AI Rights?

'Artificial Agents and General Principles of Law' by Antje von Ungern-Sternberg German Yearbook of International Law (Forthcoming)) comments 

Artificial agents – from autonomous cars and weapon systems to social bots, from profiling and tracking programmes to risk assessment software predicting criminal recidivism or voting behaviour – challenge general principles of national and international law. This article addresses three of these principles: responsibility, explainability, and autonomy. Responsibility requires that actors are held accountable for their actions, including damages and breaches of law. Responsibility for actions and decisions taken by artificial agents can be secured by resorting to strict or objective liability schemes, which do not require human fault and other human factors, or by relocating human fault, i.e. by holding programmers, supervisors or standard setters accountable. “Explainability” is a term used to characterise that even if artificial agents produce useful and reliable results, it must be explainable how these results are generated. Lawyers have to define those areas of law that require an explanation for artificial agents’ activities, ranging from human rights interferences to, possibly, any form of automated decision-making that affects an individual. Finally, the many uses of artificial agents also raise questions regarding several aspects of autonomy, including privacy and data protection, individuality, and freedom from manipulation. Yet, artificial agents do not only challenge existing principles of law, they can also strengthen responsibility, explainability, and autonomy.

Data Ownership and Interference

'Ownership of Personal Data in the Internet of Things' by Václav Janeček comments

This article analyses, defines, and refines the concepts of ownership and personal data. It critically examines the traditional dividing line between personal and non-personal data and argues for a strict conceptual separation of personal data from personal information. The article also considers whether, and to what extent, the concept of ownership can be applied to personal data in the context of the Internet of Things (IoT). 

This consideration is framed around two main approaches shaping all ownership theories: bottom-up and top-down approach. Via these dual lenses the article reviews existing debates relating to four elements supporting introduction of ownership of personal data, namely the elements of control, protection, valuation, and allocation of personal data. It then explores the explanatory advantages and disadvantages of the two approaches in relation to each of these elements as well as to ownership of personal data in IoT at large. Lastly, the article outlines a revised approach to ownership of personal data in IoT that may serve as a blueprint for future regulatory and policy debates in the context of EU law and beyond.

'Your Smart Coffee Machine Knows What You Did Last Summer: A Legal Analysis of the Limitations of Traditional Privacy of the Home under Dutch Law in the Era of Smart Technology' by Lisa van Dongen and Tjerk Timan in (2017) 14(2) SCRIPT-ed 208 comments

Today, the Internet has become one of our prime platforms for communication and consumption. Moving beyond the personal computer or smartphones only, increasingly other devices are being connected to the Internet, from coffee machines and watches to beds and toys. Our homes and our activities in the home are thus becoming more and more transparent, due to such objects entering our homes. Through these objects, new forms of spying can be conducted, both qualitatively and quantitatively, that are more invasive than any spying taking place by physically entering and searching the home today. While the rapidly advancing development of the smart(er) home is both undeniably exciting and promising, it is accompanied by a great deal of inadequately answered or otherwise unanswered questions that seem unable to slow its development down enough for us to properly address them. Potential problems arise from many uncertainties regarding these technologies. For instance, where do the digital perimeters of the protected home end? How will privacy be protected, and from whom? Or, in light of the rise of autonomous technological objects, should we start asking from what? Even though it is not possible to properly address and find an answer to these questions in the limited size of this paper, if at all at the present time, these questions are important to raise and consider for the protection of privacy in an increasingly smart(er) world”. 

Instead, this paper will address the question: are the existing definitions of privacy of the home adequate to deal with today’s challenges posed by ‘smart home’ technologies? The focus of this analysis will be on the legal landscape of the Netherlands. As will be argued throughout this paper, this question is answered in the negative. To demonstrate that some of the privacy-related problems are more pressing than most people seem to realise, this paper will first elaborate on developments and implications of smart technologies for the home environment in the second section. This will be followed by a breakdown of some of the elements of the Dutch “home right” in the third section of this paper, for which the focus will be on the meaning and ramifications of the limited legal definitions used for both the “home” and “entering”. In addition, the potential and limits of data protection to account for these weaknesses will be explored in the fourth section. Furthermore, two smart objects will be analysed in the fifth section, namely the smart thermostat and the smart toy ‘Hello Barbie’. These analyses will be used to illustrate the weaknesses under the existing scope of data protection and the “home right”. 

