Decisions

The NSW Law Reform Commission's Decision-making models question paper (Question Paper 2) as part of its Review of the Guardianship Act 1987 features the following questions -

A formal supported decision-making framework for NSW?

Question 5.1: Formal supported decision-making

(1) Should NSW have a formal supported decision-making model?

(2) If there were to be a formal supported decision-making model, how can we ensure there was an appropriate balance between formal and informal arrangements?

(3) If there were not to be a formal supported decision-making model, are there any ways we could better recognise or promote informal supported decision-making arrangements in NSW law?

Question 5.2: Key features of a formal supported decision-making model

(1) Should NSW have formal supporters?

(2) If so, should NSW permit personal or tribunal appointments, or both?

(3) Should NSW have formal co-decision-makers?

(4) If so, should NSW permit personal or tribunal appointments, or both?

(5) What arrangements should be made for the registration of appointments?

Question 5.3: Retaining substitute decision-making as an option

(1) If a formal supported decision-making framework was adopted, should substitute decision-making still be available as an option?

(2) If so, in what situations should substitute decision-making be available?

(3) Should the legislation specify what factors the court or tribunal should consider before appointing a substitute decision-maker and, if so, what should those factors be?

Question 5.4: Other issues

Are there any other issues about alternative decision-making models you would like to raise?

Supporters and co-decision-makers

Question 6.1: When supporters and co-decision-makers can be appointed

(1) What requirements should be met before a person needing support can appoint a supporter or co-decision-maker?

(2) What requirements should be met before a court or tribunal can appoint a supporter or co-decision-maker?

Question 6.2: Eligibility criteria for supporters and co-decision-makers

What, if any, eligibility criteria should potential supporters and co-decision-makers be required to meet?

Question 6.3: Characteristics that should exclude potential appointees

What, if any, characteristics should exclude particular people from being supporters or co-decision-makers?

Question 6.4: Number of supporters and co-decision-makers What limits, if any, should there be on the number of supporters or co-decision-makers that can be appointed?

Question 6.5: Public agencies as supporters or co-decision-makers

(1) What are the advantages and disadvantages of allowing public agencies to be appointed as supporters or co-decision-makers?

(2) In what circumstances should public agencies be able to act as supporters or co-decision-makers?

Question 6.6: Paid workers and organisations as supporters and co-decision-makers

(1) What are the advantages and disadvantages of allowing paid care workers to be appointed as either supporters or co-decision-makers?

(2) In what circumstances should paid care workers be appointed as supporters or co-decision-makers?

(3) What are the advantages and disadvantages of allowing professional organisations to be appointed as either supporters or co-decision-makers?

(4) In what circumstances should professional organisations be appointed as supporters or decision-makers?

Question 6.7: Volunteers as supporters and co-decision-makers

(1) What could be the advantages and disadvantages of appointing community volunteers as supporters?

(2) What could be the advantages and disadvantages of appointing community volunteers as co-decision-makers?

(3) In what circumstances do you think community volunteers should be appointed as supporters or co-decision-makers?

Question 6.8: Powers and functions of supporters

(1) What powers and functions should the law specify for formal supporters?

(2) What powers or functions should the law specifically exclude for formal supporters?

Question 6.9: Powers and functions of co-decision-makers

(1) What powers and functions should the law specify for formal co-decision-makers?

(2) What powers and functions should the law specifically exclude for formal co-decision-makers?  

Question 6.10: Duties and responsibilities of supporters and co-decision-makers

(1) What duties and responsibilities should the law specify for formal supporters?

(2) What duties and responsibilities should the law specify for formal co-decision-makers?

(3) What duties and responsibilities should the law specifically exclude for formal supporters and formal co-decision-makers?

Guardianship

The NSW Law Reform Commission Question Paper 3 (The role of guardians and financial managers) regarding the Review of the Guardianship Act 1987.

The paper reflects the Commission's terms of reference - the desirability of changes to the Guardianship Act 1987 (NSW), with regard to:

1. The relationship between the Guardianship Act 1987 (NSW) and - The NSW Trustee and Guardian Act 2009 (NSW) - The Powers of Attorney Act 2003 (NSW) - The Mental Health Act 2007 (NSW) - other relevant legislation.

2. Recent relevant developments in law, policy and practice by the Commonwealth, in other States and Territories of Australia and overseas.

3. The report of the 2014 ALRC Equality, Capacity and Disability in Commonwealth Laws.

4. The UN Convention on the Rights of Persons with Disabilities.

5. The demographics of NSW and in particular the increase in the ageing population.

The Commission is to consider:

1. The model or models of decision making that should be employed for persons who cannot make decisions for themselves.

2. The basis and parameters for decisions made pursuant to a substitute decision making model, if such a model is retained.

3. The basis and parameters for decisions made under a supported decision making model, if adopted, and the relationship and boundaries between this and a substituted decision making model including the costs of implementation.

4. The appropriate relationship between guardianship law in NSW and legal and policy developments at the federal level, especially the National Disability Insurance Scheme Act 2013, the Aged Care Act 1997 and related legislation.

5. Whether the language of ‘disability’ is the appropriate conceptual language for the guardianship and financial management regime and to what extent ‘decision making capacity’ is more appropriate.

6. Whether guardianship law in NSW should explicitly address the circumstances in which the use of restrictive practices will be lawful in relation to people with a decision making incapacity.

7. In the light of the requirement of the UNCRPD that there be regular reviews of any instrument that has the effect of removing or restricting autonomy, should the Guardianship Act 1987 provide for the regular review of financial management orders.

8. The provisions of Division 4A of Part 5 of the Guardianship Act 1987 relating to clinical trials.

9. Any other matters the NSW Law Reform Commission considers relevant to the Terms of Reference. 

The paper features the following questions -

2. Who can be a guardian or a financial manager?

Question 2.1: Who can be an enduring guardian?

(1) Who should be eligible to be appointed as an enduring guardian?

