Biocomputing Data Sharing

'Envisioning data sharing for the biocomputing community' by Enrico Riccardi, Sergio Pantano and Raffaello Potestio in (2019) 9(3) Interface Focus comments

The scientific community is facing a revolution in several aspects of its modus operandi, ranging from the way science is done—data production, collection, analysis—to the way it is communicated and made available to the public, be that an academic audience or a general one. These changes have been largely determined by two key players: the big data revolution or, less triumphantly, the impressive increase in computational power and data storage capacity; and the accelerating paradigm switch in science publication, with people and policies increasingly pushing towards open access frameworks. All these factors prompt the undertaking of initiatives oriented to maximize the effectiveness of the computational efforts carried out worldwide. Taking the moves from these observations, we here propose a coordinated initiative, focusing on the computational biophysics and biochemistry community but general and flexible in its defining characteristics, which aims at addressing the growing necessity of collecting, rationalizing, sharing and exploiting the data produced in this scientific environment.

The authors argue

The power of computational methods in the study of living systems has immensely grown in the past few decades. The size of the systems that can be studied by means of computer-based approaches has boosted from a few to millions of atoms, while the accuracy of force fields has systematically improved thanks to ab initio calculations and the integration of experimental data, making these in silico models predictive. A prominent role has been and is being played by coarse-grained models, that is, simplified representations of complex biological systems whose level of resolution is lower than atomistic (crossing all scales up to the continuum) but enable the simulation of larger objects for longer times. Small yet powerful computer stations, GPU cards, small-sized computer clusters and ever-improving algorithms on top of everything have made cutting-edge research in computational biophysics amenable to groups at all scales, from the single person to the hundred-unit teams. As of now, 90% of the data that existed in the beginning of 2018 were created in the last 2 years. 

All these advancements have tremendously contributed to push forward our understanding of the numerous, intricate, intermingled and multi-scale processes and phenomena that can be encircled in the broad definition of life. From the water self-protonization reaction spontaneously turning water into its charged constituents to the flux of red blood cells in the vascular stream, computer models are now numerous enough and sufficiently accurate, in spite of the obvious limitations and shortcomings deriving from the approximations they entail, so as to permit a remarkably deeper insight into the functioning of biological entities. Above all, these models are becoming increasingly predictive. 

The cosmic inflation of computational biophysics naturally has its inevitable downsides. We identify here the most prominent in the following issues:

• The distribution of immense treasures of data (molecular dynamics trajectories to name just the most obvious) which would otherwise remain confined in the laboratories that produced them. 

• The storage of data in a compact, reliable, secure protocol, to contrast the data loss due to hardware failures and outdated software. 

• The development of common procedures to rationalize data storage, avoiding data overflow and limiting the costs of backups. 

• The limitation of many redundant research efforts, due to the necessity of a given group to re-do the work of another just for the sake of obtaining those data which are needed as ‘input’ for further investigation rather than representing an objective themselves. 

• The reduction of the plurality of standards for input and output files, metadata, algorithms, etc., which often degenerate in a detrimental incompatibility between data and codes that would be otherwise sensible and useful to put in contact. This phenomenon creates quasi-closed communities of single-software users and prevents researchers from creating simple and effective pipelines or assemblies of algorithms to obtain new results. 

• The mitigation of research opacity, a consequence of the difficulty to access the raw data, metadata, input files and detailed documentation of procedures and algorithms of many works, as well as to reproduce their results. 

This last aspect is particularly worrisome, as it does not consist of a limitation of current approaches or a gap with respect to an otherwise achievable optimum; rather, it bears the risk of distorted, misguided and even intentionally falsified scientific behaviour. Indeed, alarming reports indicated that ‘bad science’ is becoming a prominent problem due to the current publishing format, in that the latter incentivizes publication for its own sake, e.g. by bringing ground-breaking claims to prominence while scarcely selecting against false positives and poorly designed experiments and analyses. The phenomenon is particularly grave if it is not unintentional, rather it originates from deliberate cheating or loafing. Normalized misbehaviour is generating an increasing deviance from ethical norms; furthermore, science is endangered by statistical misunderstanding. 

One of the worst consequences of dubious or opaque work is that it undermines the credibility and integrity of research as a whole, a phenomenon with dramatic societal consequences made even more critical by intentional scientific misconduct, for the detection of which a framework is currently missing. An intuitive yet simplistic measure of the dimension of scientific misconduct is given by the number of retracted papers, yet it is at best conservative, thus making the quantification of the cost of this phenomenon, for the academic community as well as for society at large, extremely difficult, if not impossible. 

Consequently, there is a growing urge for improving meta-research, that is, for instruments to evaluate and ameliorate research methods and practices. As is natural for a young and growing field, efforts to date are uncoordinated and fragmented. Even with the employment of ‘good practices’, a vast quantity of research output is not fully exploited or even goes wasted, with the file drawer problem —that is, to refrain from publishing evidence contrary to an author’s hypotheses—being one of the most representative issues. The lack of protocols, standards and procedures to grant wide data accessibility leads to substantial costs (in terms of personnel time, facility resources, research funds). 

A lively discussion between researchers and policy makers is ongoing at several intranational and international levels in order to reverse this trend. Among the most recent initiatives undertaken at the European level, it is worth mentioning the creation of the European Open Science Cloud (https://www.eosc-portal.eu), whose objective is to provide a safe environment for researchers to store, analyse and re-use data for research, innovation and educational purposes. 

Performing a very restrictive selection from a heterogeneous literature, we here consider and take the moves from two proposals in particular: Reformulating Science (methodological, cultural, structural reforms) and Science Utopia. With the suggestions therein in mind, and limited to the research fields of computational biophysics and chemistry, we consider a strategical priority to coordinate at a supranational level the availability of scientific data and software in order to increase research efficiency, reproducibility and openness. This is certainly not a novel idea and several successful examples of curated databases integrating biological information can be found in life sciences, such as the Genebank, UniProt and the Worldwide Protein Data Bank (PDB). An initiative like the one proposed here is the NoMaD project, which maintains one of the largest open repositories for computational material science. We believe that a global effort has to be undertaken in order to rationalize the complex ecosystem of software and the goldmine of information that is emerging from the collective, albeit often independent, work of a steadily growing research community. Moreover, the availability of the data would also contribute to boost the scientific progress in developing countries, where the scarcity of resources impairs the training of highly specialized researchers.

Autonomous Vehicles

'Ethics and Public Health of Driverless Vehicle Collision Programming' by Samantha Godwin in (2018) 86 Tennessee Law Review 135 comments

 Driverless vehicles present a core ethical dilemma: there is a public health necessity and moral imperative to encourage the widespread adoption of driverless vehicles once they become demonstrably more reliable than human drivers, given their potential to dramatically reduce automobile fatalities, increase autonomy for disabled people, and improve land use and commutes. However, the very technologies that could enable autonomous vehicles to drive more safely than human drivers also imply greater moral responsibility for adverse outcomes. While human drivers must make split-second decisions in automobile collision scenarios, driverless car programmers have the luxury of time to reflect and choose deliberately how their vehicles should behave in collision scenarios. This implies greater responsibility and culpability, as well as the potential for greater scrutiny and regulation. Programmers must make premeditated decisions regarding whose safety to prioritize in inevitable collision scenarios—situations where a vehicle cannot avoid a collision altogether but can choose between colliding into different vehicles, objects, or persons. 

With the recent bipartisan passage of the SELF DRIVE Act in the House and the rapid development of driverless vehicle technology, we are now entering a critical time frame for considering what priorities should govern driverless car inevitable collision behavior. This Article shall argue that prescribed “ethics” programing must be regulated by law in order to avoid the likely collective action problem of a marketplace that will reward “occupant-favoring” designs, despite a probable public preference (and arguable moral necessity) for occupant indifferent designs. This Article then considers a variety of different options for systems of driverless vehicle ethics programming. The most justifiable ethics programing system would be one where road users are discouraged from externalizing the dangers incurred by their transportation choices onto those whose transportation choices, if more widely adopted, would comparatively improve aggregate safety. This ethical programing system, which I term “incentive-weighted programing,” would promote public safety while also striking the most equitably justifiable balance between different road users’ interests.

Social Auditors and Medical Device IDs

'Assessing the Duty of Care for Social Auditors' by Tara Van Ho and Carolijn Terwindt in (2019) 27(2) European Review of Private Law 379–401 comments

This article analyses the appropriate duty of care under English tort law for social auditors towards third parties at risk of suffering damages from their negligence. After explaining the work of social auditors, the article considers whether the duty of care established for financial auditors is an appropriate one for social auditors. It concludes that a robust duty of care does exist for social auditors to guard against negligent audits that could harm workers at audited facilities. Due to differences between the financial and social audit, it further argues the duty of care for social auditors should be both broader than that required of the financial audit industry and non-delegable.

The TGA consultation on  Proposal to introduce a Unique Device Identification (UDI) system for medical devices in Australia  comments 

Demand is growing for improved traceability of medical devices in the supply chain. There is now worldwide recognition that, in the interests of patient safety and improved industry outcomes, the ability to unambiguously identify medical devices is essential. The development and implementation of the Unique Device Identification System (the UDI System) is widely acknowledged by the industry and regulators as an effective mean of ensuring timely access to complete, accurate and consistent information about medical devices. The International Medical Device Regulators Forum (IMDRF) - a group of the major medical device regulators from around the world, including Australia - is working to advance and strengthen international medical device regulatory frameworks, including those governing Unique Device Identification (UDI). IMDRF guidance documents (IMDRF UDI Guidance) provide a framework within which regulatory authorities and manufacturers can develop and implement their own UDI systems. The aim is to secure ‘a single, globally harmonized system for positive identification of medical devices’. Several international regulatory authorities have already implemented the UDI System, commenced work on implementation, or introduced enabling legislation. This includes authorities from the USA, Europe, Japan, Brazil and some members of the Asian Harmonization Working Party. 

This consultation 

We are exploring the feasibility of introducing the UDI System in Australia, including options for development of the UDI database (AusUDID). We propose to build on the work and experience of the IMDRF, the U.S. Food and Drug Administration (U.S. FDA), the European Union (EU) and other jurisdictions to inform the principles and design of a UDI System for Australia. The focus of this paper is to seek your feedback on:

• the proposal to introduce a Unique Device Identification (UDI) system for medical devices in Australia 

• whether the TGA or another body should be responsible for establishing and maintaining the Australian UDI database (AusUDID) 

• the potential scope of regulatory and legislative amendments required to establish the UDI System in Australia.