This paper aims to convey two messages. First, that the traditional understanding of privacy of the home in the Netherlands is in need of reconsideration in the era of smart technology. Second, that the ramifications of smart technologies in the home environment require a (stronger) protection of privacy, not just against the state, but increasingly also in horizontal relations.

Gendering

'Gender Recognition As a Human Right' by Holning Lau in Andreas von Arnauld, Kerstin Odendahl and Mart Susi (eds) New Human Rights: Recognition, Novelty, Rhetoric comments

Governments around the world issue identity documents (IDs) that list people’s gender. These IDs include birth certificates, passports, national identification cards, and driver’s licenses, among others. People are expected to present IDs in everyday life for a wide range of purposes, such as opening a bank account, renting a car, boarding an airplane, and voting. Longstanding human rights principles support the proposition that, if IDs contain gender markers, individuals have the right to obtain markers that match their gender identity. For example, a transgender woman should have the right to identify herself as female on her IDs. A transgender man should have the right to identify himself as male. Individuals should also be given the right to indicate if they identify outside the male/female binary.

This book chapter proceeds in three parts. First, I map out the ways in which the right to choose one’s own gender markers—which I will refer to as the right to gender recognition—derives from other well-established human rights. The right to gender recognition is not explicitly mentioned in any international human rights treaty, but this chapter contends that existing treaty provisions nonetheless cover the right to gender recognition. Second, I examine and ultimately reject potential justifications for overriding the right to gender recognition. Third, I assess the extent to which legal institutions have come to acknowledge and protect the right to gender recognition.

Competition and Consumption

'English Competition Law Before 1900' (Fordham Law Legal Studies Research Paper) by Barry E. Hawk comments

English competition law before 1900 developed over the course of many centuries beginning in the medieval period. That development reflected changes in political conditions, economic theories, and broader cultural values. English competition law mirrored the historical movements in England from the medieval ideal of fair prices and just wages to 16th and 17th century nation state mercantilism to the 18th and 19th century Industrial Revolution, laissez faire capitalism and freedom of contract. The development of English competition law is rich in insights for modern antitrust issues like the adaptability of case law and legislation to changing economic conditions, the role of economic theories in the formulation of legal rules, and the role of political and social values in competition policy. 

Today the predominant if not exclusive emphasis on economics in the application of modern antitrust laws has resulted in a quasi-regulatory system far more technical, specialized and narrowly focused than the case making of generalist English common law judges. Modern antitrust law adapts well to changes in economic theories and conditions but it is less adaptable than English common law to shifts in political and social values. This lack of adaptability is viewed by most commentators as a beneficial insulation of decision-making from political or social influences. Proponents of non-economic policy concerns (like fear of concentration for political or social reasons), on the other hand, are forced to formulate their concerns in economic terms because of the prevailing view that only economics counts in antitrust. They would have had an easier task under the English common law.

For a trip to the dark side - one requiring substantive intervention by regulators - I note the TGA's statement last month regarding encapsulated placentas and other placentophagy.

The TGA states

The TGA is aware of several websites offering expectant mothers services for the preparation of the placenta for consumption; a practice known as placentophagy. We are advising expectant mothers to be aware of the potential risks associated with placenta consumption. 

A range of preparation methods are offered, including cooking or drying and encapsulating, with the intention for you, family members or others to consume the placental material after childbirth. More rarely, websites may also offer placenta or placenta-containing medicines made from other human sources. Often these services are offered by a midwife or doula; generally people who provide support and advice to women during pregnancy, birth and after birth. 

There is currently no evidence to support the claims of health benefits associated with consuming human placenta, and the broader risks are unknown.

Quite so, given that processes for preparing the placenta for ingestion, through for example steaming, are likely to substantially reduce pharmacologically active compounds.

The TGA goes on to refer to 'Potential health risks for consumers'

 As an expectant or new mother, you should be aware of the potential health risks associated with the preparation and consumption of your placenta. 

Human placenta is a biological material and is capable of containing and transmitting infectious agents, including bacteria and viruses. In addition, preparation may inadvertently introduce infectious agents. The risk of transmission may be even greater if your placenta is ingested by another person or you ingest another person's placenta. 

Generally the placenta is discarded after childbirth and as a result there are no regulations on how placental material is to be stored and prepared to ensure it is safe for consumption.