(2) Who should be ineligible to be appointed as an enduring guardian?

Question 2.2: Who can be a tribunal-appointed guardian?

(1) What should the Tribunal consider when deciding whether to appoint a particular person as a guardian?

(2) Who should be ineligible to act as a guardian?

Question 2.3: When should the Public Guardian be appointed?

(1) Should the Tribunal be able to appoint the Public Guardian as a guardian? If so, when should this occur?

(2) Should there be any limits to the Tribunal’s ability to appoint the Public Guardian? If so, what should these limits be?

Question 2.4: Should community volunteers be able to act as guardians?

(1) What could be the benefits and disadvantages of a community guardianship program?

(2) Should NSW introduce a community guardianship program?

(3) If NSW does introduce a community guardianship program: (a) who should be able to be a community guardian? (b) how should community guardians be appointed? (c) who should recruit, train and supervise the community guardians?

Question 2.5: Who can be a private manager?

(1) What should the Tribunal consider when deciding whether to appoint a particular person as a private manager?

(2) Should the Guardianship Act include detailed eligibility criteria for private managers or is the current “suitable person” test sufficient?

(3) Should the same eligibility criteria apply to private guardians and private managers? If so, what should these common criteria be?

(4) What are the benefits and disadvantages of appointing private corporations to act as financial managers?

(5) Should the Tribunal be able to appoint a corporation to be a private manager? If so, under what circumstances should this occur?

Question 2.6: Should the NSW Trustee be appointed only as a last resort?

(1) Should the Guardianship Act state explicitly that the Tribunal can only appoint the NSW Trustee as a last resort?

(2) If so, how should this principle be expressed in the Act?

Question 2.7: Should the Act include a succession planning mechanism?

(1) Should the Guardianship Act allow relatives, friends and others to express their views on who should be a person’s guardian or financial manager in the future?

(2) What could be the benefits and disadvantages of such a succession planning mechanism?

(3) When deciding who to appoint, should the Tribunal be required to give effect to the wishes expressed in a succession planning statement?

 3. What powers and functions should guardians and financial managers have?

Question 3.1: What powers and functions should enduring guardians have?

(1) Should the Guardianship Act contain a more detailed list of the powers and functions that an adult can grant to an enduring guardian? If so, what should be included on this list?

(2) Should the Guardianship Act contain a list of the powers and functions that an adult cannot grant to an enduring guardian? If so, what should be included on this list?

Question 3.2: Should the Tribunal be able to make plenary orders?

(1) What are the benefits and disadvantages of allowing the Tribunal to make plenary orders?

(2) Should the Guardianship Act: (a) continue to enable the Tribunal to make plenary orders (b) require the Tribunal to specify a guardian’s powers and functions in each guardianship order, or (c) include some other arrangement for granting powers?

Question 3.3: What powers and functions should tribunal-appointed guardians have?

(1) Should the Guardianship Act list the powers and functions that the Tribunal can grant to a guardian? If so, what should be included in this list?

(2) Should such a list: (a) set out all the powers that a guardian can exercise, or (b) should it simply contain examples?

3 The role of guardians and financial managers

Question 3.4: Are there any powers and functions that guardians should not be able to have?

(1) Should the Guardianship Act contain a list of powers and functions that the Tribunal cannot grant to a guardian?

(2) If so, what should be included in this list?

Question 3.5: What powers and functions should financial managers have?

(1) What powers and functions should be available to a private manager?

(2) What powers and functions should the NSW Trustee have when acting as a financial manager?

(3) Are the current arrangements for granting powers to private managers adequate? If not, how should powers be granted to private managers?

(4) Should the legislation list the powers that a financial manager cannot exercise? If so, what should be on this list?

Question 3.6: Should the roles of guardians and financial managers remain separate?

(1) What are the benefits and disadvantages of keeping the roles of guardians and financial managers separate?

(2) What are the benefits and disadvantages of combining the roles of guardians and financial managers?

(3) Should the roles of tribunal-appointed guardians and financial managers remain separate?

4. What decision-making principles should guardians and financial managers observe?

Question 4.1: What decision-making principles should guardians and financial managers observe? What principles should guardians and financial managers observe when they make decisions on behalf of another person?

Question 4.2: Should guardians and financial managers be required to give effect to a person’s “will and preferences”?

(1) What are the advantages and disadvantages of the current emphasis on “welfare and interests” in the Guardianship Act’s general principles?

(2) Should “welfare and interests” continue to be the “paramount consideration” for guardians and financial managers?

(3) What could be the benefits and disadvantages of requiring guardians and financial managers to give effect to a person’s will and preferences?

(4) Should guardians and financial managers be required to give effect to a person’s will and preferences?

Question 4.3: Should NSW adopt a “substituted judgment” model?

(1) What could be the benefits and disadvantages of a “substituted judgment” approach to decision-making?

(2) Should the Guardianship Act require guardians and financial managers to give effect to the decision the person would have made if they had decision-making capacity (that is, a “substituted judgment” approach)?

(3) If so, how would guardians and financial managers work out what the person would have wanted? Should the legislation set out the steps they should take?

Question 4.4: Should NSW adopt a “structured will and preferences” model?

(1) What could be the benefits and disadvantages of a “structured will and preferences” approach to decision-making?

(2) Should guardians and financial managers be required to make decisions based upon a person’s will and preferences?

(3) If so, how would guardians and financial managers work out a person’s will and preferences? Should the legislation set out the steps they should take?

(4) What should a guardian or financial manager be required to do if they cannot determine a person’s will and preferences?

(5) Should a guardian or financial manager ever be able to override a person’s will and preferences? If so, when should they be allowed to do this?

Claims

The NSW Law Reform Commission report Third party claims on insurance money (Report 143) reflects terms of reference regarding the Law Reform (Miscellaneous Provisions) Act 1946 (NSW).