The introduction of any mechanism that allows unambiguous identification of medical devices in supply chains will impact many stakeholders significantly, especially if UDI is fully integrated into the Australian healthcare system. In recognition of this proposal’s complexity and broad impact, we plan to hold other consultations on further aspects of the UDI System’s introduction in Australia, including more detailed discussion on the regulatory requirements and seeking more targeted views on the impact of this change on specific groups of stakeholders. ...   

The UDI System 

The introduction of the UDI System is an important means of improving the identification and traceability of medical devices. UDI can provide significant support to other reforms designed to improve the effectiveness of pre-market assessments of medical devices and management of post-market safety-related activities. 

The UDI System consists of three interrelated parts: 

• the development and application of UDI globally harmonised standards 

• the requirement for manufacturers of medical devices to create and place a Unique Device Identifier on a device, its labelling and packaging 

• the requirement to enter specified information or certain data elements into a UDI database (UDID).

The Unique Device Identifier is a series of numeric or alphanumeric characters created by applying globally accepted device identification and coding standards. The Unique Device Identifier has two parts, the Device Identifier (UDI-DI) and Production Identifier (UDI-PI).   Any requirement to include a Unique Device Identifier will not override the Essential Principles requirements in the Medical Device Regulations relating to the safety and performance characteristics of medical devices; in particular, the requirement to provide patient information and instructions for use. A UDID contains essential information specific to the model of a medical device (UDI-DI and some key data elements) and allows access to this information. ... 

What are the benefits of implementing the UDI System? 

Identification of medical devices using the UDI System offers significant benefits throughout the supply chain, including:

• enhanced effectiveness of post-market safety-related activities, such as: faster and more accurate identification of problems; improved functionality in the reporting of incidents and adverse events; and more effective management of medical device recalls 

• a more robust pre-market assessment of medical devices due to the availability of better quality evidence-based data that is presented consistently and which includes post-market data and analysis 

• a reduction in medical and surgical procedural errors by allowing healthcare professionals and others to quickly trace a device and obtain vital information about its characteristics 

• enhanced analysis and research through the uniform documentation of devices in electronic health records, clinical information systems, registries and other data sources 

• a more robust and secure global distribution chain, which helps to tackle diversion and counterfeiting, and facilitates preparation for medical emergencies 

• better sharing of medical device information around the world.

For these reasons, we anticipate that the proposed establishment of the UDI System in Australia will benefit consumers, healthcare professionals, scientists, researchers, the medical device industry and regulators. 

International activities related to the UDI System 

The following provides an overview of international activities related to the UDI system. International Medical Device Regulators Forum (IMDRF) The IMDRF published UDI guidance: Unique Device Identification (UDI) of medical devices (UDI Application Guide) in December 2013. This document provided a high-level conceptual framework of the ‘basic core concepts’ of a UDI system. However, it has been recognised that further IMDRF guidance is required to better facilitate consistent implementation of UDI systems internationally. Accordingly, the IMDRF UDI Working Group—which is comprised of IMDRF members and representatives from relevant international industry bodies —was established in December 2017 to develop the UDI Application Guide. It is intended to be used as a supplement to the 2013 guidance and will provide the details and specifications necessary to ensure consistent development of UDI systems in different jurisdictions. A draft of the UDI Application Guide, together with other relevant information, was published in July 2018 for three months public consultation until 12 October 2018. .... 

Proposed implementation in Australia 

We propose that the UDI System in Australia be based on internationally harmonised principles as outlined in IMDRF UDI Guidance and informed by the work done by the EU, the U.S. FDA and other regulatory authorities. It is proposed that the Australian UDI System will apply to all devices placed on the market except custom-made devices and certain other medical devices. For example, in Australia some products are regulated as devices, while the same groups of products are not considered to be medical devices in some other jurisdictions. Also should UDI in Australia apply to Class I medical devices, particularly those other than Class I(m) (with measuring function) and/or Class I(s) (devices supplied sterile)? While it is highly desirable to align internationally, we seek stakeholders’ feedback on proposals for possible exemptions from UDI requirements. Sponsors will be responsible for ensuring their devices comply with the relevant requirements. Sponsors who import or supply medical devices in Australia will need to verify that, where applicable, device manufacturers have assigned a Unique Device Identifier to their devices and placed Unique Device Identifier carrier on the device, labelling and packaging as required. Sponsors must have an agreement with the manufacturer authorising the sponsor to include the key data elements and other relevant information in AusUDID. 

Proposed first actions 

It is proposed that the Therapeutic Goods Act 1989 and the Therapeutic Goods (Medical Devices) Regulations 2002 be amended to enable the establishment of the UDI System and include provisions to:

• allow the designation of Issuing Agencies (or Issuing Entities) and provide these with the power to issue Unique Device Identifiers Note: Further explanation on Issuing Agencies (or Issuing Entities) is provided on page 12. 

• prescribe requirements for the placing of Unique Device Identifiers on a device, its labelling and packaging 

• establish the AusUDID (potentially within the TGA infrastructure, see below) and link it to the Australian Register of Therapeutic Goods (ARTG). Consultation on the introduction of the UDI System will be a staged process.

The TGA will undertake further consultations on the proposal in order to clarify the design, scope, cost and information technology interface processes needed to implement the UDI System in Australia. The TGA is also aware that there are already views of different stakeholders that consider and discuss the need and feasibility of introducing UDI system in Australia.  

US Copyright Enforcement

'Copyright Enforcement in the Digital Age: When the Remedy is the Wrong' by Ben Depoorter in (2019) 66 UCLA Law Review 400 comments 

 Statutory damage awards are controversial in copyright law. To some, statutory damages are indispensable to enable the pursuit of meritorious copyright infringement claims that otherwise are too costly to pursue. Others are convinced that the availability of statutory damages tempts plaintiffs into asserting dubious infringement claims in order to obtain generous settlement concessions from risk averse defendants. In light of these contrasting viewpoints, we face the important policy question whether statutory damages should be redesigned for the digital age or, to the contrary, be retained in their current form, given the difficulties of enforcing copyrights online. 

This Article conducts a comprehensive empirical study of copyright statutory damages. An extensive examination of docket entries and case law reveals a widespread practice of overclaiming of remedies in copyright litigation. Although 80 percent of plaintiffs in all disputes claim that they suffered conduct that constitutes willful infringement, courts find willful infringement in just 2 percent of cases where plaintiffs obtain a favorable verdict. 

The findings suggest that remedy overclaiming in copyright serves strategic purposes. For instance, by highlighting the outer range of enhanced statutory awards in complaints, plaintiffs leverage the risk aversion of defendants to induce generous settlement concessions. In order to curb opportunistic uses of the statutory damages, I provide policy suggestions that would make remedy overclaiming more costly to plaintiffs and less threatening to defendants.

Depoorter argues

In 2008, several major record labels sued a handful of individuals for distributing music on peer-to-peer (P2P) networks. In the ensuing litigation, one file-sharer was ordered to pay $222,000 in statutory damages for sharing twenty-four songs online.  In another case, a jury imposed $675,000 in statutory damages for the sharing of thirty songs. A veritable copyright enforcement industry emerged. Targeting hundreds or even thousands of copyright defendants,  so-called copyright trolls have obtained quick settlements against users of P2P software. 

These lawsuits are enabled by U.S. copyright law’s statutory damages regime.  The Copyright Act does not require that a copyright holder provide evidence of harm from infringement in order to recover damages.  Once infringement has been established, a copyright holder can elect to receive a statutory damage award.  

Conventional wisdom holds that the system of statutory damages is indispensable to protect the interests of copyright holders. By eliminating the burden to prove harm, statutory damages enable the pursuit of meritorious infringement claims that otherwise would be out of reach for cash-strapped plaintiffs.  Independent photographers and designers, for instance, rely on the litigation-cost-reducing effect of statutory damages in order to obtain recourse against online infringements of their works by large corporations. 

 Additionally, by increasing the potential incentives for enforcement of copyright law,statutory awards help sustain the deterrent effect of copyright law. In recent years, however, this traditional perspective on statutory damages has been challenged by a much bleaker outlook. There is a growing understanding that statutory damage awards, as written into the Copyright Act in 1976, are a poor fit for the digital age. Because a statutory damage award is set for each individual infringed work,the total damages can add up significantly for online infringements that involve multiple works. For instance, even at the statutory minimum of $750 for each file, a user of a file-sharing network faces potential statutory damages of $360,000 when sharing forty songs. At the other end of the statutorily provided range, a plaintiff can claim enhanced damages of up to $150,000 against someone who, for example, watched an illegal live stream. Finally, due to the sheer amount of infringed works, digital intermediaries and online platforms face claims for astronomically high statutory damage awards. In one case involving secondary liability for operating a file-sharing network, the plaintiff demanded a statutory damages award of $75 trillion. Similarly, Google’s Book Search project exposed Google to potential liability of at least $4.5 billion. Critics observe that the availability of statutory damages tempts plaintiffs into asserting dubious infringement claims.  

These two contrasting viewpoints raise an important question: To what extent are statutory damages applied opportunistically by rent-seeking plaintiffs as opposed to providing cash-strapped copyright holders an avenue to pursue meritorious infringement claims? This controversy goes to the core of copyright enforcement in the digital age: Since 2008, copyright holders face massive amounts of copyright infringements online and have reacted by aggressively enforcing their rights. In response, copyright holders turned to automated enforcement tactics  that spit out takedown notices on a massive scale. Statutory damages play a crucial role in this issue. In copyright law, remedies dictate what claims actually get filed and litigated, and how those claims are evaluated by defendants. The familiar ideal is that the remedy should “fit the wrong,” but if the opportunistic narrative on statutory damages is correct, in copyright law the remedies actually create the wrong. As a matter of public policy, we face the important question of whether statutory damages should be redesigned for the digital age or, to the contrary, be retained in their current form, given the difficulties of enforcing copyrights online. 

Despite the controversy, systematic and comprehensive information on the use of statutory damage awards by litigants is absent, leaving us with many unanswered questions. We have little to no information on when and how copyright holders turn to statutory damages when challenging copyright infringers. To what extent do plaintiffs use statutory damages in an opportunistic manner? Or do statutory damages mostly serve the beneficial function of increasing access to justice for cash-strapped copyright holders? We also lack comprehensive information on the role of courts in mediating statutory damage claims by plaintiffs. Courts may enhance statutory awards when they deem the defendant’s infringement willful, but what definition or definitions of “willfulness” do courts employ when assigning enhanced statutory awards? Is it possible to distill a reliable set of factors from the pertinent case law? Answers to these questions are essential if the U.S. Congress is to effectively reform and adapt the Copyright Act to the digital age. 