And the legal framework?

Potential legal implications for service providers 

Prepared placenta products, including in capsule or tablet form, are often associated with claims that consumption will have some therapeutic benefit for mothers and/or children, for example, improving mood, energy levels and milk production. 

Such claims run the risk of bringing these products under the regulatory framework that covers 'biologicals', governed by legislation that regulates therapeutic goods. This includes the Commonwealth Therapeutic Goods Act 1989 and corresponding legislation in several states and territories. 

Under the Therapeutic Goods Act 1989, it is an offence to make therapeutic biological products without holding the appropriate licence. The Regulatory framework for biologicals page provides further information on licensing requirements. The licence provisions are designed to ensure that the product is manufactured in conditions that will minimise risk to the user. Products that are classed as therapeutic goods must also be approved by the TGA to ensure they are of good quality, safe and effective for the intended purpose. 

These laws also contain substantial penalties, including criminal sanctions, for people making or supplying unapproved biological products, and prohibit the advertising of biological products to the public. 

Depending on the circumstances and the claims made in relation to the product, these laws could also apply to the midwife, doula or even the mother involved.

2014 comments by the UK Food Standards Agency and some research are noted here.

Clouds

The new Commonwealth Secure Cloud Strategy from the Digital Transformation Agency (DTA) states

The case for cloud is no secret to industry or government. A move to cloud computing - away from on premise owned and operated infrastructure - can generate a faster pace of delivery, continuous improvement cycles and broad access to services. It can reduce the amount of maintenance effort required to ‘keep the lights on’ and refocus that effort into improving service delivery.

Cloud, however, is a new way of sourcing Information Communication and Technology (ICT) services and many agencies will have to change the way they operate to make the most of this new model. In the Australian Government, a number of factors can get in the way of agencies realising their cloud aspirations, from a shortage of knowledge and experience, decades old, stubborn operating models and a struggle to sell the case for cloud across the business.

The Secure Cloud Strategy has been developed to guide agencies past these obstacles and make sure everyone has the opportunity to make the most of what cloud has to offer. This is not a simplistic ‘lift and shift’ view of the transition. Instead, the strategy aims to lay the foundations for sustainable change, seizing opportunities to reduce duplication, enhance collaboration, improve responsiveness and increase innovation across the Australian Public Service.

Some agencies have already embraced the cloud model. A coordinated approach for further adoption will make sure government derives the maximum value from this shift. The strategy will ensure experience and expertise is not locked-up and create opportunities to reuse and share capabilities through increased collaboration.

The strategy is based around a number of key initiatives designed to prepare agencies for the shift to cloud and support them through the transition:

• Agencies will develop their own cloud strategies. There is no one-size-fits-all approach to implementing cloud. Agencies will use the Secure Cloud Strategy as a starting point to produce their own value case, workforce plan, best-fit cloud model and service readiness assessment.

• Cloud implementation will be guided by seven Cloud Principles: − make risk-based decisions when applying cloud security − design services for the cloud − use public cloud services as the default − use as much of the cloud as possible − avoid customisation and use cloud services as they come − take full advantage of cloud automation practices, − monitor the health and usage of cloud services in real time.  

• A layered Cloud Certification Model will be created. The certification model creates greater opportunity for agency-led certifications, rather than just ASD certifications. It creates a layered certification approach where agencies can certify using the practices already in place for certification of ICT systems. 

• Service procurement will be aligned with the ICT Procurement Review Recommendations. As cloud services move more rapidly than services available through panels traditionally do, the recommendations in the ICT Procurement Review align well with creating a better pathway for cloud procurement. 

• cloud qualities baseline and assessment framework will be introduced to clarify cloud requirements. The cloud qualities baseline capability and assessment framework will enable reuse of assessments. 

• A Cloud Responsibility Model will be developed to clarify responsibilities and accountabilities. Traditional head agreements cannot cover all cloud services and their frequent variations. A shared capability for understanding responsibilities, supported by contracts, will address unique cloud risks, follow best practice and maintain provider accountability. 

• A cloud knowledge collaboration platform will be built. The platform will enable secure sharing of cloud service assessments, technical blueprints and other agency cloud expertise, to iterate on work already done rather than duplicating it. 

• Cloud skills uplift programs will be designed. Increase government skills and competencies for cloud aligned with the Australian Public Service Commission Digital Skills Capability Program and create the pathways to leverage industry programs to enhance cloud-specific skills in the Australian Public Service. 