The report states that the Commission was asked to review and report on section 6 of that Act, which provides a mechanism enabling third parties to assert and enforce a statutory charge over insurance moneys payable to an insured person in circumstances where the insured's solvency is in question. The Commission was to consider whether the section should be repealed or amended, and in this context consider whether the policy objectives remain valid and, if so, whether those objectives could be better achieved. In undertaking the review, it was to have regard to:

1 All relevant issues relating to the uncertain practical application of section 6.

2 The impact or potential impact of relevant case law and developments in law, policy and practice by the Commonwealth, in other States and Territories of Australia and overseas.

3 The impact of any repeal of section 6 on protections for third party claimants seeking to recover the proceeds of a liability insurance policy to which they are entitled.

4 Whether any repeal or amendment of section 6 should apply to contracts already in force.

5 Any other matters the NSW Law Reform Commission considers relevant to the Terms of Reference. 

The report explains

Section 6 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) allows a plaintiff to access proceeds of insurance where proceedings against an insured defendant are not possible or would be pointless because, for example, the defendant is missing or insolvent.

It achieves this by a special “charge” that attaches to the money that the insurer would be required to pay under the insurance contract. The charge attaches “on the happening of the event giving rise to the claim for damages or compensation”.

The charge has caused many conceptual problems in applying s 6, particularly in relation to claims made policies and claims for pure economic loss, but also in cases where the insurance contract allows for money to be paid, for example, to fund the defence of directors and officers of defendant companies.

The section has been generally criticised for its obscure drafting and the problems it presents for interpretation. Changes to the insurance market since it was enacted 70 years ago have also made its effect unclear. There are many areas of uncertainty and inadequacy in its application.

Existing Commonwealth provisions that seek to achieve the same ends do not cover all the situations that s 6 covers and, in some cases, require additional proceedings.

The Commission comments

We believe a provision is needed to meet the situations that s 6 aims to address. However, this provision should do so without the contrivance of the charge – by providing a plaintiff with direct access to the insurer, in appropriate cases.

Ideally, the Commonwealth should enact a general provision that covers all possible scenarios. This would ensure complete coverage and eliminate “forum shopping”. However, pending such an outcome, we consider that NSW should legislate to provide a clearer, more effective provision than the current s 6. The new provision could provide a model for other States and Territories, or the Commonwealth, to adopt.

We, therefore, propose a new provision to replace the current s 6 that clarifies areas of uncertainty and makes reforms where necessary. The new provision will resolve the issue of payment of defence costs dealt with in the key case, Chubb Insurance Company of Australia Ltd v Moore [2013] NSWCA 212, while ensuring that a plaintiff can recover from an insurer in appropriate cases. Where reform is not required, our recommendations seek to achieve the same effect as the existing provisions. In some cases we have clarified the existing law with words which adopt a preferred interpretation.

Our recommendations do not increase the liability of insurers. Like the current s 6, the new provision should ensure that an insurer is not liable for more than the insurer would have been liable to pay under the insurance contract. It should also ensure that the insurer can rely on the same defences that the insured defendant could have relied on in an action brought by the plaintiff.

The Commission's Draft Bill is to give effect to recommendations

1: Plaintiff’s right to recover against the defendant’s insurer (page 33)

If a defendant (being a natural person or a corporation): (a) has a liability to a plaintiff to pay any damages or compensation (b) was insured (directly or as a third party) by an insurance contract that would have covered that liability, and (c) has for any reason failed or is unable to meet the liability in whole or in part then the plaintiff should be able to recover from the insurer the amount the insurer would have paid to the defendant under the insurance contract in respect of the defendant’s liability to the plaintiff.

2: Proceedings against the insurer – leave to proceed

(1) Whether or not the circumstances in Recommendation 1(a)-(c) have yet been established, the plaintiff should only be able to sue the insurer with the leave of the court. (2) Leave may be sought and granted before or after the commencement of proceedings against the insurer. (3) Leave may not be granted if the insurer can establish that it is entitled to disclaim liability under the contract of insurance or any relevant law.

3: The insurer stands in the place of the defendant

The insurer should stand in the place of the defendant in proceedings brought by the plaintiff as if the action were an action to recover damages or compensation from the insured, so that the parties shall have the same rights and liabilities, and the court shall have the same powers, as if the action were against the defendant.

4: Judgment against defendant no bar to proceedings against insurer

The plaintiff should be able to proceed against the insurer even though judgment has already been obtained against the defendant for damages or compensation in respect of the same matter, except to the extent that any judgment against the defendant has been satisfied.

5: Limits on insurer’s liability to the defendant preserved

(1) The insurer should not be liable for any greater sum than the insurer is liable to pay the defendant under the relevant insurance contract. (2) The insurer may raise against the plaintiff any matter in answer to or in reduction of its liability that it could have raised against the defendant.

6: Discharge of insurer’s obligations

Any payment by the insurer to the plaintiff, to the extent of the payment, should discharge any obligation the insurer has to the defendant under the insurance contract.

7: Preventing collusion between the parties

Any payment the insurer makes to the defendant, or any compromise agreed between the insurer and the defendant in respect to a liability referred to in Recommendation 1, does not discharge the insurer’s liability to the plaintiff under this provision, unless and to the extent that the defendant pays the money to the plaintiff.

8: Discovery to find the defendant’s insurer

The provision should not prevent plaintiffs obtaining information about the identity and whereabouts of a defendant’s insurer under r 5.2 of the Uniform Civil Procedure Rules 2005 (NSW).

9: Limitation periods

For the bringing of proceedings against an insurer under this provision, time should: (a) commence running against the plaintiff at the same time as the cause of action accrues to the plaintiff against the defendant, and (b) stop running against a plaintiff when the plaintiff commences proceedings against the defendant or the insurer, whichever is earlier.

10: Effect on workers compensation and other provisions

The new provision should: (a) not affect the operation of any of the provisions of workers compensation or any other legislation to the extent that they allow plaintiffs to access insurance money, and (b) be in addition to rights conferred under workers compensation or any other legislation.