 This Article examines the role of statutory damages in the copyright arena on the basis of an in-depth empirical analysis of docket records and case law. I conduct a docket study using a publicly available database containing docket entries, complaints, and pertinent documents from approximately one thousand copyright disputes, providing valuable new insights on the types of claims, plaintiffs, and defendants involved in statutory damage litigation. Also, I systematically analyze all  judicial decisions on copyright statutory damages by courts over a three-year period. The findings reveal that statutory damages claims are commonplace in virtually all areas of copyright law. Plaintiffs in copyright litigation request statutory damages in 90 percent of pleadings. Instead of seeking compensation forthe actual harm suffered from infringement, a large majority of plaintiffs turn to juries to set a statutory award. Not only that, copyright holders, even in industries that enjoy only weak copyright protection, almost universally claim that they are entitled to enhanced statutory damages due to willful infringement. However, courts rarely grant enhanced damages. Plaintiffs sought enhanced damages for willful infringement in 81 percent of all copyright disputes in the examined period, yet courts awarded enhanced damages in less than 2 percent of all cases that moved to verdict. The striking gap between the demand and supply of statutory damages, as well as several additional factors relating to nature of claims and subject-matter areas, undermine the credibility of the nearly ubiquitous claims of willful infringement by plaintiffs. 

These findings suggest that remedy overclaiming in copyright serves strategic purposes. For instance, by highlighting the outer range of enhanced statutory awards in complaints, plaintiffs leverage the risk aversion of defendants to induce generous settlement concessions. First, claims of willful infringement might be deployed by plaintiffs as a “bait-and-switch” tactic: By accusing the defendant of willful infringement, a plaintiff may appear more reasonable to the court and jury when subsequently requesting the application of damage awards in the regular statutory range and may hope to obtain a higher award overall. Second, by highlighting the potential application of enhanced damages for willful infringement, plaintiffs are able to intimidate risk-averse defendants into generous settlements. In doing so, plaintiffs are able to leverage the risk aversion of many defendants, especially individual defendants and small businesses. Plaintiffs might anticipate that accused infringers will prefer to avoid the uncertain outcome in the relief stage and thus settle the dispute out of court. The alternative for these defendants—incurring steep litigation costs to bring a successful defense—is dire. Infringement claims that are strong on the merits but include doubtful damage claims are especially vexing to accused infringers. Although the risk of a steep damage award might be minimal, the plaintiff is likely to win the case on the substantive merits. Because the Copyright Act enables a winning party to recoup his or her litigation costs byway of fee-shifting, the defendant also faces the unpleasant prospect of incurring considerable legal expenses. The anxiety of risk-averse defendants is further amplified by various features of copyright law, including the considerable discretion of juries in setting awards along the statutory range and the uncertainty about litigation outcomes. 

I provide several recommendations that would curtail opportunistic applications of enhanced statutory damages. First, Section 505 of the Copyright Act could be revised so that courts are able to take away from prevailing plaintiffs the benefit of fee-shifting if they overstated the damage claim. Second, courts should be enabled to award attorney fees against a prevailing plaintiff who engaged in egregious overclaiming of the damage entitlement. Both approaches would make the abuse of the statutory damage framework costlier and induce more realistic claims for relief by copyright plaintiffs. Third, an alternative tactic could reduce the overall risk of abusive damage claims to defendants. This could be accomplished through various measures, including the formulation of judicial guidelines, reducing the scope of enhanced damages, and making statutory damages unavailable when evidence of the inflicted harm is readily available. By reducing uncertainty about the actual application of statutory awards in courts,these measures, or a combination thereof,would curb the more opportunistic and abusive practices, while retaining statutory damages as a crutch for cash-strapped plaintiffs with meritorious claims. 

This Article proceeds as follows. Part I describes the statutory damages framework under federal copyright law. Part II describes the background, motivation, and unintended consequences of statutory damages in copyright law. Parts III and IV describe the empirical studies and present their main findings. More specifically, Part III explores docket and court records, while Part IV looks behind the docket entries to examine the precedents set out in the case law. Together, both studies help to evaluate the credibility of damage claims by plaintiff against the considerations and practices adopted by courts. Part V provides policy recommendations.

NonPersonhood in Shang China

The fascinating 'Puppies for the Ancestors: The many roles of Shang dogs' by Zhipeng Li and Roderick Campbell in (2019) 17 Archaeological Research in Asia 161-172 comments

Current anthropological approaches to animals have noted that the contemporary Western categories of human and animal are historically particular ones, and that different ontologies can and do organize the categorical and practical relationships between beings in a variety of ways. The ritual use of dogs in ancient China illustrates this point well. At Anyang (ca. 1250–1050 BCE) dogs played a number of roles in the significant doings of both kings and commoners and occupied a unique position in the Shang web of being – patterning with humans in some practices and with other domestic animals in others. The surprising discovery that Anyang mortuary ritual dogs outnumber those found in other contexts and that they are almost exclusively juvenile individuals argues for both the development of the Shang ritual economy and at the same time its basis on more than just an equation of economic expenditure with status. Finally, an epigraphic and zooarchaeological contextualization of dog sacrifice reveals that the Chinese archaeological practice of equating sacrificial deposits with whole interments reveals only the tip of the iceberg and full understanding of animal sacrifice in the Shang and other early complex societies must consider the full range of zooarchaeological deposits and cultural practices involving animals.

The authors argue

 According to current evidence, dogs were the earliest domesticated animal in the world, indeed, based on genetic analyses (Savolainen et al., 2002) dogs (Canis familiaris) were domesticated from the wolf (Canis lupus) prior to the Holocene, with recent work claiming this process occurred around 15,000 BP (Larson et al., 2012; Frantz et al., 2016) or even earlier (Germonpre et al., 2009). They were also likely the first domesticates to appear in China - the earliest known remains coming from the Nanzhuangtou (Yuan and Flad, 2005. The earliest evidence of the ritual use of dogs, with 11 dog burials, comes from the site of Jiahu dating to between 9000 and 7800 BP (Henan, 1999, Zhang and Cui, 2013). 

This paper will trace the development of the ritualized use of dogs across the major centers of the Central Plains Bronze Age in the period from 1800 to 1050 BCE. We will separately examine trends in mortuary contexts and in sacrificial pits. These trends in the use of dogs will be compared with wider trends in ancient Chinese ritualized animals practices. For Anyang we will incorporate zooarchaeological and inscriptional analyses to enrich our understanding of Shang animal sacrifice and the place of dogs within it. We examine the age and survivorship of the dogs to understand wider dog raising strategies, and within those, the place of ritual dogs. From the oracle-bone inscriptions we will derive additional context concerning the roles of Shang dogs in society and in ritual. Putting all of these lines of evidence together, we will offer critiques of on how animal sacrifice has been studied in China and offer some suggestions for the future. 

... From this discussion of the uses of dogs in Shang China (ritualized or not), a number of points arise. Firstly, the understanding of sacrifice in Chinese archaeology of 2nd and 3rd millennium BCE derives from animal interment in pits interpreted through the unexamined projection of Anyang and later models. When sacrifice is recast less tendentiously as ritualized destruction (Bell, 2007; Campbell, 2012) the issue of the context and meaning of the ritualized phenomenon comes more clearly to the fore. Were the dogs and pigs in pits at Erlitou sacrificed to feed the ancestors, or was there some other purpose? Did they even have an ancestral cult at Erlitou (Liu and Hong, 2007)? Why pits? If we don't know any of these things (and we don't), then what is the significance of a ritualized deposit without other archaeological contextualizing data and a more systematic, integrated approach to ancient doings (Fowles, 2013)? Moreover, the case of dogs shows us that, at least at Anyang, the interment of canids in pits seems to have a number of purposes, including guards, companions, or offerings, and was directed toward a variety of recipients – spirits of the earth, sky, the four directions, or the dead. While it is true that not every time and place is endowed with equally rich contextualizing evidence, when sacrifice is used as a “black box”, it becomes counter-productive – giving researchers a false sense of content for something that is completely underspecified – leading away from, rather than to, understanding (Bell, 2007, Campbell, 2012). 

Thus, if the story of animal sacrifice in Chinese archaeology is largely one of things in pits, an issue even more problematic than the under-specification of “sacrifice” is the fact that whole interment of animals in the ground is unlikely to be representative of the ritualized use of animals in ancient China. From the example of Anyang we can see that there were a great range of ritualized destruction phenomena, most of which would not have resulted in the deposition of a whole or even dismembered animal in a pit. Looking at the example of dogs is especially instructive – on the one hand, seeming to pattern ambivalently between humans and livestock in terms of ritual roles (guards, death attendants, ritually expended lives vs. food for the dead), and, on the other, the contrasting age profiles of the mortuary and midden dogs at Xiaomintun makes clear the need for a holistic understanding of ritual and zooarchaeological phenomena. If whole animals in pits were likely related to ritualized activities at Anyang, the opposite is not necessarily true. If the Central Plains Bronze Age is characterized by bronze vessels for food and drink, and feasting events and the division of sacrificial meat are well-established phenomena of at least later Zhou practice, then it cannot be assumed that animal remains in middens (especially large domesticates) were not related to sacrificial activities – only that their deposition was not ritualized. Thus, if ritual needs a total socio-cultural context, so does animal use – from birth to exchange to consumption and final deposition. Indeed, previous work at Anyang has already suggested that large and most medium mammals were not raised locally (Li et al., 2014), and that there were specialized butchery and generalized post-butchery distribution mechanisms at the capital (Campbell et al. 2011). Again, the use of dogs is instructive here – not only do the royal inscriptions reveal that large numbers of dogs could be obtained on short notice, the preferential use of puppies in tombs minimally indicates the dog economy was multi-faceted and perhaps partially specialized. In general terms, the Anyang animal/meat economy was large and complex and the ritualized use of animals cannot be understood apart from it. If this was true of Anyang, it was also likely true of earlier centers, though the nature of their animal economies (ritualized or not) remains even murkier. 

This leads to another question raised decades ago by Tim Ingold (1994) – “what is an animal”? This is an ontological question that has to do as much with humans as animals and the fuzzy line between. To this we could add divine beings and the dead, for Shang animality was located along a fluid spectrum from the lowliest and least animate to the most potent and exulted beings (Campbell, 2014c, Campbell, 2018). The case of Shang dogs provides an especially instructive example of this fluidity of being. As noted above, dogs could both serve as pseudo-humans (in death, and perhaps in life) – guards, companions, hunters, and ritually expended lives - as well as food (for the living and the dead). In fact, the only animal with greater range at Shang Anyang was Homo sapiens – from deified royal ancestors to sacrificial livestock (Campbell, 2014c, Campbell, 2018). 