• Common shared platforms and capabilities will be explored including: − Federated identity for government to enable better collaboration in the cloud. − A platform for PROTECTED information management to reduce enclaves in agencies, and continue to iterate cloud.gov.au as an exemplar platform. − Service Management Integrations services to enable agencies to manage multi provider services.

These platforms will include the integration toolkits that enable agencies to seamlessly transition between the cloud services. 

These initiatives will be supported through a Digital Transformation Agency-led community of practice that will support agencies to plan and transition their environments for cloud. It will include delivering training and advice to agencies to build confidence in their ability to manage cloud services. 

The Australian Government has an ambitious agenda to transform its digital service delivery. Cloud offers reusable digital platforms at a lower cost, and shifts service delivery to a faster, more reliable digital channel. Cloud services have the opportunity to make government more responsive, convenient, available and user-focused.

The Strategy comments -

Myth: Privacy reasons mean government data cannot reside offshore. 

“Generally, no. The Privacy Act does not prevent an Australian Privacy Principle (APP) entity from engaging a cloud service provider to store or process personal information overseas. The APP entity must comply with the APPs in sending personal information to the overseas cloud service provider, just as they need to for any other overseas outsourcing arrangement. In addition, the Office of the Australian Information Commissioner’s Guide to securing personal information: ‘Reasonable steps’ to protect personal information discusses security considerations that may be relevant under APP 11 when using cloud computing.” https://www.oaic.gov.au/agencies-and-organisations/agency-resources/privacy-agency-resource-4-sending-personalinformation-overseas 

Additionally, APP 8 provides the criteria for cross-border disclosure of personal information, which ensures the right practices for data residing off-shore are in place. Our Australian privacy frameworks establish the accountabilities to ensure the appropriate privacy and security controls are in place to maintain confidence in our personal information in the cloud.

'The Ethics of Cloud Computing' by Boudewijn de Bruin and Luciano Floridi in (2017) 23(1) Science and Engineering Ethics 21-39 comments

Cloud computing is rapidly gaining traction in business. It offers businesses online services on demand (such as Gmail, iCloud and Salesforce) and allows them to cut costs on hardware and IT support. This is the first paper in business ethics dealing with this new technology. It analyzes the informational duties of hosting companies that own and operate cloud computing datacenters (e.g., Amazon). It considers the cloud services providers leasing ‘space in the cloud’ from hosting companies (e.g, Dropbox, Salesforce). And it examines the business and private ‘clouders’ using these services. The first part of the paper argues that hosting companies, services providers and clouders have mutual informational (epistemic) obligations to provide and seek information about relevant issues such as consumer privacy, reliability of services, data mining and data ownership. The concept of interlucency is developed as an epistemic virtue governing ethically effective communication. The second part considers potential forms of government restrictions on or proscriptions against the development and use of cloud computing technology. Referring to the concept of technology neutrality, it argues that interference with hosting companies and cloud services providers is hardly ever necessary or justified. It is argued, too, however, that businesses using cloud services (banks, law firms, hospitals etc. storing client data in the cloud, e.g.) will have to follow rather more stringent regulations.

Interning

"The Program Risks of Work-Integrated Learning: A Study of Australian University Lawyers' by Craig Cameron, Brett Freudenberg, Jeff Giddings and Christopher Klopper in (2017) 40(1) Journal of Higher Education Policy and Management 67-80 comments 

Work-integrated learning (WIL) is a risky business in higher education. The strategic opportunities that WIL presents for universities cannot be achieved without taking on unavoidable legal risks. University lawyers are involved with managing the legal risks as part of their internal delivery of legal services to universities. It is important to identify the risks that potentially arise, so these can then be managed. A case study involving Australian university lawyers reveals the ‘program risks’ of WIL. Program risk is a type of legal risk that relates to the conduct of universities, host organisations and students before, during and after a WIL placement, as well as the personal characteristics of students that can expose the university to legal risk. The research findings may be applied by university lawyers, academic disciplines and university management to evaluate and improve risk management in WIL programs