11: Territorial application

The new provision should apply to an action that a plaintiff brings in a New South Wales court.

12: Reinsurance

The new provision should expressly not extend to reinsurers under contracts of reinsurance.

13: Transitional provisions

Section 6 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) should continue to apply to and in respect of proceedings commenced against insurers before the commencement of the new provisions.

Anxiety and Data Breach

'Risk and Anxiety: A Theory of Data Breach Harms' by Daniel J. Solove and Danielle Keats Citron argues

 In lawsuits about data breaches, the issue of harm has confounded courts. Harm is central to whether plaintiffs have standing to sue in federal court and whether their claims are viable. Plaintiffs have argued that data breaches create a risk of future injury from identity theft or fraud and that breaches cause them to experience anxiety about this risk. Courts have been reaching wildly inconsistent conclusions on the issue of harm, with most courts dismissing data breach lawsuits for failure to allege harm. A sound and principled approach to harm has yet to emerge, resulting in a lack of consensus among courts and an incoherent jurisprudence.

In the past five years, the U.S. Supreme Court has contributed to this confounding state of affairs. In 2013, the Court in Clapper v. Amnesty International concluded that fear and anxiety about surveillance – and the cost of taking measures to protect against it – were too speculative to constitute “injury in fact” for standing. The Court emphasized that injury must be “certainly impending” to warrant recognition. This past term, the U.S. Supreme Court in Spokeo v. Robins issued an opinion aimed at clarifying the harm required for standing in a case involving personal data. But far from providing guidance, the opinion fostered greater confusion. What the Court made clear, however, was that “intangible” injury, including the “risk” of injury, could be sufficient to establish harm. In cases involving informational injuries, when is intangible injury like increased risk and anxiety “certainly impending” or “substantially likely to occur” to warrant standing? The answer is unclear.

Little progress has been made to harmonize this troubled body of law, and there is no coherent theory or approach. In this essay, we examine why courts have struggled when dealing with harms caused by data breaches. The difficulty largely stems from the fact that data breach harms are intangible, risk-oriented, and diffuse. Harms with these characteristics need not confound courts; the judicial system has, been recognizing intangible, risk-oriented, and diffuse injuries in other areas of law.

We argue that courts are far too dismissive of certain forms of data breach harm. In many instances, courts should find that data breaches cause cognizable harm. We explore how existing legal foundations support the recognition of such harm. We demonstrate how courts can assess risk and anxiety in a concrete and coherent way.

Arnstein

'The Questionable Origins of the Copyright Infringement Analysis' by Shyamkrishna Balganesh in (2016) 68 Stanford Law Review comments

Central to modern copyright law is the test for determining infringement, famously developed by Judge Jerome Frank in the landmark case of Arnstein v. Porter. The “Arnstein test,” which courts continue to apply, demands that the analysis be divided into two components: actual copying — the question whether the defendant did in fact copy — and improper appropriation — the question whether such copying, if it did exist, was unlawful. Somewhat counterintuitively, though, the test treats both components as pure questions of fact, requiring that even the question of improper appropriation go to a jury. This jury-centric approach continues to influence modern copyright law and is responsible for the subjective and unpredictable nature of the infringement analysis in copyright infringement lawsuits. Examining the memoranda, correspondence, and extrajudicial writings of the three judges who decided the Arnstein case reveals that the court’s decision to empower the jury was driven almost entirely by Judge Frank’s unique legal philosophy — his skeptical views about judicial factfinding and his desire to control lower court decisionmaking. Characterizing the entire infringement analysis as a purely factual one provided him with a perfect mechanism for giving effect to his skepticism. The Arnstein test thus had very little to do with substantive copyright law and policy, a reality that copyright jurisprudence has thus far ignored altogether in its continuing affirmation of the opinion’s framework. This Article disaggregates the complex issues that were at play in Arnstein to show how the opinion was rooted in a dystopian vision of the adjudicative process that has since come to be universally repudiated and argues that it may well be time for copyright jurisprudence to reconsider its dogmatic reliance on Arnstein, thereby freeing copyright law from one of its best-known malaises.

Balganesh argues

The Arnstein opinion itself says very little about its reasons for according juries such a central role in what is unquestionably a complex determination. What makes this omission in the opinion doubly perplexing is the reality that the author of the majority opinion, Judge Jerome Frank, was an outspoken and acerbic critic of the jury system. A well-known legal realist, Judge Frank devoted many hours of his nonjudicial work to criticizing the jury system in various books and articles. The practice of allowing a jury to decide what was in effect “its own ‘law’ in each case” was to Judge Frank among the greatest scourges of the American system of adjudication, since it contributed to unpredictable “jury-made law,” which often bore no connection to actual rules of law. Judge Frank’s lifelong distaste for juries and his careful identification of the various malaises promoted by the jury system are therefore hard to reconcile with the overwhelming confidence in juries that he exudes in Arnstein, a confidence that continues to haunt copyright law and practice to this day.

This Article shows that the Arnstein court’s decision to rely on juries for the infringement analysis had very little to do with copyright law or policy. The Arnstein formulation was hardly a considered decision about the values at stake in the copyright infringement analysis but instead almost entirely the product of Judge Frank’s well-developed legal philosophy, which led him to an approach that minimized the role of lower court judges in the infringement analysis and significantly curtailed their ability to rely on issues of law to decide cases. Considerations of copyright law were for the most part entirely secondary to the court’s decision. While scholars (and, on occasion, courts) have criticized the Arnstein court’s analytical framework, hardly anyone has examined exactly why the majority opinion chose to go down the road that it did.