Nevertheless, if dogs were so good to think (and do) with at Anyang, it is not clear that this was the case at earlier Central Plains sites. Erlitou seems to have had a qualitatively different ritual regime, while Zhengzhou and Yanshi have relatively limited contextualizing evidence. Nevertheless, there is evidence of qualitative diachronic change in the nature of at least the mortuary uses of dogs as what seems to begin as an elite mortuary feature at Zhengzhou becomes a widespread aspect of non-elite Anyang burials, and is negatively correlated with tomb size. 

If, as we have been suggesting, the ritualized use of dogs was an ancient east coast tradition that became part of metropolitan Central Plains practices only with the expansion of the latter into the former, a future avenue of research should be focused on a holistic understanding of ritualized animal use in non-Central Plains societies. Indeed, the nature and role of regional traditions in the formation of the syncretic metropolitan cultures that we identify as the Chinese tradition is woefully understudied. In fact, the entire Central Plains Bronze Age ritual animal package can be unpacked and historicized, nuancing the current story of increasing focus on prestige animals concurrent with increasing socio-political complexity (Yuan and Flad, 2005). While the sequential centers of the Chinese Bronze Age do not really have comparable data sets, what we can see suggests that Erlitou, Zhengzhou and Anyang have qualitatively different ritual regimes, as if each mega-center was its own vortex and crucible of cultural transformation, pulling in regional traditions and creating new syntheses that lasted for a couple centuries before becoming only part of the next metropolitan order. Thus, the ritual interment of pigs lasted from the Central Plains Neolithic through the Bronze Age, but dogs were only added into the repertoire at Zhengzhou then intensified at Anyang. Moreover, if dog ritual came from the east, the ritualized use of cattle – appearing in numbers only in the Xiaoshuangqiao-Huanbei period (ca. 1400–1250 BCE) – most likely was a northwestern tradition (Cao, 2014), and horse burials – first seen in the Central Plains in the Anyang period – were clearly of exogenous, northern (ultimately Eurasian Steppe) origin. 

The startling discovery of the mortuary dog ages at Xiaomintun, Anyang not only overthrows the commonplace (but largely unstated) assumption in the Chinese archaeological literature that mortuary dogs were animals that had loyally served their masters in life, but links ritualized animal use to the larger phenomenon of miniaturization (He, 2006, Jiang, 2012), reduction and replacement in Chinese mortuary practice from the Anyang period down to contemporary Chinese funerary offerings of ghost money. Just as dogs were not just “any animal” among sacrificial offerings, so too they were not just “any thing” among grave goods – the puppies took part in the general ontology of Shang tombs among miniaturized ceramics, fake bronzes and unfinished jades, yet their meaning and function was related to their being “dogs”. Put another way, Shang sacrificial dogs and mortuary puppies, within their wider contexts, reveal the extent to which Anyang ritualized practices do not break along our logical lines of “animal”, “sacrifice” and “grave good”, but enrichen the anthropology of ritual with unsuspected complexities.

Gene Editing Reasons

'The ethics of genome editing in non-human animals: a systematic review of reasons reported in the academic literature' by Nienke de Graeff , Karin R. Jongsma , Josephine Johnston , Sarah Hartley and Annelien L. Bredenoord in (2019) 374(1772) Philosophical Transactions of the Royal Society B comments

 In recent years, new genome editing technologies have emerged that can edit the genome of non-human animals with progressively increasing efficiency. Despite ongoing academic debate about the ethical implications of these technologies, no comprehensive overview of this debate exists. To address this gap in the literature, we conducted a systematic review of the reasons reported in the academic literature for and against the development and use of genome editing technologies in animals. Most included articles were written by academics from the biomedical or animal sciences. The reported reasons related to seven themes: human health, efficiency, risks and uncertainty, animal welfare, animal dignity, environmental considerations and public acceptability. Our findings illuminate several key considerations about the academic debate, including a low disciplinary diversity in the contributing academics, a scarcity of systematic comparisons of potential consequences of using these technologies, an underrepresentation of animal interests, and a disjunction between the public and academic debate on this topic. As such, this article can be considered a call for a broad range of academics to get increasingly involved in the discussion about genome editing, to incorporate animal interests and systematic comparisons, and to further discuss the aims and methods of public involvement.

The authors comment

In the last two decades, a host of genome editing technologies has emerged that can edit the genome with progressively increasing efficiency and ease of use. These technologies are based on the use of sequencespecific engineered nucleases, such as Zinc Finger Nucleases, meganucleases, and Transcription Activator-Like Effector Nucleases (TALENs). In more recent years, genome editing was revolutionized by the emergence of Clustered Regularly Interspaced Palindromic Repeat (CRISPR) and the CRISPR-associated protein Cas9 (CRISPR associated protein 9). In parallel, new applications of these genome editing technologies have emerged, such as gene drives, which allow the rapid and dominant spread of gene alterations within a population or even a species. 

Overall, this new generation of genome editing technologies allows scientists to modify the genomes of non-human animals (from here on: ‘animals’) more precisely than classical transgenesis with comparably fewer off-target effects. Furthermore, engineered nucleases can introduce genetic changes without the use of foreign DNA. These genome editing technologies have a broad range of possible applications in animals, including to increase livestock productivity and disease resistance, create new animal models to study human disease, protect native species by eradicating invasive species, decrease or even eliminate vector-borne diseases such as malaria, and perhaps even resurrect extinct species. Comprehensibly, these technologies and their applications have sparked both excitement and apprehension, raising new questions on ethics and governance and generating significant debate in both academic and public spaces. 

Despite this ongoing debate, to our knowledge no comprehensive overview of the arguments raised in the academic discourse on genome editing in animals exists. Such an overview is a valuable contribution to the academic literature, as it provides insights into patterns of argumentation in the expert debate and can help uncover arguments that go unmentioned or are insufficiently conceptualized. It is particularly salient to study the academic debate since academic experts can have a strong influence on related policy and governance decisions. Moreover, insight into the academic debate is important for understanding whether it differs from the public debate and arguments. For technologies that have high societal impact, such as genome editing, it is important to bridge potential gaps between the public and academic discourse in the early phases of development. 

In this article, we present such a comprehensive overview by reporting the reasons for and against the development and use of genome editing technologies in animals as these have been mentioned in the academic literature. Subsequently, we critically assess the academic debate and identify perspectives, issues and arguments that are underrepresented in the existing literature.

After an identification of specific reasons they comment

To the best of our knowledge, this review constitutes the first systematic review of reasons for and against development and use of new-generation genome editing technologies in non-human animals as reported in the academic literature. Our review shows that a wide and diverse range of reasons is brought forward and provides a descriptive overview of these reasons, offering a starting point for subsequent further research and normative analysis. 

Importantly, many reasons mentioned in this review are not reasons for or against all uses of genome editing in animals. Instead, they point to possible conditions for responsible use of these technologies. For example, the fact that genetically modified mosquitoes could potentially have negative consequences by spreading the modified gene beyond the target population, could lead to the requirement that a first trial site be geographically isolated, such as an island . Our review also underlines that different ethical considerations may apply to different applications of genome editing in animals. From this point of view, the question to ask is not whether genome editing in general is ethically acceptable but under which conditions it could be. 

In what follows, we make four additional observations about the academic debate, and suggest areas for future research and analysis. In particular, we note a lack of disciplinary diversity in the authors shaping the academic debate, an underrepresentation of animal interests, a scarcity of systematic comparisons of potential consequences of using these technologies, and a disjunction between the public and academic debate on this topic. We will elaborate on these observations below. 

Critical appraisal of the academic literature 

Our findings provide insight into who is shaping the academic debate on the use of gene editing technologies in non-human animals. As Table 1 illustrates, while authors of different backgrounds are involved in this debate, the large majority are (mostly biomedical or veterinary) scientists, investigating the technical feasibility of different applications of genome editing in animals. Authors working in ethics, philosophy, and the social sciences are underrepresented. This lack of disciplinary diversity is particularly problematic as the debate moves from discussions of technical feasibility to (potential) real-world applications, in which academic experts will likely influence policy and regulatory decisions. To critically assess the applications of genome-editing in animals from different perspectives, a multidisciplinary and proactive evaluation of the technologies and their ethical and societal implications – for example through ethics parallel research – is essential. 

Our findings also illuminate characteristics of the specific reasons addressed in the literature. Given that this review concerns genome editing in animals, it is remarkable how few animal-related reasons have been put forward; most reasons for or against the use of genome editing in animals rest on human-related grounds. So far, little of the biomedical literature considers the welfare of (research) animals; for example, articles that mention off-target effects seldom consider whether these effects could have an impact on animal welfare. Similarly, both biomedical and ethical literature provide little reflection on species-specific considerations. Although the moral status and interests of non-human primates were raised, the moral status of other animals was rarely mentioned. Given that accounts of moral status are generally founded in sentience  and consciousness, the interests of other animals appear worthy of more attention within this debate. And while the relationship between humans and animals was brought up in several reasons, particularly those related to animal dignity, this relationship was never framed in terms of human virtues. Such an analysis might ask, for example, who we become when we use and alter animals in certain ways. Indeed, when it comes to ethical theory, we note that the most frequently reported reasons – to a large extent originating from biomedical literature – were consequentialist in nature, i.e. focusing on potential (positive or negative) outcomes of using genome editing technology in animals on human health, animal welfare or ecosystems. While an initial emphasis on consequentialism is consistent with general argumentative patterns around new and emerging science and technologies, other ethical theories are relevant to this debate and will also be necessary to understand and engage with public attitudes and concerns. 

Our third major observation is that surprisingly few articles engaged in a systematic comparison of the harms and benefits of the proposed application of genome editing compared to alternatives. This gap in the literature is noteworthy, as such systematic comparisons are necessary to draw conclusions about what would result in the best overall consequences. Such an analysis could draw on the principles of proportionality and subsidiarity. According to the principle of proportionality, potential benefits should be balanced against potential harms or risks; those that argue in favour or against (applications of) genome editing in animals ought to present an explicit comprehensive overview of the benefits, harms and risks in question and argue why the harms outweigh the benefits or vice versa. The principle of subsidiarity entails that a policy should only be used if there is no less harmful policy that would achieve the same result. This principle suggests that applications of genome editing ought to be compared to alternative policies in terms of potential harms and benefits, including the – often forgotten – benefits and harms of the status quo. In the case of gene drives, for example, potential ecological damage resulting from their use is a pressing concern, warranting a thorough inventory of related risks and harms. When weighing those risks and benefits, the principle of subsidiarity forces us – amongst other things – to balance the possible ecological damage of using gene drives to eradicate vector-borne diseases with the deaths that are now caused by these diseases and the ecological damage of using pesticides. This kind of analysis is consistent with calls from the scientific community to integrate comparative assessment of risks and benefits into the regulatory framework. Yet where some scientific reports define benefits in narrow economic terms, the principle of subsidiarity requires a broad definition of and metric for benefits that extend beyond economics. 