'Risks and Rewards of Externships: Exploring Goals and Methods' (Monash University Faculty of Law Legal Studies Research Paper No. 3071105) by Linda Smith, Jeff Giddings and Leah Wortham explores

 the full range of goals one might have for an extern program and the methods one should use to achieve those goals. Despite regulatory focus on practice readiness and “skills” development, externships need not and sometimes should not have “skills” as the primary goal. If skills are to be a focus, then students must learn the theory and methods behind the skills to be used in the placement either through targeted pre-requisites, a skills-focused classroom component, or selection of placement supervisors with the ability to impart both the relevant theory and methods. Commentators have identified both skills and professionalism as lacking in legal education, and externships have special advantages for development of professional identity and for institutional critique--the micro and the macro aspects of professionalism. Students are in the “real world,” able to try out a professional identity and to study the ways in which their supervisors enact the lawyering role. They are encountering actual legal institutions that function well or not-so-well, which should lead to critical inquiry into these institutions. The emotional and analytical distance between the teacher at the law school and the day-to-day supervisor should facilitate the exploration of both professional identity and institutional critique. Exploring these aspects of professionalism are rich and important goals, we argue, that extern programs ought to seek.

Privacy Paradox

'Is the Privacy Paradox in Fact Rational? by Benjamin Agi and Nicolas Jullien comments 

Research on the privacy paradox – the dichotomy between individuals’ intentions to disclose personal information and their actual disclosure behavior – has become popular as policy makers have been working on privacy laws. This article provides a literature review of the privacy paradox across fields of study. Many researchers have explored the privacy paradox and come up with the conclusion that decisions taken by individuals regarding the transmission of private data were irrational. This article first provides a systematized review of the extensive literature in psychology, sociology, management, economics and biology that explores the decision-making process related to online transfer of private data. Then, we show that the literature seems to agree on the fact that people act either rationally or with limited rationality. To conclude, we focus on the potential importance of awareness campaigns or key historical moments to explain the different sensitivities people have regarding privacy issues.

Robots and Estates

The Rise of Robots and the Law of Humans (Oxford Legal Studies Research Paper No. 27/2017) by Horst Eidenmueller comments

In this article, I attempt to answer fundamental questions raised by the rise of robots and the emergence of ‘robot law’. The main theses developed in this article are the following: (i) robot regulation must be robot- and context-specific. This requires a profound understanding of the micro- and macro-effects of ‘robot behaviour’ in specific areas. (ii) (Refined) existing legal categories are capable of being sensibly applied to and regulating robots. (iii) Robot law is shaped by the ‘deep normative structure’ of a society. (iv) If that structure is utilitarian, smart robots should, in the not too distant future, be treated like humans. That means that they should be accorded legal personality, have the power to acquire and hold property and to conclude contracts. (v) The case against treating robots like humans rests on epistemological and ontological arguments. These relate to whether machines can think (they cannot) and what it means to be human. I develop these theses primarily in the context of self-driving cars – robots on the road with a huge potential to revolutionize our daily lives and commerce.

The South Australian Law Reform Institute report Who may inspect a will released late last year responds to the Institute's exploration of 'the areas of succession law that were most in need of review in South Australia'.

The Institute's recommendations are -

R 1 SALRI recommends that no change to the present law is necessary to allow inspection of a will prior to a testator’s death as SALRI does not support a legislative provision to allow inspection of a will prior to a testator’s death beyond any limited situations contemplated under current law and practice  

R 2 SALRI recommends that legislative provision be made in South Australia for an entitlement to inspect a will after a testator’s death based on the draft Wills Bill 1997 and s 54 of the Succession Act 2006 (NSW) and such a provision should extend to the following categories:

1. Any person named or referred to in the will, whether as a beneficiary or not; any person named or referred to in an earlier will as a beneficiary of the deceased person. 

2. The surviving spouse, domestic partner (whether of the same sex or not) or child or stepchild of the deceased person.  

3. A parent or guardian of the deceased person. 

4. Any person who would be entitled to a share of the estate of the deceased person if the deceased person had died intestate. 

5. Any parent or guardian of a minor referred to in a will or who would be entitled to a share of the estate of the deceased person if the deceased person had died intestate. 

6. Any person committed with the management of the deceased person’s estate under the Guardian and Administration Act 1993 (SA), immediately before the death of the deceased person. 

R 3 SALRI recommends that legislative provision should be made for a party (including a creditor) who has or may have a claim at law or in equity against the estate of a deceased person to be able to inspect a will but only by order of a court and such an order should only be granted where the applicant has some proper interest and can establish why inspection of the will is appropriate. 