Understanding Arnstein and its legacy requires appreciating the unique worldview of the majority opinion’s author, Judge Jerome Frank, who held strong views about legal rules and the centrality of facts to adjudication. A close reading of the opinions in the case; an examination of the archival memoranda, draft opinions, and correspondence between the judges; and an analysis of the judges’ various contemporaneous extrajudicial writings tell a complex story about the framing of the court’s opinion and its decision to rely on the jury to assess the legality of a defendant’s copying. In the end, this story reveals that the Arnstein opinion remains a true epitome of legal realism, as famously and controversially articulated and advanced by Judge Frank. This reading even suggests that Arnstein’s canonical status in copyright jurisprudence may merit serious reconsideration.

Arnstein is today taken to have decided an important substantive rule relating to the elements of an actionable copyright infringement claim. In actuality, the majority opinion spends little time on copyright principles and devotes most of its attention to an important procedural question: the appropriate standard for summary judgment. This can be explained by the majority’s discomfort with the lower court opinion. The district court in the case granted the defendant’s motion for summary judgment because the judge refused to believe the plaintiff’s account of the facts. In his opinion finding for the defendant, the district court judge specifically alluded to the plaintiff’s prior record of litigiousness and went on to characterize the plaintiff’s claims as “fantastic.” To the majority in Arnstein, the district court’s seeming reliance on the plaintiff’s prior filings was highly problematic, since it suggested that the judge failed to fully consider the merits of the particular case at hand. What was additionally troublesome to the majority, however, was its intuitive sense that the two works at issue shared some level of similarity, as revealed in the judges’ private correspondence. The majority further felt that this intuition necessitated something more than a summary disposal of the case. Reversing the district court’s grant of summary judgment to ensure that this intuition received due attention upon remand required a fair bit of guile. Without ever mentioning that his disagreement with the lower court was on the facts, Judge Frank devised an approach that would allow his version of the facts to be given due consideration. Instead of simply reversing the district court and remanding for another possible decision on summary judgment, Judge Frank sent the case back to the lower court with specific instructions, not only as to whom the factfinder was meant to be (i.e., the jury), but also as to the appropriate steps and standards to be employed during the factfinding process. While the first of these may have been procedurally desirable to avoid summary judgment, the second was altogether unnecessary since the lower court had not even reached the issue of improper appropriation when it granted summary judgment on the question of copying (access).

Judge Frank thus deftly intermingled both substantive and procedural rules, thereby enabling the jury to test his interpretation of the factual record. Through such maneuvering, he effected a reversal that was, in the end, purely about the facts. But in so doing, he created an all-important copyright law rule: determining whether copying is improper is a subjective factual question for the jury, rather than a legal question with its own normative standard.

Arnstein is perhaps a prime example of a hard case making bad law. Judge Frank’s focus on the procedural aspects of the case in order to ensure the plaintiff received a fair hearing muddied the copyright issues at stake by suggesting that the decision to involve juries in the copyright infringement analysis was a considered point of copyright law. Indeed, it is for this anomalous reason that even though the standard for summary judgment enunciated in Arnstein has since been overruled, copyright law—relying on Arnstein and its rich lineage—continues to accord juries a primary role in the infringement analysis. Ironically, in an opinion handed down a mere five days after Arnstein, Judge Frank himself illustrated his comfort in making copyright infringement determinations without any jury at all, a reality that has gone largely unnoticed. The court’s procedural maneuverings in Arnstein — maneuverings designed to grant Ira Arnstein a jury trial—have instead assumed a life of their own. Appreciating the interwoven factual, procedural, substantive, and theoretical issues that were at play in Arnstein sheds new light on its importance within the copyright canon. Indeed, it raises the distinct possibility that as a principled normative matter — driven by copyright’s utilitarian and constitutional goals — there may be little reason to treat all aspects of the infringement analysis as purely factual questions for a lay jury. That position was driven in large measure by Judge Frank’s legal philosophy, which he applied to the facts of the case before him and much of which has since been soundly repudiated in American legal thinking. There is thus good reason to question the wisdom of continuing to provide juries with primary control over the question of infringement in the manner suggested by Arnstein. Scholars have over the years voiced their skepticism of the Arnstein two-step test and its seemingly naive belief in the competence of lay juries to understand the complexities of copyright law. Yet few have seriously investigated the reasons for this naiveté. A richer understanding of Arnstein’s mistaken legacy suggests that it might well be time for courts to seriously revisit and rationalize copyright law’s infringement analysis.

The argument in this Article unfolds in four parts. Part I begins with a discussion of Ira Arnstein’s copyright claim against the defendant, Cole Porter, and a close reading of the three principal opinions in the case—one from the district court and two (the majority and the dissent) from the Second Circuit. It closes with a brief discussion of how courts have interpreted and adopted Arnstein over the years, illustrating the case’s canonical status in copyright law. Part II introduces the legal philosophies and views of the judges who heard the case. In it, we see how Judge Frank brought to the case his controversial views about the role of courts, rule skepticism, factfinding in trials, and the appropriate use of summary judgment, which played off of the views and opinions of the other judges in the case. Part III reconstructs the Arnstein opinion against the backdrop of these philosophies and the judges’ own archival documents (draft opinions, conference memoranda, and private correspondence) to produce a more nuanced and textured image of the case and its contributions to copyright law. Part IV then moves to the prescriptive and argues that, with the rejection of Judge Frank’s overarching philosophy in Arnstein, it may well be time for copyright law to abandon its doctrinaire conformity to the Arnstein formulation.

Offshore Children and Protection

The Child Protection Panel's Making children safer: The wellbeing and protection of children in immigration detention and regional processing centres report comments

Since the Child Protection Panel (the Panel) commenced its work in March 2015, there has been a profound change to the immigration detention environment and that at the regional processing centre (RPC) in Nauru. The number of children in detention facilities or the RPC has decreased very significantly. This is the result of a major effort to move children and their families into community settings within Australia, and the Government of Nauru implementing ‘open centre’ arrangements while the processing of transferees’ claims is expedited.