Finally, we observed a disjunction between the expert and public debate on this topic. Academic experts have made significant calls for public engagement with and debate about genome editing, particularly with regards to the possible use of gene drives. A study commissioned by the United Kingdom’s Royal Society explores public perceptions and the reasoning behind them. In both this study and the academic debate more generally, considerable weight is given to the potential for genetically modified animals to improve human health or (negatively) impact ecosystems. However, other public concerns regarding genome editing technologies are thus far underrepresented in or wholly absent from the academic literature, including the public concern for equity of access to genome editing technologies, questions about the just distribution of governmental funding of genome editing compared with other investments, and concerns about the commercialization of genome editing technologies. With regards to commercialization, members of the public have raised the worry that businesses could prioritize profit-making over the public good and could fail to provide a balanced representation of the benefits and risks of these technologies. The fact that these concerns are largely absent from the academic debate on genome editing in animals is particularly problematic given ongoing calls for public engagement, and raises interesting questions that relate to a broader discussion about what the rationale, form, and aim of public engagement should be. If the goals of such engagement are not merely to inform the public, but also to address societal challenges and to allow the public to be involved in shaping technological developments together with other stakeholders, then issues regarding commercialisation, distributive justice, and access to genome editing technologies should also be studied in the academic literature.

De-extinction

'Anticipating risks, governance needs, and public perceptions of de-extinction' by Rene X. Valdez, Jennifer Kuzma, Christopher L. Cummings and M. Nils Peterson in (2019) Journal of Responsible Innovation comments

 Advances in biotechnology may allow for de-extinction. Potential impacts of de-extinct species remain uncertain; they may improve ecosystem function, or hinder conservation efforts and damage socio-ecological systems. To better anticipate de-extinction’s outcomes, ethical dilemmas, and governance needs, we surveyed experts from multiple disciplinary backgrounds. We applied a mixed-method approach to our analysis, integrating quantitative responses of perceived outcomes with qualitative responses, to clarify and provide context. Overall, respondents indicated deextinction was more likely to induce hazards, not benefits. Reasons for this viewpoint included a ‘moral hazard’ argument, suggesting conservation policies could be undermined if society perceives that species need less protection because they can be revived later. Pessimistic views of de-extinction were linked to concerns about unclear development paths. Experts believed the public might be skeptical about de-extinction. Our results suggest future de-extinction efforts may benefit from collaborative efforts to clarify hazards and explore salient concerns among the engaged public.

The authors argue 

Advances in biotechnology may allow for the de-extinction of species. De-extinction is the re-creation of extinct species using methods from synthetic biology, cloning, genetic engineering, reproduction technologies, and stem cell research. Numerous species are currently being considered as candidates for de-extinction, notably the passenger pigeon and woolly mammoth. De-extinction research on passenger pigeons includes genome sequencing (Hung et al. 2014), with plans to integrate DNA from preserved passenger pigeons into the genome of band-tailed pigeons (Novak 2013). Similarly, research on the woolly mammoth includes genome sequencing (Palkopoulou et al. 2015) with plans to gradually add mammoth genes into Asian elephant embryos, creating hybrids with progressively more mammoth traits (Devlin 2017). 

Arguments in-favor of de-extinction suggest that de-extinct species will improve ecosystem function, satisfy a moral obligation to revive extinct species, and re-invigorate efforts for conserve biodiversity. The ecological benefits of reintroducing de-extinct species may be the most significant potential outcome of de-extinction (Shapiro 2015; Iacona et al. 2017; McCauley et al. 2017). Potential ecological benefits of de-extinction are purportedly similar to restoring locally extirpated species (Jørgensen 2013; Seddon, Moehrenschlager, and Ewen 2014). For example, reintroduction of musk oxen, hares, and marmots to Pleistocene Park in Siberia altered plant distributions, facilitating grassland restoration, and ultimately increasing biodiversity (Zimov 2005). Some researchers believe returning the woolly mammoth to the Siberian tundra might yield similar results (Shapiro 2015). As an act of restorative justice, reviving species driven to extinction by humans, such as the passenger pigeon, yields a moral good (Cohen 2014). This restorative act aligns with the goals of conservation biology, namely restoring ecological components and processes previously removed or damaged by human activities (Thorpe and Stanley 2011). Additionally, restoring animals like woolly mammoths may inspire great awe (Sherkow and Greely 2013) and lead to additional support for conservation. In contrast, arguments against de-extinction suggest that the process may be detrimental to conservation efforts and ecological systems, and rife with ethical dilemmas. Re-creation of extinct species may weaken conservation policies by providing a riskier alternative solution to preventing extinction (Pimm 2013). This moral hazard, or alternative solution, enables riskier behavior (Lin 2013), which is compounded by ecological change. Returning a re-created animal to its former ecosystem could be detrimental to the current, often different, ecosystem or to the de-extinct animal. For example, forests have been fragmented and degraded, and farms and urban systems have expanded in the historic passenger pigeon range (Greenberg 2014). If re-introduced, the bird may exhibit tendencies similar to invasive species (Sherkow and Greely 2013). Alternatively, a passenger pigeon may be unable to adapt to contemporary ecosystems. Would the creators of a de-extinct animal then be obligated to care for the de-extinct population in perpetuity? 

Ethical questions such as these extend beyond those considered during wildlife reintroductions (McCoy and Berry 2008) and include ownership responsibilities for deextinct animals (Carlin, Wurman, and Zakim 2013). In most contexts, wildlife are considered common property until captured in some way (Blumm and Ritchie 2005), but de-extinction challenges these norms. Products of de-extinction may be eligible for patents based on their novelty or the technical processes used to create them (Carlin, Wurman, and Zakim 2013; Swedlow 2015). The potential commercial value could be derived from exclusive rights to exhibit, or by creating pet markets. Institutions that exhibit animals such as zoos typically require permitting under the Convention on International Trade in Endangered Species of Wild Fauna and Flora, and, in the United States, most zoos are regulated by the Animal Welfare Act (Grech 2004). There is considerable uncertainty regarding whether de-extinct animals should be considered endangered, native, exotic, or native and whether they would receive the corresponding protection or management (Camacho 2015; Okuno 2017). Further, attempts to reconstitute genomes and create hybrids, may be viewed as hubristic or similar to playing god (Sandler 2014). Playing god connotes individuals transgressing fixed limits on human behavior often linked to creation, and the pejorative label has been levied at biotechnology since its inception (Dabrock 2009). Although humans have a cultural duty to maximize positive impacts and minimize negative impacts on the world, accusations of playing god may have moral weight when they refer to technologies used to alter the biology of living organisms with unacceptable or unpredictable consequences or violate duties towards moral agents (Dabrock 2009). Animal rights and welfare concerns further complicate de-extinction. Animals such as the woolly mammoth are presumably social animals (Shapiro 2015), and rearing them in isolation may be cruel. 

Other potential de-extinction efforts (e.g. gastric-breeding frog or the Xerces butterfly) may require fewer physical accommodations (Seddon, Moehrenschlager, and Ewen 2014), but would still require navigating issues of public support and outdated biotechnology policies (Kuzma and Tanji 2010; Kuzma 2016). In the United States, federal regulation of biotechnology has not adapted to advancing biotechnological methods and novel products; for example, a de-extinct animal may be regulated following protocol originally intended for animal drugs (FDA 2009). Guiding principles have been suggested for selecting deextinction candidates, by considering efficiency and feasibility (IUCN SSC 2016) and incorporating the 2013 IUCN Guidelines for Reintroduction and Other Conservation Translocations (Seddon, Moehrenschlager, and Ewen 2014). While these guidelines address many of the ecological risks involved in wildlife reintroduction efforts, such as ecological and socioeconomic impacts, disease risk, and feasibility, they assume opposition based on ethical principles will not matter, and that conservation policy will not inhibit deextinction efforts. Further, these guidelines do not fully address issues associated with unique biotechnologies, higher uncertainty related to environmental risks, and more conflict between stakeholder groups compared to decision-making groups in traditional wildlife reintroduction efforts. 

A more systematic assessment of de-extinction seems necessary to anticipate risk and improve governance. In situations of high complexity and uncertainty, like de-extinction, it is especially important to anticipate risks so that appropriate governance systems are in place before technological deployment (Karinen and Guston 2009). Anticipatory governance suggests building capacities in foresight, engagement, and integration between experts (natural scientists, social scientists, and humanities scholars) and organizations (government agencies, technology developers, publics) may lead to better decisions and increased public good (Barben et al. 2007). In the absence of data on risks and benefits, expert elicitation provides a method for engaging the mental models of experts (Morgan, Henrion, and Small 1990) in order to begin the process of identifying potential risks and responding to them upstream in innovation and governance systems (Stilgoe, Owen, and Macnaghten 2013; Barben et al. 2007). 

As a first step in anticipatory governance, this paper presents the first analysis of the potential environmental impacts of de-extinction, ethical dilemmas, and governance needs by eliciting experts’ opinions from multiple disciplines. We surveyed experts in the natural sciences, social sciences, and the humanities, who have been involved in technologies and policies associated with genetic engineering and synthetic biology. Experts on biotechnology issues are well suited to assess potential de-extinction impacts, dilemmas, and governance needs because of their experiences with biotechnology development and governance. The science of biotechnology continues to develop, but at least in the United States, biotechnology policy has not explicitly addressed new genetic engineering technologies like gene editing, gene drives, or de-extinction (Kuzma 2016). International frameworks may cover genetically engineered animals, such as the Convention on Biological Diversity and the Cartagena Protocol on Biosafety, but these have not been ratified by all nations with active de-extinction research programs (Vàzquez-Salat et al. 2012; Kuzma 2016). Public opposition to genetically engineered foods is highly political, varies internationally, and is potentially becoming more controversial over time (Frewer et al. 2013). Controversies also brew within the biotechnology field as some products and companies fail to live up to their own hype (Borup et al. 2006). Biotechnology experts working within these contexts have unique experiences and can provide valuable assessments for the nascent field of de-extinction. To better anticipate the environmental impacts, ethical dilemmas, and governance needs for de-extinction, we applied a mixedmethod approach to analyze quantitative responses regarding perceived risks and benefits with qualitative responses used to clarify and provide context. We compare participants’ perceptions of potential risks and benefits, highlight salient environmental and societal concerns, identify research and risk assessment needs for managing potential risks, and provide recommendations for de-extinction governance. This is the first study to our knowledge formally eliciting expert opinions about the governance of de-extinction. By conducting this study before viable, self-reproducing de-extinct species are developed, we hope to provide guidance to innovation and governance, promote environmental stewardship, and minimize unintended consequences

Entick again? Police Entry To Private Property

In O’Neill v Roy [2019] NTSC 23 the Northern Territory Supreme Court has considered whether NT police have the power under the Police Administration Act (NT) and the Domestic Violence Act (NT) to enter private property to ensure compliance with Domestic Violence Orders. It is a judgment of interest to privacy and procedure scholars who recall Semayne's Case and Entick v Carrington.