R 4 SALRI recommends that consolidation of South Australian succession law legislation into one new Succession Act for ease of reference be progressed, either after, or at the same time as, any amendments to the Inheritance (Family Provision) Act 1972 (noting SALRI’s previous Report into Intestacy).

The Institute states

There is no entitlement to inspect a will before the testator’s death. The will of a living person is considered a private document (and SALRI sees no reason to change this position). There is also no entitlement in South Australia under either statue or the common law to inspect a will after the testators’ death (or at least until a will is admitted to probate when it becomes a public document). There is no apparent statutory or inherent power for a court to order inspection of a will before a grant of probate as Master Sanderson explained in the recent West Australian case of Chapman v Garrigan (which is equally applicable in a South Australian context). The Master commented: ‘There appears to be no reported case in which a party has sought, let alone obtained, a copy of a will not yet admitted to probate.’ 

The National Committee supported a legislative provision to allow inspection of a will after a testator’s death. It noted that a person who has the control of a will after the testator’s death may be reluctant to show it to anyone owing to a misconceived view that a will is a private document or a desire to keep the person who is seeking to see the will in ignorance of its contents. The National Committee also noted that not all wills are brought to court for probate, particularly where an estate is small and not worth the expense involved. In such a situation, possible beneficiaries and other claimants may be placed in ‘an invidious position if they do not know anything about the contents of the will’.30 A person who is eligible to apply for family provision may not be able to discover whether the testator has made provision for him or her by a will, and is unable to begin to consider whether to make a claim. 

The National Committee accepted that only a person with a ‘proper interest’ (not say a journalist) should be able to see the will and that the persons entitled to share in the estate should be able to see the contents of a will. The Committee noted such information is always publicly available once a will has been admitted to probate. 

The National Committee drew on the proposed s 66A of the Administration and Probate Act 1958 (Vic), but stated that, in addition to the four categories of eligible parties listed in s 66A,  the following people should also be entitled to see a will: beneficiaries of prior wills or a parent or guardian of a minor referred to in the will or who would be entitled to a share of the estate of the testator if the testator had died intestate. The National Committee considered that any new provision should include either testamentary documents that have been revoked, or documents the testamentary nature of which may be disputable. It noted an executor is not permitted by a probate court to pick and choose which testamentary instruments he or she should bring to court for probate purposes. The National Committee recommended that the term ‘will’ in any provision should include ‘a revoked will, or a copy of any such will and any part of such a will’. The National Committee prepared a draft Wills Bill 1997 which was intended to be adopted across Australia. Clause 52 of this Bill dealt with the inspection of a will.  

The National Committee in 2005 reiterated its support for such a provision to allow inspection of wills. 

Similar laws to that suggested by the National Committee now exist in New South Wales, the ACT, Northern Territory, Queensland, Tasmania and Victoria. No such law exists in South Australia or Western Australia. No such law, despite the support of the New Zealand Law Reform Commission, exist in New Zealand. The will of a living person is considered private in England. Upon a testator’s death, but before a grant of probate, only the executor has the strict authority to access the will. A will becomes public after probate and any person may search the probate records and receive a copy of the will. 

The Tasmanian section allowing access to a will provides that it does not operate while a testator is alive. The Victorian provision extends to de facto spouses (or ‘domestic partners’ to use the South Australian expression). The Queensland provision extends to an ‘entitled person’. This means a person considered to have a proper interest in the will such as a person who may apply for a family provision order. The ACT section extends to ‘an interested party’ which includes a child or domestic partner of the deceased. 

The NSW model is most recent and most detailed and the one that SALRI has examined.    

The Succession Act 2006 (NSW) (the NSW Act) commenced on 1 March 2008. The object of the Act is to restate with amendments the law relating to wills in New South Wales to implement, with modifications, the relevant recommendations of the National Committee. One of several changes introduced was a change in the persons entitled to inspect the will of a deceased person. 

Section 54(2) of the NSW Act gives specified persons a right of inspection or to receive copies of the will of a deceased. This right was not previously available. Section 54 applies to wills whenever made if the testator dies on or after 1 March 2008 being the commencement date of the Act (reproduced at Appendix B). For the purposes of s 54, a will includes (reflecting the view of the National Committee) a revoked will, a document purporting to be a will, a part of a will and a copy of a will. 