These shifts have not reduced the relevance of this report. Community detention is now the primary form of detention of children awaiting status resolution in Australia. The Panel’s recommendations will further promote the wellbeing and protection of children in community detention. Further, some of the Panel’s recommendations, such as incident inquiry, internet security, information management and intelligence, have broader application beyond the child protection context.

A key emphasis for the Panel has been a focus on strategies to improve child wellbeing, as well as improving the responses of the Australian Government Department of Immigration and Border Protection (the Department) to incidents involving children. Since the Panel commenced its work, the Department has already responded positively to many of the Panel’s observations.

 The report goes on to state

The terms of reference call for the Panel to ‘ensure that a comprehensive and contemporary framework for the Department relating to the protection of children is in place’.

Importantly, the Department’s Child Safeguarding Framework has now been finalised, providing high-level guidance for staff and service providers. A key recommendation of the Panel is the completion of the policy architecture that supports this Child Safeguarding Framework, and the alignment of service provider policies and key departmental roles.

The terms of reference further call for the Panel to ‘assess the adequacy of departmental and service provider policy and practice around the management of incidents of abuse, neglect or exploitation involving children’.

The Panel assessed 242 incidents of child abuse. Responses to just over half of the cases were assessed by the Panel as adequate or good. The response to child victims was comparatively better than the response to persons of interest (POIs).

The Panel has observed that the held detention environment shifted considerably during its tenure. For matters reviewed throughout this process, and indeed early in the Panel’s existence, departmental service providers tended to control incidents and responses, with the Department, in many cases, playing a secondary role. A greater emphasis on accountability for departmental officers has led to a significant capability improvement in relation to the Department’s ability to respond to incidents.

Observations on the data

The most vulnerable victim group identified through the case reviews was children under the age of 6 years, who made up 40 per cent of the victims. Of this group, 70 per cent were males. Just over 75 per cent of POIs were adults, with males represented at twice the proportion of females. Service provider staff or subcontractors represented less than 10 per cent of the POIs.

The data show that nearly 25 per cent of cases featured child victims who had previously been reported as being the subject of earlier child abuse. There was a relatively small group of 22 POIs that the Panel would characterise as recidivists, as they featured in approximately 25 per cent of all cases.

The Panel notes that, notwithstanding the serious nature of many incidents reviewed, less than 1 per cent of all cases resulted in criminal convictions.

There has been a very high level of compliance by the Department and its service providers, achieving a 95.3 per cent rate against the mandatory reporting requirements in each state and territory jurisdiction.

 The Panel's Key findings are

Incident reporting and categorisation

High-quality incident reporting is critical to establishing a good basis for investigation and effective action. This is an area where considerable improvement is required. Incident reports often tended to be very brief, with inadequate description of what was reported or observed. The Panel was also of the view that improvements to complaint management systems were generally warranted, as there was a pattern of premature closure of matters and a lack of transparency in the complaint process. The categorisation of incidents needs to be strengthened to accurately identify the number, nature and seriousness of incidents – including improving consistency across different service providers.

Child safeguarding inquiries

There is a need to significantly strengthen the Department’s capacity to conduct child safeguarding inquiries into incidents of child abuse. This will call for stronger leadership from senior operational staff, including coordination of multi-agency forums to facilitate the outcomes of child protection safeguarding inquiries. It is essential that inquiries are not finalised until all available facts are established and effectively responded to, even if a criminal investigation cannot proceed. The Panel noted that the Department and service providers often lacked the capability to effectively respond to complex incidents.

Improving management of information flow

The Panel found that there was a need to improve the flow of detainee- and transferee-related information within and outside the Department. Staff need to know where this information is held and how it can be accessed. In the longer term, integrating the currently fragmented information holdings relating to children and their families will be important.

When privacy considerations restrict the flow of necessary information, this can be largely overcome by seeking consent from detainees and transferees to share such information.

Community detention capability

There is a need to strengthen the capability of community detention service providers to ensure that staff have the skills to identify and act on emerging risks to children, and respond effectively to critical incidents. There is also a need to develop case management protocols relating to children to inform placement decisions and identify support needs. This latter observation applies equally in held detention.

The Panel acknowledges that it had the least amount of time to work on community detention cas-es, which is arguably the most important area moving forward. There is important work to be undertaken on identification and management of risk in the community detention environment.

Risk management

The Panel found that the current approach to risk management focuses broadly on physical security and good order of detention facilities. In community detention, the Panel found no risk frameworks in place. It is important that the Department works with service providers to extend existing risk assessment mechanisms to ensure that they specifically address the safety of children in detention and those who are a threat to children.

External relationships

The Panel notes that, in promoting the wellbeing and protection of children, the Department must work in close cooperation with state and territory authorities – both child protection and others. It is important that the Department continue to build strong relationships with those authorities to enable the reciprocal flow of information about child protection matters and establish a common understanding of the processes followed by each party so that complex cases can be effectively resolved.

The Panel noted steps taken by the Government of Nauru to improve its child protection services, and the improved capability of its local police, supported by Australian Government officials

Elder Abuse

The Australian Law Reform Commission's 266 page discussion paper (DP 83) on Elder Abuse features the following questions and recommendations for reform -

2. National Plan

Proposal 2 – 1 A National Plan to address elder abuse should be developed.

Proposal 2–2 A national prevalence study of elder abuse should be commissioned.

3. Powers of Investigation

Proposal 3–1 State and territory public advocates or public guardians should be given the power to investigate elder abuse where they have a reasonable cause to suspect that an older person: (a) has care and support needs; (b) is, or is at risk of, being abused or neglected; and (c) is unable to protect themselves from the abuse or neglect, or the risk of it because of care and support needs.

Public advocates or public guardians should be able to exercise this power on receipt of a complaint or referral or on their own motion.

Proposal 3–2 Public advocates or public guardians should be guided by the following principles: (a) older people experiencing abuse or neglect have the right to refuse support, assistance or protection; (b) the need to protect someone from abuse or neglect must be balanced with respect for the person’s right to make their own decisions about their care; and (c) the will, preferences and rights of the older person must be respected.