Mildren AJ held that absent a clear and express statutory power to do so there is no authority to enter private property of the occupier merely for investigating if a breach has occurred by the occupier or for gathering evidence of criminal activity by the occupier, in circumstances where the police have no reasonable belief that an offence is occurring or may be occurring, without an express invitation by the occupier.

The judgment states

The respondent, Ms Roy, was charged with a breach of s 120(1) of the Domestic and Family Violence Act. The complaint does not particularise which condition of the Domestic Violence Order it is alleged that she is said to have breached. The allegation appears to be that Ms Roy remained where Mr Johnson, the protected person, was living whilst she was intoxicated contrary to condition 2 of the Domestic Violence Order (DVO). The DVO, which came into force on 1 June 2017 and was confirmed for a period of 12 months, contained the following conditions:

The defendant Aileen Roy is now restrained from directly or indirectly: Approaching, contacting or remaining in the company of the Protected Person/s (sic) when consuming alcohol or another intoxicating drug or substance or when under the influence of alcohol or another intoxicating drug or substance. Approaching, entering or remaining at any place where the Protected Person/s (sic) is living, working, staying, visiting or located if consuming alcohol or another intoxicating drug or substance or when under the influence of alcohol or another intoxicating drug or substance. And must submit to a breath test and/or breath analysis when requested by police in relation to this order. Causing harm or attempting or threatening to cause harm to the Protected Person/s (sic). Intimidating or harassing or verbally abusing the Protected Person/s (sic). 

Ms Roy lived with her partner Mr Johnson in a unit (the premises) within a duplex building situated within a public housing compound. There was a perimeter fence around the whole compound. The fence did not have a locked gate. There was no curtilage-defining fence around the premises nor around the duplex building. Access to the front door of the premises was by a concrete path which led to an alcove within which was the front door. 

On 6 April 2018 the police were carrying out Operation Haven, described as conducting pro-active DVO compliance checks, by going to a person’s home to see if he or she was complying with their order. At about 1:22pm, three police officers arrived at the premises. One of them, Constable Elliott, knocked on the fly-screen door. He could see Mr Johnson sitting on a couch and Ms Roy lying on the floor. He called upon Ms Roy to come to the door. It is not clear exactly what words he used. His evidence was that “I called upon her to come to the door, for the purposes of a domestic violence order check.” Ms Roy came to the door and opened it. Constable Elliott told her that he would like to conduct a domestic violence check and asked her to submit to a breath test. He said that he noticed that when she got up from the floor, she was very lethargic, and when she approached him, he could smell a very strong odour of liquor on her breath, her eyes were bloodshot and she was slurring her speech a lot more than usual from when he had had past dealings with her. The machine he used, called a Draeger, gave a positive reading for alcohol. It is not clear on the evidence where exactly the Draeger test was administered, but there is no evidence that any of the police officers entered the unit through the door. I think that the inference is that it took place either on the doorstep or in the alcove. It is not disputed that the alcove was part of the premises occupied by Ms Roy and her partner. Ms Roy was then taken to the watch-house where she was requested to submit to breath analysis on five occasions but she did not give a sufficient sample, possibly he thought, because of her state of intoxication. Presumably she was technically under arrest after failing the Draeger test. The power to arrest her and take her to the police station for this purpose is said to be contained in regulation 7(3) of the Domestic and Family Violence Regulations. 

Constable Elliott knew Ms Roy. He had seen her two weeks previously engaging in what he called social order offences and warned her for possible breaches of her DVO. In fact she was taken to a sobering up shelter, but whether she was charged or not with any offences is not clear. He also said that he had seen Ms Roy with Mr Johnson at a bottle shop on a previous occasion when Mr Johnson did not have his basic card or any money. Constable Elliott said that Ms Roy was in control of that at the time, and that Mr Johnson asked for a bottle of water. He became suspicious that there was quite a bit of manipulation going on and as a result he made further enquiries and found out that there were eight other “incidents” before that day, although what they were was not explained. Constable Elliott also found out that on a previous occasion Ms Roy had stabbed Mr Johnson. When this occurred, and whether this was before or after the DVO was made, and in what circumstances, is not explained. Constable Elliott also gave evidence that he understood from speaking with Ms Roy on a previous occasion that she was Mr Johnson’s carer, and that Mr Johnson suffers from seizures. Constable Elliott said that he felt that if Ms Roy was intoxicated, Mr Johnson’s welfare would be compromised and that he might not be able to speak up for himself. He believed at the time that Mr Johnson may be the victim of “economic domestic violence”. I assume by this that Constable Elliott was referring to economic abuse: see the Domestic and Family Violence Act s 5(e) and s8. He said that he was exercising his power to require Ms Roy to submit to the Draeger test vide regulation 6 of the regulations. 

When the matter came before the learned Local Court Judge, his Honour was informed that there was a challenge to the admissibility of the evidence relating to the alleged breach. His Honour conducted a voir dire hearing at which Constable Elliott and Constable Dowie gave evidence. 

Constable Dowie said that his duties that day were to take part in Operation Haven which was a targeted domestic violence operation. He said: “We were conducting domestic violence compliance checks on people in the Katherine area who had domestic violence orders”. He was asked what power the police were exercising to go to Ms Roy’s home that day. He said: “We weren’t exercising any power to attend that specific address. We were just using tacit consent to enter the complex and approach the front door”. In cross-examination he agreed that the police had received no complaint of a potential breach of the order at the time they approached the residence that day. The submissions before the learned Judge 

Counsel for the prosecution argued that the police were entitled to enter the block of units, walk along the path to the alcove, enter the alcove and knock on the front door. To the extent that they needed permission of the occupiers, they had an implied licence to do so. Although it seems to have been conceded that the police could not have forced Ms Roy to come to the door, once she answered the door, and the police smelt alcohol on her breath, it was argued that they had the power under the DVO to require her to submit to the Draeger test. The DVO, which was in evidence, provided by condition 3, that she “must submit to a breath test and/or breath analysis when requested by police in relation to this order”. Alternatively, it may be that the prosecutor relied on s126 (2A) of the Police Administration Act which provides: A member of the Police Force may, by reasonable force if necessary, enter a place he believes, on reasonable grounds, that: (a) [not relevant]; or (b) a contravention of an order under the Domestic and Family Violence Act has occurred, is occurring or is about to occur at the place, and remain at the place for such period, and take such reasonable actions, as the member considers necessary; (c) to verify the grounds of the member’s belief. 

Written submissions were prepared by counsel for the defendant. Counsel also spoke to them briefly. In short, the defendant’s case was that the police had no legal authority to go to Ms Roy’s door and submit her to a breath test. It was put that the Domestic and Family Violence Act contained no such power, and the powers under the Police Administration Act arose only if the Police had reasonable grounds to believe that there was a contravention of the order. As to the latter, this did not authorise them to knock on the defendant’s door because up until then, they had no such reasonable belief. As to the possibility of an implied licence, it was put that where the legislature had carefully defined the rights of the police to enter private property, it was not for the courts to alter the balance between individual privacy and the power of public officials, citing Brennan J in Halliday v Nevill. The written submissions then addressed the reasons why the Court should exclude the evidence under s138 of the Evidence (National Uniform Legislation) Act. It is not necessary to refer to them in detail, save to say that a strong argument was put for excluding the evidence. 

At the end of the defendant’s counsel’s submissions, counsel for the complainant said that he wished he had had more than an hour and 15 minutes to prepare this matter. The learned judge offered the opportunity for him to put in written submissions by the next Thursday, but this was declined by the prosecutor because he had seven hearings the next day in Mataranka. No request was made for more time than “next Thursday”. The prosecutor then made oral submissions in reply. He did not address the issues raised by s138 of the Evidence (National Uniform Legislation) Act at all. 

The learned judge’s decision 

The learned Judge provided brief oral reasons for his decision three days later. After reciting the facts, His Honour held that the police had no power either under the Police Administration Act or the Domestic and Family Violence Act to attend at the private residence to check on persons of interest to ensure that they are complying with a domestic violence order. He further held that there was no basis for a request for the breath test as the police had exceeded their powers on the day in question. His Honour did not specifically deal with the argument that the police had no implied licence to knock on the door of Ms Roy and request her to come to the door. His Honour said that he excluded the evidence but gave no reasons for doing so. It was common ground at the time of the hearing of the voir dire that if the evidence were excluded that was the end of the case; similarly, if the evidence was admitted, the defendant would be pleading guilty. His Honour, no doubt with that in mind, found the defendant not guilty. 

The grounds of appeal 

The appellant’s grounds of appeal are as follows: (1) The learned Local Court Judge erred in determining the lawfulness of the attendance of police at Unit 6 of 41 Victoria Highway, Katherine by reference to whether they had a specific statutory power to attend at a private residence for a domestic violence-related purpose, rather than by reference to whether they had an implied licence to attend for the purpose of lawful communication with any person there. (2) The learned Local Court Judge erred in finding that the police did not have the power under the Domestic Violence Act to attend at a private residence to check compliance with the conditions of a Domestic Violence Order. (3) The learned Local Court Judge erred in finding that the police had no basis to request the respondent to submit to a breath test. 

Grounds 2 and 3 

It is convenient to deal with these grounds first. The appellant contended that the powers available to the police under s126 (2) (a) (sic) of the Police Administration Act (PAA) were not relevant because: the police did not purport to rely on these powers at the time; as the Police did not enter the private residence there was no need to consider whether the Police officer had a reasonable belief as to an offence or harm being caused. 

s126 (2A) of the PAA provides: A member of the Police Force may, by reasonable force if necessary, enter a place if he believes, on reasonable grounds, that: (a) a person at the place has suffered, is suffering or is in imminent danger of suffering personal injury at the hands of another person; or (b) a contravention of an order under the Domestic and Family Violence Act has occurred, is occurring or is about to occur at the place and remain at the place for such period, and take such reasonable actions, as the member considers necessary: (c) to verify the grounds of the members belief; (d) to ensure that, in the member’s opinion, the danger no longer exists; (e) to prevent a breach of the peace or a contravention of the order; or (f) where a person at the place has suffered personal injury, to give or arrange such assistance to that person as is reasonable in the circumstances. 