Section 54(2) provides that a person who has possession or control of a will of a deceased person must allow any one or more of the following persons to inspect or be given copies of the will (at their own expense): (a) Any person named or referred to in the will, whether as a beneficiary or not; (b) Any person named or referred to in an earlier will as a beneficiary of the deceased person; (c) The surviving spouse, de facto partner (whether of the same or opposite sex) or issue of the deceased person; (d) A parent or guardian of the deceased person; (e) Any person who would be entitled to a share of the estate of the deceased person if the deceased person had died intestate; (f) Any parent or guardian of a minor referred to in a will or who would be entitled to a share of the estate of the deceased person if the deceased person had died intestate; (g) Any person (including a creditor) who has or may have a claim at law or in equity against the estate of the deceased person; (h) Any person committed with the management of the deceased person’s estate under the Protected Estates Act 1983, immediately before the death of the deceased person, (i) Any attorney under an enduring power of attorney made by the deceased person; (j) Any person belonging to a class of persons prescribed by the regulations. 

Master Sanderson in Chapman v Garrigan noted the reluctance on the part of executors named in a will to provide an interested party with a copy of the will ‘is an issue which not infrequently causes problems both in relation to probate matters and particularly in relation to [family provision] matters’. The Master encouraged practitioners to exercise common sense in this area and remarked that it is difficult to envisage any circumstance where it would be appropriate for a party who has or may have an interest in an estate to be denied a copy of the will. The Master commented that, even if a potential beneficiary were to object to that course of action, the named executor would still be justified in providing a copy of the will upon request. The Master noted the benefit of a legislative provision to allow inspection before probate. 

The Institute goes on to comment

SALRI accepts that there are situations where it would be helpful to allow inspection of a will before a testator’s death56 but this undermines legitimate consideration of privacy and confidentiality (a view also emphasised by the Hon Tom Gray QC). SALRI does not support a legislative provision to allow inspection of a will prior to death beyond any limited situations contemplated under current law and practice. In contrast, SALRI supports allowing inspection of a will after a testator’s death to parties with a proper interest or potential interest in the estate. 

SALRI considers that there are four benefits to a legislative provision for the inspection of wills after a testator has died. 

First, it would encourage openness and transparency in the administration of estates. In the absence of a clear obligation to provide access to a will, those in control of the will may be reluctant to show it to anyone or allow inspection. This may be because they view a will as a private item or desire to keep it secret. Refusing to allow access may lead to suspicion and mistrust. In contrast, allowing those with a proper and legitimate interest (not a mere ‘busy body’ as Mr Rymill notes) in the estate to see a will may help defuse distrust and prevent unnecessary litigation. Given the tensions and stresses all too often evident in the aftermath of a testator’s death, anything which serves to alleviate tension and distrust is welcome. 

Secondly, it would assist in the orderly administration of estates. As Master Sanderson observed, the administration of estates would run more smoothly if access to a will was provided as a rule rather than as an exception to some assumed rule. 

Thirdly, to allow access to a will promotes fairness. It enables creditors to find out about the assets of the deceased. Those eligible to make a claim under the IFPA will have more time to consider whether to make a claim because they can determine earlier if any claim under the IFPA is likely to be successful. A person only has six months in South Australia to make a claim under the IFPA after probate is granted. Access to the will may address the unfairness experienced by possible beneficiaries and other claimants (including under the IFPA) where an estate is informally administered without a grant of probate60 (this is a regular event, notably in smaller estates). 

Finally, to allow access promotes clarity and certainty. SALRI has been told by succession lawyers that they often hold wills on behalf of their clients and may have no instructions from the testator but they often receive requests after the testator’s death for access to the will. The firm may be placed in a difficult position in deciding who should or should not have access. Tasmanian practitioners welcomed the Tasmanian section based on the draft Wills Bill 1997 setting out access to a will and remarked that the provision simply gave effect to what already happened in practice. 

SALRI considers that its proposal does not undermine considerations of privacy or confidentiality. A will is always publicly available once it has been admitted to probate. The proposed provision is simply designed to ensure the same result prior to a will’s admission to probate, or in the event that no application is made for probate. 

SALRI considers that there is benefit in a legislative provision to provide for access to wills prior to probate. It draws on what was identified by Master Sanderson as sound practice and common sense.