Proposal 3–3 Public advocates or public guardians should have the power to require that a person, other than the older person: (a) furnish information; (b) produce documents; or (c) participate in an interview relating to an investigation of the abuse or neglect of an older person

Proposal 3–4 In responding to the suspected abuse or neglect of an older person, public advocates or public guardians may: (a) refer the older person or the perpetrator to available health care, social, legal, accommodation or other services; (b) assist the older person or perpetrator in obtaining those services; (c) prepare, in consultation with the older person, a support and assistance plan that specifies any services needed by the older person; or (d) decide to take no further action.

Proposal 3–5 Any person who reports elder abuse to the public advocate or public guardian in good faith and based on a reasonable suspicion should not, as a consequence of their report, be: (a) liable, civilly, criminally or under an administrative process; (b) found to have departed from standar ds of professional conduct; (c) dismissed or threatened in the course of their employment; or (d) discriminated against with respect to employment or membership in a profession or trade union.

5. Enduring Powers of Attorney and Enduring Guardianship

Proposal 5–1 A national online register of enduring documents, and court and tribunal orders for the appointment of guardians and financial administrators, should be established.

Proposal 5–2 The making or revocation of an enduring document should not be valid until registered. The making and registering of a subsequent enduring document should automatically revoke the previous document of the same type.

Proposal 5–3 The implementation of the national online register should include transitional arrangements to ensure that existing enduring documents can be registered and that unregistered enduring documents remain valid for a prescribed period.

Question 5–1 Who should be permitted to search the national online register without restriction?

Question 5–2 Should public advocates and public guardians have the power to conduct random checks of enduring attorneys’ management of principals’ financial affairs?

Proposal 5–4 Enduring documents should be witnessed by two independent witnesses, one of whom must be either a: (a) legal practitioner; (b) medical practitioner  (c) justice of the peace; (d) registrar of the Local/Magistrates Court; or (e) police officer holding the rank of sergeant or above. Each witness should certify that: (a) the principal appeared to freely and voluntarily sign in their presence; (b) the principal appeared to understand the nature of the document; and (c) the enduring attorney or enduring guardian appeared to freely and voluntarily sign in their presence.

Proposal 5–5 State and territory tribunals should be vested with the power to order that enduring attorneys and enduring guardians or court and tribunal appointed guardians and financial administrators pay compensation where the loss was caused by that person’s failure to comply with their obligations under the relevant Act.

Proposal 5–6 Laws governing enduring powers of attorney should provide that an attorney must not enter into a transaction where there is, or may be, a conflict between the attorney’s duty to the principal and the interests of the attorney (or a relative, business associate or close friend of the attorney), unless: (a) the principal foresaw the particular type of conflict and gave express authorisation in the enduring power of attorney document; or (b) a tribunal has authorised the transaction before it is entered into.

Proposal 5–7 A person should be ineligible to be an enduring attorney if the person: (a) is an undischarged bankrupt; (b) is prohibited from acting as a director under the Corporations Act 2001 (Cth); (c) has been convicted of an offence involving fraud or dishonesty; or (d) is, or has been, a care worker, a health provider or an accommodation provider for the principal.

Proposal 5–8 Legislation governing enduring documents should explicitly list transactions that cannot be completed by an enduring attorney or enduring guardian including: (a) making or revoking the principal’s will; (b) making or revoking an enduring document on behalf of the principal; (c) voting in elections on behalf of the principal; (d) consenting to adoption of a child by the principal; (e) consenting to marriage or divorce of the principal; or (f) consenting to the principal entering into a sexual relationship

Proposal 5–9 Enduring attorneys and enduring guardians should be required to keep records. Enduring attorneys should keep their own property separate from the property of the principal.

Proposal 5–10 State and territory governments should introduce nationally consistent laws governing enduring powers of attorney (including financial, medical and personal), enduring guardianship and other substitute decision makers.

Proposal 5–11 The term ‘representatives’ should be used for the substitute decision makers referred to in proposal 5–10 and the enduring instruments under which these arrangements are made should be called ‘Representatives Agreements’.

Proposal 5–12 A model Representatives Agreement should be developed to facilitate the making of these arrangements.

Proposal 5–13 Representatives should be required to support and represent the will, preferences and rights of the principal.

6. Guardianship and Financial Administration Orders

Proposal 6–1 Newly-appointed non-professional guardians and financial administrators should be informed of the scope of their roles, responsibilities and obligations.

Question 6–1 Should information for newly-appointed guardians and financial administrators be provided in the form of: (a) compulsory training; (b) training ordered at the discretion of the tribunal; (c) information given by the tribunal to satisfy itself that the person has the competency required for the appointment; or (d) other ways?

Proposal 6–2 Newly-appointed guardians and financial administrators should be required to sign an undertaking to comply with their responsibilities and obligations.

Question 6–2 In what circumstances, if any, should financial administrators be required to purchase surety bonds?

Question 6–3 What is the best way to ensure that a person who is subject to a guardianship or financial administration application is included in this process?

7. Banks and superannuation

Proposal 7–1 The Code of Banking Practice should provide that banks will take reasonable steps to prevent the financial abuse of older customers. The Code should give examples of such reasonable steps, including training for staff, using software to identify suspicious transactions and, in appropriate cases, reporting suspected abuse to the relevant authorities.

Proposal 7–2 The Code of Banking Practice should increase the witnessing requirements for arrangements that allow people to authorise third parties to access their bank accounts. For example, at least two people should witness the customer sign the form giving authorisation, and customers should sign a declaration stating that they understand the scope of the authority and the additional risk of financial abuse.