The definition of “place” in s116 includes “premises” which is also defined to include “a building or structure”, a “part of a building or structure” and “land on which a building or structure is situated”. I will leave to one side whether the definition of “premises” is sufficiently wide so as to include a person’s home, given the discussion in the cases to which I will refer later, for there to be clear language to authorize an intrusion into the privacy of one’s home, and assume for the purposes of the present argument that “place” does include a private residence, as well as any part of the property which is occupied by the person concerned. The evidence fell short of proving that the police had reasonable ground for believing that a breach of the DVO was occurring etc. in terms of subparagraph (b) when they entered the premises and knocked on Ms Roy’s door. This was properly conceded by counsel for the appellant. However, the argument that was developed was that the police had an implied licence to enter the premises and knock on the door and that once it became apparent that Ms Roy was intoxicated when she came to the door, the police could have exercised their powers under s126 (2A) even though they did not purport to do so. This depends on whether the implied licence existed, and, if so, on the lawfulness of the police in (a) requiring Ms Roy to come to the door in order to conduct a breath test and (b) whether there was power to conduct a breath test in the circumstances. I will deal with these considerations under the remaining grounds of appeal. 

Counsel for the appellant’s submission is that the power to enter the premises and knock on the door and request the individual to participate in a breath test is to be found in s21 of the DVA. There is no such power to be found in the express terms of the section. What s21 does is empower a court to make an order “imposing the restraints on the defendant stated in the DVO as the issuing authority considers are necessary or desirable to prevent the commission of domestic violence against the protected person”. S21 (1A) empowers a court to impose an “ancillary order” which “may require the defendant to take specified action”. The example given in the legislation is that a court could make “an order to the defendant to submit to testing to ensure compliance with an order prohibiting consumption of alcohol or certain drugs”. So far as is relevant to this case, s22 (1) empowers a court to include a “premises access order” restraining the defendant from entering premises where the defendant and the protected person live together, except on stated conditions. S22 (3) makes it clear that such an order can be made regardless of whether or not the defendant has a legal or equitable interest in the property. No doubt one of those stated conditions would include a condition such as is contained in condition 2 of the order in this case. S22 (2) goes on to provide that “before making a premises access order, the issuing authority must consider the effect of making the order on the accommodation of the persons affected by it”. 

In the present case, there is an “ancillary order” requiring Ms Roy to submit to a breath test when requested by police: see condition 3. However, the power to require an individual to submit to a breath test is governed by regulation 6 of the Domestic and Family Violence Regulations. Regulation 6 is in Division 2 of Part 3 of the Regulations. Reg. 4, which is in Division 1 of part 3 provides that: This Part applies in relation to a defendant if a DVO applying to the defendant: (a) prohibits the defendant from consuming alcohol or using a drug (other than a drug as prescribed by a health practitioner); and (b) includes an ancillary order requiring that the defendant submit to testing by an authorised person to monitor compliance with the prohibition. 

An “authorised person” is defined by regulation 6 to mean, inter alia, a police officer. [19] Regulation 6, which is in Division 2 of part 3 of the Regulations and therefore relates only to “ancillary orders”, provides: (1) A defendant must comply with: (a) a reasonable direction by an authorised person to submit to a breath test to assess whether the defendant may have alcohol in his or her breath; and (b) the directions given by the authorised person about submitting to the breath test. (2) For a direction mentioned in sub-regulation (1)(a) to be reasonable, it is not necessary that the authorised person suspects that the defendant has consumed liquor. 

Regulation 6 does not by its terms empower a police officer to enter a defendant’s private property or home for the purpose of administering a breath test. Regulation 4 relates only to a condition prohibiting consuming alcohol; it has nothing to say about a condition prohibiting being in the company of the protected person when intoxicated. However that may be, the requirement to comply with a direction arises only if the direction is reasonable. It was submitted by the appellant that lack of “reasonableness” in this context may relate to excessively invasive and frequent requests, or requests that a defendant cannot reasonably comply with. That may well be so but I see nothing reasonable about knocking on the door of a person’s home and directing a person to come to the door in order to conduct a breath test, particularly if the circumstances are such that s126 (2A) of the PAA do not apply and the police officer is a trespasser. To recognize that such a direction is reasonable would be to in effect enlarge the statutory powers given to police officers by s126 (2A). It was not contended that the police had a power to request a breath test because of condition 3 of the DVO. That condition must be understood in the light of regulation 6. It could not have been intended to empower a police officer to demand a breath sample in circumstances where regulation 6 did not apply. To hold otherwise would mean that a court could override the protection given, limited though it is, by PAA or by the DVO regulations. 

Ground 1 

The appellant’s argument starts with the proposition that police are not prevented from doing their work as police officers if all they are doing is exercising the same rights and opportunities which are available to citizens generally. So much may be conceded. I do not doubt, for example, that a police officer who is making enquiries from neighbours who may be potential witnesses to an offence, can enter private land and knock on doors and ask questions. It was submitted that police required no licence, express or implied, from the occupiers of any unit at 61 Victoria Highway to approach the front door. The argument was premised upon the fact that the land leading up to the front door was common property. However, this overlooks the evidence that the entrance to the front door was within an alcove which one steps into to approach the front door. Strictly speaking, the word “alcove” is a recess in a room or a garden, although I see no reason why it could not be used to describe a recess between the walls of the building to approach the front door. It is not clear whether it had a covered roof; if so, it would be more accurately described as a porch. During argument, counsel for the appellant was content to accept that the alcove was part of the tenancy occupied by Ms Roy and Mr Johnson. It was put that even if this were so, the police had an implied licence to enter the alcove to knock on the door. 

There was no evidence as to who held the tenancy; it may have been Ms Roy or Mr Johnson, or both of them. However, the facts were that they both lived there. It was their home. They were living together in a domestic relationship. I do not think it matters who held the tenancy. Both were in lawful occupancy of the tenement. 

I was referred to a number of authorities which dealt with the circumstances under which police have an implied licence to enter private property, particularly in the context of exercising powers to investigate offences. The argument of Mr Murphy for the respondent was that there is no implied licence from an occupier of premises to enter any part of the private premises for the purpose of finding out if the occupier is breaking the law. It was put that the power of police to enter such premises is carefully guarded by statute, and in the absence of an express statutory power, there can be no implied licence. I was referred to a number of authorities from Australia, New Zealand and Canada. 

Dealing first with the Australian authorities, the first in time is Barker v The Queen. Before leaving on a holiday, Mr Curl asked his neighbour, Mr Barker, to look after his house whilst he was away and told him where to find the key if he needed to enter. Whilst Curl was away, Barker and another man entered the house and removed certain items. Barker was convicted of burglary. The question was whether Barker, who had limited authority to enter the premises but entered the premises with an intent to steal, was a trespasser. After reviewing the cases, Mason J. said that the common law principle is “that a person who enters premises for a purpose alien to the terms of a licence given to him to enter the premises enters as a trespasser... If a person enters for a purpose outside the scope of the authority then he stands in no better position than a person who enters with no authority at all”. Counsel for the appellant submitted that in circumstances where the purposes of the alleged trespasser is twofold, and one of those purposes is within the scope of an implied licence, the licence is not abrogated by reason of an ancillary unlawful purpose, referring to a passage in the judgment of Mason J. where his Honour said that ‘if a person enters premises for a purpose which is within the scope of his authority, his entry is authorized; it is not made unlawful because he enters with another and alien purpose in mind”. Brennan and Deane JJ observed similarly that “unless the consent to enter is limited by reference to purpose, an entry which is otherwise lawful does not become trespassory because it is effected for a purpose of which the person giving the consent is ignorant and of which he would not have approved”. On the other hand, if the entry is limited by a particular exclusive purpose, an entry for the particular purpose as well as some other illegitimate purpose will result in a trespass. I understand that one reason for referring to this case is to show that the purpose of the entry and the extent of the licence to enter is relevant to whether the entry is an unlawful trespass, which is a question of fact. The majority of the court held that the trial judge was correct when he instructed the jury that if they found that Barker’s authority was only to guard, and not to steal, they should convict. 

Both parties referred me also to Halliday v Nevill.. In that case police officers saw a person they knew to be a disqualified driver reverse out of premises at 375 Liberty Parade, West Heidelberg and onto the street. The appellant saw the police car approaching and immediately drove back into the driveway from where he had come. The police parked in front of the driveway and entered the driveway of the premises and spoke to the appellant. He was then arrested for driving whilst disqualified. Whilst walking with one of the police back towards the police car, the appellant suddenly broke away and ran across the street to his own home at number 370. The police then pursued him into the house where a scuffle took place before he was overcome. He was then charged with resisting arrest and assaulting police. At first instance the magistrate found that the arrest of the appellant in the driveway of 375 Liberty Parade was unlawful because the arresting officer was a trespasser and dismissed the charges. As to the question of whether the officer was a trespasser the majority of the High Court found that the police officer had an implied licence from the occupier of the premises to be on the driveway, there being nothing in the facts to suggest that the occupier of 375 Liberty Parade did anything to negate or rescind any implied licence. However, as counsel for the respondent correctly points out, in that case the occupier of the premises was not the defendant, but in effect the defendant’s neighbour. 

Brennan J dissented. In a passage later referred to with approval by the High Court he said:

There is, of course, a tension between the common law privileges that secure the privacy of individuals in their own homes, gardens and yards and the efficient exercise of statutory powers in aid of law enforcement. The contest is not to be resolved by too ready an implication of a licence in police officers to enter on private property. The legislature has carefully defined the rights of the police to enter; it is not for the courts to alter the balance between individual privacy and the power of public officials. It is not incumbent on a person in possession to protect his privacy by a notice of revocation of a licence that he has not given; it is for those who infringe his privacy to justify their presence on his property. There may well be a case for enlarging police powers of entry and search, but that is a matter for the legislature.

In Munnings v Barrett the driver of a van had pulled into his daughter’s driveway. A police vehicle which was following him stopped in front of the driveway. There had been no chase and the police had not done anything to stop the driver whilst it was on the road. One of the officers required the appellant to submit to a breath test. The officer had no reason to suspect that the driver was intoxicated. Under the provisions of s7A of the Road Safety (Alcohol and Drugs) Act 1979 (Tas) police had a power to require any person who was driving a motor vehicle on a public road to stop and submit to a breath test, irrespective of whether or not the police had reason to suspect that the driver had been drinking. Cosgrove J. held that in the circumstances, the police officer had no authority to require the appellant to submit to the test, as the request was made on private land and therefore did not come within the provisions of the Act. An attempt was made to justify the police officer’s request based on an implied licence to be on the appellant’s daughter’s driveway, referring to Halliday v Nevill. Cosgrove J said:

In determining whether the licence ought to be implied in all the circumstances, including the nature of the driveway, the relationship between the citizens concerned and the property, and/or its owner, the time of day, the purpose for which a licence is sought to be implied, the nature of the power sought to be exercised (see Brennan J at 2 MVR at 172) and so on have to be considered. The saga of DPP v Smith (1961) AC 290 still stands as a caution against irrebuttable presumptions of fact. There is no presumption of an implied licence. Where it is found to exist, it must have a basis in the evidence, or at least in the common behaviour of citizens of our community. The learned magistrate seems to have imputed consent to the owner as a matter of law, requiring no evidentiary basis, but the licence is implied, not imputed. An imputation of a licence is a universal derogation from the property rights of the owner. Only Parliament can do that. I would not myself be prepared to infer that the defendant’s daughter, in these circumstances, must be taken to have consented to police entry on the property shown in D2. Of course, if there was no consent, express or implied, the police officers were trespassers and had no powers. 

