uphold client legal privilege due to conduct that would fall into the fraud exception. We go on to suggest, based on the literature on whistleblowing, that there are three relevant elements in considering the appropriateness of whistleblowing, and apply these to lawyer whistleblowing: the nature of the relationship between the lawyer and the wrongdoer; the nature of the wrongdoing itself; and the process that the lawyer whistleblower uses to address and ultimately disclose the wrongdoing. Parts IV, V and VI of the article consider each of these three key elements in turn using Dale’s case to illustrate the legal, ethical and practical difficulties for lawyers considering whistleblowing to protect the administration of justice. On the basis of this analysis, we suggest changes to the professional conduct rules to allow and protect gatekeepers of justice whistleblowing.
They conclude
The disclosure of wrongdoing is controversial since the lawyers’ obligation to keep secret confidences is so intertwined with the lawyer’s identity as to be its ‘defining, paradigmatic feature’. This article has argued by contrast that lawyers are justified, and indeed obligated, to whistleblow where they have information about clients or other lawyers using legal services to subvert the administration of justice. This is an essential element of the lawyer’s duty to the administration of justice and role as a gatekeeper of justice. It also accords with current approaches to regulatory policy and democratic control in which the possibility of leaks and whistleblowing is an essential aspect of the way in which both public and private institutions are subject to democratic control and accountability. Yet, as we have shown, lawyers are largely unprotected by the legislation introduced to encourage appropriate whistleblowing and are thus vulnerable to reprisal including professional discipline if they do whistleblow. Moreover, lawyers lack guidance from professional conduct regulation and education as to when it is and isn’t appropriate to whistleblow. The case of Dale’s leak of internal law firm information regarding whether his own law firm colleagues had assisted their tobacco company lawyer to conceal documents and mislead the court about the extent of their concealment illustrates the difficulties faced by potential gatekeeper of justice whistleblowers, and the complexity of navigating the legal rules around confidentiality and privilege when whistleblowing.
Generally, where officers and employees of organisational clients engage in wrongful and harmful conduct, lawyers should have little ethical difficulty in fulfilling their obligations to justice and to the client by internal whistleblowing; reporting up the organisational hierarchy until something is done to correct the situation. The challenge comes when lawyers are asked to assist their organisational clients to avoid the scrutiny of the justice system or where they discover that their colleagues, clients or lawyers on the other side, or other lawyers that they come into contact with, have breached their duty to the administration of justice.
We have argued that the position in general law under the iniquity rule exception to breach of confidentiality actions, the public policy exception to breach of contract, and the crime–fraud exception to privilege generally allows whistleblowing in such situations, provided an appropriate process is followed. It is, however, difficult, uncertain and probably unreasonable to expect potential lawyer whistleblowers to navigate and rely on the complex and sparse case law in the area. Professional conduct rules recognise no exception for gatekeeper of justice whistleblowing (except for a vague reference to the general law of confidentiality) and provide no guidance as to an appropriate process to follow for any would be whistleblower. Existing legislative whistleblower protections for public servants and corporate employees provide only partial protection and guidance for lawyers. The PID Act does not protect lawyers not contracted to a government agency and the Corporations Act whistleblower protections apply only to corporate employees and in relation to wrongdoing that breaches the Corporations Legislation. We have, therefore, argued that the professional conduct rules should be changed to provide for a gatekeeper of justice whistleblowing exception. This might be most simply done by explicitly introducing an exception to confidentiality in the conduct rules where the crime–fraud exception to privilege or the iniquity rule exception to breach of confidence would apply. We also suggest that professional conduct rules and regulation should provide protection to lawyer whistleblowers that mirrors the type of protection offered by the PID Act, along with guidance as to the appropriate process for whistleblowing that also mirrors the PID Act and observations in the case law concerning the iniquity rule. Finally, we suggest that legal services regulators and/or legal professional bodies should introduce mechanisms by which whistleblower reports concerning breaches to the duty to the administration of justice can be received and investigated in a confidential and effective way so that lawyers do not have to resort to the media.
Furthermore, detailed work to define precisely how our proposed reforms to conduct rules and regulation to allow and protect whistleblowing will work may be necessary. But this should not detract from the urgency of introducing whistleblower exceptions to confidentiality and protections to enable lawyers to act as gatekeepers of justice in relation to their colleagues and organisational clients. In this time of constantly threatening financial, environmental and social crisis, it is absolutely urgent that we do everything we can to enhance the democratic control and just accountability of large and powerful organisations in our society.
'Secrecy, Confidentiality and "Dirty Work": The Case of Public Relations' by Sue Curry Jansen in (2016) 1(1) Secrecy and Society comments 
The prominent midcentury American sociologist Everett C. Hughes wrote a ground-breaking essay on the “dirty work’”that is part of every society. He begins his argument with a discussion of extreme cases - genocide in Nazi Germany, segregation maintained by lynching in the American South and apartheid in South Africa - but then asserts that these extremes point to “a phenomenon common to all societies”:
Almost every group which has a specialized social function to perform is in some measure a secret society, with a body of rules developed and enforced by the members and with some power to save its members from outside punishment.
Viewing this enforcement power as a paradox of social bonding, Hughes maintains that, “A society without smaller, rule-making and disciplining powers would be no society at all.” Hughes further contends that “good people” generally do not want to know what the enforcers who do a society’s dirty work actually do. They look away, keep silent or repress knowledge that “would threaten the group’s conception of itself” if subjected to open discussion.
To break the silence is to betray the group. This is why whistleblowers - no matter how honorable their motives - are usually ostracized by their former compatriots and generally treated with suspicion even by those whose values and interests they are trying to defend.
The conspiracy of silence around societal dirty work allows history to be laundered and salutary myths to prevail. While democracies formally abhor government censorship and value transparency and publicity as essential to creating an informed citizenry, they also countenance various forms of censorship during wartime and other national emergencies. All of the advanced democracies also now routinely exercise forms of information control during peace time in the name of national security, broadly conceived – whether through regimens of classified information, intelligence agencies, surveillance or other stratagems.
Government agencies and businesses, which do society’s dirty work, frequently develop jargons of evasion, which cover their efforts with a veneer of normalcy that renders them less visible. Bureaucracies institutionalize these euphemisms. Nowhere is this more apparent than in military and intelligent agencies. The U.S. military, for example, has developed an elaborate vocabulary of evasion to cover up the dirty work that is part of every war. Words such as “collateral damage” (civilian casualties), “soft targets” (cities), drone warfare (killing people by remote control) shield good people from having to acknowledge their complicity in morally contentious policies and actions.
While democracies have to stretch language and logic to paper over the dirty work that, according to Hughes’ argument, is necessary to their survival, corporations operate under different rules. They are private enterprises, accountable primarily to their shareholders, while subject to various forms of government oversight and regulation, depending upon their locations and reach of their operations. Secrecy is, however, assumed to be an integral part of the corporate modus operandi. It is considered essential to protect trade secrets, negotiate deals and maintain competitive advantage. Like governments, corporations also have their disciplinarians and enforcers who do their dirty work.
This article briefly examines the origins and development of the dirty work that is done by some forms of corporate PR. It focuses primarily on the U.S., which invented corporate PR and exported it to the rest of the world where in recent decades its resources have been mobilized and deployed in the service of neoliberal globalization.