Question 7–1 Should the Superannuation Industry (Supervision) Act 1993 (Cth) be amended to: (a) require that all self-managed superannuation funds have a corporate trustee; (b) prescribe certain arrangements for the management of self-managed superannuation funds in the event that a trustee loses capacity; (c) impose additional compliance obligations on trustees and directors when they are not a member of the fund; and (d) give the Superannuation Complaints Tribunal jurisdiction to resolve disputes involving self-managed superannuation funds?

Question 7–2 Should there be restrictions as to who may provide advice on, and prepare documentation for, the establishment of self-managed superannuation funds?

8. Family Agreements

Proposal 8–1 State and territory tribunals should have jurisdiction to resolve family disputes involving residential property under an ‘assets for care’ arrangement.

Question 8–1 How should ‘family’ be defined for the purposes ‘assets for care’ matters?

9. Wills

Proposal 9–1 The Law Council of Australia, together with state and territory law societies, should review the guidelines for legal practitioners in relation to the preparation and execution of wills and other advance planning documents to ensure they cover matters such as: (a) common risk factors associated with undue influence; (b) the importance of taking detailed instructions from the person alone; (c) the importance of ensuring that the person understands the nature of the document and knows and approves of its contents, particularly in circumstances where an unrelated person benefits; and (d) the need to keep detailed file notes and make inquiries regarding previous wills and advance planning documents.

Proposal 9–2 The witnessing requirements for binding death benefit nominations in the Superannuation Industry (Supervision) Act 1993 (Cth) and Superannuation Industry (Supervision) Regulations 1994 (Cth) should be equivalent to those for wills

Proposal 9–3 The Superannuation Industry (Supervision) Act 1993 (Cth) and Superannuation Industry (Supervision) Regulations 1994 (Cth) should make it clear that a person appointed under an enduring power of attorney cannot make a binding death benefit nomination on behalf of a member.

10. Social Security

Proposal 10–1 The Department of Human Services (Cth) should develop an elder abuse strategy to prevent, identify and respond to the abuse of older persons in contact with Centrelink.

Proposal 10–2 Centrelink policies and practices should require that Centrelink staff speak directly with persons of Age Pension age who are entering into arrangements with others that concern social security payments.

Proposal 10–3 Centrelink communications should make clear the roles and responsibilities of all participants to arrangements with persons of Age Pension age that concern social security payments.

Proposal 10–4 Centrelink staff should be trained further to identify and respond to elder abuse.

11. Aged care

Proposal 11–1 Aged care legislation should establish a reportable incidents scheme. The scheme should require approved providers to notify reportable incidents to the Aged Care Complaints Commissioner, who will oversee the approved provider’s investigation of and response to those incidents.

Proposal 11–2 The term ‘reportable assault’ in the Aged Care Act 1997 (Cth) should be replaced with ‘reportable incident’. With respect to residential care, ‘reportable incident’ should mean: (a) a sexual offence, sexual misconduct, assault, fraud/financial abuse, ill-treatment or neglect committed by a staff member on or toward a care recipient; (b) a sexual offence, an incident causing serious injury, an incident involving the use of a weapon, or an incident that is part of a pattern of abuse when committed by a care recipient toward another care recipient; or (c) an incident resulting in an unexplained serious injury to a care recipient. With respect to home care or flexible care, ‘reportable incident’ should mean a sexual offence, sexual misconduct, assault, fraud/financial abuse, ill-treatment or neglect committed by a staff member on or toward a care recipient.

Proposal 11–3 The exemption to reporting provided by s 53 of the Accountability Principles 2014 (Cth), regarding alleged or suspected a ssaults committed by a care recipient with a pre-diagnosed cognitive impairment on another care recipient, should be removed.

Proposal 11–4 There should be a national employment screening process for Australian Government funded aged care. The screening process should determine whether a clearance should be granted to work in aged care, based on an assessment of: (a) a person’s national criminal history; (b) relevant reportable incidents under the proposed reportable incidents scheme; and (c) relevant disciplinary proceedings or complaints.

Proposal 11–5 A national database should be established to record the outcome and status of employment clearances. Question 11–1 Where a person is the subject of an adverse finding in respect of a reportable incident, what sort of incident should automatically exclude the person from working in aged care?

Question 11–2 How long should an employment clearance remain valid?

Question 11–3 Are there further offences which should preclude a person from employment in aged care?

Proposal 11–6 Unregistered aged care workers who provide direct care should be subject to the planned National Code of Conduct for Health Care Workers.

Proposal 11–7 The Aged Care Act 1997 (Cth) should regulate the use of restrictive practices in residential aged care. The Act should provide that restrictive practices only be used: (a) when necessary to prevent physical harm; (b) to the extent necessary to prevent the harm; (c) with the approval of an independent decision maker, such as a senior clinician, with statutory authority to make this decision; and (d) as prescribed in a person’s behaviour management plan.

Proposal 11–8 Aged care legislation should provide that agreements entered into between an approved provider and a care recipient cannot require that the care recipient has appointed a decision maker for lifestyle, personal or financial matters.

Proposal 11–9 The Department of Health (Cth) should develop national guidelines for the community visitors scheme that: (a) provide policies and procedures for community visitors to follow if they have concerns about abuse or neglect of care recipients; (b) provide policies and procedures for community visitors to refer care recipients to advocacy services or complaints mechanisms where this may assist them; and (c) require training of community visitors in these policies and procedures.

Proposal 11–10 The Aged Care Act 1997 (Cth) should provide for an ‘official visitors’ scheme for residential aged care. Official visitors’ functions should be to inquire into and report on: (a) whether the rights of care recipients are being upheld; (b) the adequacy of information provided to care recipients about their rights, including the availability of advocacy services and complaints mechanisms; and (c) concerns relating to abuse and neglect of care recipients.

Proposal 11–11 Official visitors should be empowered to: (a) enter and inspect a residential aged care service; (b) confer alone with residents and staff of a residential aged care service; and (c) make complaints or reports about suspected abuse or neglect of care recipients to appropriate persons or entities.