In Fisher v Ellerton some dogs belonging to the appellant had menaced a lady whilst walking past the appellant’s premises. One of the dogs bit the lady on the leg. A complaint having been made to a ranger, the ranger sought and obtained a warrant to seize the dogs. The warrant was of doubtful validity. The ranger, accompanied by police, went to the premises of a Mr Gray. He parked in the driveway behind a vehicle which contained the dogs. Mr Gray was present, as was the appellant’s wife. The ranger told her that he wanted to seize the dogs and that he had a warrant. With the assistance of Mr Gray, three of the dogs were removed from the vehicle and placed in the ranger’s vehicle. In the meantime, the appellant arrived at the scene and he refused to allow the ranger to take the fourth dog. He attempted to prevent the ranger from taking the dog and assaulted the ranger. He was charged with impeding and with assault, and convicted in the Court of Petty Sessions at Karratha. On appeal to the Court of Appeal, the court held that the ranger had no statutory power to enter upon the land of Mr Gray to seize the dogs, but that he was entitled to enter the premises for the purpose of seizing the dogs pursuant to an implied licence from Mr Gray, following what fell from the majority in Halliday v Nevill taking into account the cautionary note sounded by Cosgrove J. in Munnings v Barrett. The reasoning of the Court did not depend on the fact that Mr Gray assisted the ranger to place the dogs into the ranger’s vehicle, because he knew that the ranger had a warrant. The Court concluded, after considering the legislation and the second reading speech of the Minister, that the intention of the legislature was to place the ranger on the same footing as if he were a police officer making an arrest, and in the absence of any evidence that Mr Gray would have terminated the licence if he had thought that the warrant was of questionable validity, the licence should be implied. It was noted that as the appellant was not the occupier, he had no authority to terminate the licence. However, there are obvious distinctions between this case and the present one in that the case involved the same powers of entry as police have to execute a power of arrest at common law, to be inferred from the legislative scheme in place, and it occurred not on the defendant’s land, but on the land of someone else. 

In Tasmania v Crane police received a complaint from the owners of land that someone was growing a poppy crop on their land without their authority. Upon attending the property, police saw a residence near one end of the poppy crop on land not belonging to the complainants. Although there were no vehicles there and no sign of life, the police entered the property to see if there was anybody present who could provide them with information as to who had been growing the poppies. Blow J. (as he then was) held that the police had an implied licence to enter the property for that purpose. When they arrived, the police noticed some cannabis in a 44 gallon drum outside the building, walked around it and peered inside. They entered the building through a window and found cannabis being grown inside hydroponically, left the building and then sought a search warrant. Subsequently, the police went to the accused’s home. On arrival police noticed what appeared to be light from another hydroponic system that was visible through a crack under a door. As a result, police sought a second warrant to search those premises as well. For technical reasons which are not relevant to this appeal, neither warrant was valid and the question was whether the evidence should be excluded. Blow J. found that the police, when they started to walk around the first building, were trespassers, and that they were trespassers when they entered it. As to the accused’s home, police had an implied licence to go to the door of the premises, but became trespassers by moving around outside the building looking for what they could see. This case is of little assistance in the circumstances of the present case, although it does demonstrate that police will generally have an implied licence to enter property which is not enclosed or prohibited from entry in some way and knock on the door to make enquiries from the occupier in relation to some matter which the police are investigating whether the occupier is a suspect or not. 

In Plenty v Dillon and Others Mr and Mrs Plenty were the occupiers of a farm. A complaint had been laid against their 14 year old daughter. A summons was issued to the child to appear. Non-personal service of the summons was effected by leaving it with her father. The child failed to appear and a fresh summons was issued. In addition, summonses were issued against the child’s parents. The girl’s father had made it clear by correspondence that if a summons was to be served, it had to be served by post. Nevertheless, police attended at the farm in an attempt to effect service. The appellant and his wife refused to accept the summonses. Police left them on the car seat in which the appellant was sitting. The car was within an open garage some distance from the dwelling. As the police were leaving the farm, Mr Plenty attempted to strike one of the police officer’s with a piece of wood. After a struggle, he was arrested and subsequently convicted of assaulting the police officer in the execution of his duty. As a result, Mr Plenty sued the police officers for damages for assault and trespass. The trial judge entered judgment for the defendants. That judgment was upheld on appeal. On further appeal to the High Court, the only question was whether the police were liable for trespass to Mr Plenty’s land. Mason CJ, Brennan and Toohey JJ held that at common law, the third rule in Semayne’s Case authorises the sheriff or his officer, where the process is at the suit of the King, in cases of great necessity or where the safety of the King and commonwealth are concerned, after request to have the door opened, and refusal, to break and enter the house and to do execution on his goods or take his body as the case may be. However, the rule applies only when the person making the entry is either to arrest or to do some other execution of the King’s process. Their Honours held that this did not apply to a summons to appear in a court. The Supreme Court had held that the statutory power to serve a summons carried with it the right to make such entry onto land as was necessary to effect service. In response to this argument, their Honours said: But a statute which confers a power to arrest is of a different order from a statute which prescribes the manner of service of a summons and which confers no power on a person to do a thing that that person is not free to do at common law. 

Gaudron and McHugh JJ considered the circumstances under which the common law recognised an implied right to enter premises in some detail. It is not necessary to repeat all of what their honours said, but their honours made it clear that “no public official, police constable or citizen has any right at common law to enter a dwelling-house merely because he or she suspects that something is wrong”. Of course, we are not here concerned with the question of police entering Ms Roy’s unit but it is indicative of what the answer might be if the question was: could they enter a person’s property and knock on the door in the same circumstances? Their Honours went on to remark:

A number of statutes also confer power to enter land or premises without the consent of the owner. But the presumption is that, in the absence of express provision to the contrary, the legislature did not intend to authorize what would otherwise be tortious conduct. 

Their Honours then considered and rejected a submission that the entry fell within the third exception to Semayne’s Case. Their Honours then said:

At this late stage in the development of the common law, it seems impossible to declare that for the purpose of serving a summons, a constable has a common law right of entry upon private property without the consent of the occupier. The general policy of the law is against government officials having rights of entry on private property without the permission of the occupier, and nothing concerned with the service of a summons gives any ground for creating a new exception to the general rule that entry on property without the express or implied consent of the occupier is a trespass. This provides support for the proposition put by the respondents that even if the police had an implied licence to knock on Ms Roy’s door, they had no authority as part of that licence to ask her to come to the door to submit to a breath test.

As to whether there was a licence to be implied by the statute authorising the issue and service of the summons, their Honours said: In terms, S 27 has nothing to say about the right to enter property. In Morris v Beardmore  Lord Diplock said that the presumption is “that in the absence of express provision to the contrary Parliament did not intend to authorize tortious conduct”. If service of a summons could only be effected by entry on premises without the permission of the occupier, it would follow by necessary implication that Parliament intended to authorize what would otherwise be a trespass to property. But a summons can be served on a person without entering the property where he or she happens to be at the time of process service. Of course, inability to enter private property for the purpose of serving a summons may result in considerable inconvenience to a constable wishing to serve the defendant. But inconvenience in carrying out an object authorized by legislation is not a ground for eroding fundamental common law principles. 

Counsel for the appellant submitted that if the police did not have the power to demand at any time that a person against whom a premises access order was made, must come to the door for the purpose of submitting to a breath test, the purposes of the order, which was made to protect Mr Johnson, would be incapable of being enforced. As was put by Mr. Dalrymple, these offences often occur behind closed doors. But I think that Mr Dalrymple has over-stated the position. Assuming that they had a right to enter the alcove and knock on the door, it does not follow that the police were unable to enforce the order. They might have asked for permission to enter the premises. If that had been refused, or if Ms Roy had told the police to go away, Mr Dalrymple conceded that the police could do no more and would have had to leave. If, when they knocked on the door, they were able to see through the door that Ms Roy was intoxicated, they might have been able to exercise their powers under s126 (2A) of the PAA. They might have used their powers under that section if Mr Johnson, or some other person, had contacted them and complained. As Woodhouse J. said in Transport Ministry v Payne in a passage cited with approval by Gaudron and McHugh JJ in Plenty v Dillon:

I am unable to accept the view that it is open to the courts to remedy a ‘flaw in the working of the Act’ by adding to or supplementing the provisions....Nor am I able to think that in a matter of this importance Parliament can have taken it for granted that basic rights of citizens were inferentially being overridden.

In a case somewhat closer to home, the High Court considered an appeal from the Court of Appeal of New South Wales in a domestic violence matter in Kuru v New South Wales. In that case the Crimes Act 1900 (NSW) made provision for entry in cases of domestic violence. The police received a report of a male and female fighting in a flat. Six police officers went to the flat. The appellant and his then fiancé who lived there had had a noisy argument. By the time the police arrived, the fiancé had left the flat with the appellant’s sister. When police arrived, the front door of the flat was open. Two friends of the appellant, who did not live there, were in the living room and the appellant was taking a shower in the flat’s bathroom. When the appellant came out of the shower, the police asked him if they could “look around” and he agreed. After looking into the bedrooms, the police asked to see “the female that was here”. The appellant told the police that she had left and provided them with a telephone number. He then asked them to leave, but the police did not do so. The appellant then jumped onto the kitchen bench. After he got down he moved towards one of the police with whom he made contact. A violent struggle ensued following which he was arrested. He later brought proceedings against the police for damages for trespass to land, trespass to the person and false imprisonment. To some extent the case turned on the statutory powers contained in the Crimes Act which the High Court (Heydon J. dissenting) found did not authorise the police to remain in the premises once the appellant had told them to leave. The majority of the Court then considered whether there was any common law justification. Gleeson CJ, Gummow, Kirby and Hayne JJ said:

As was pointed out in this court’s decision in Plenty v Dillon, it is necessary to approach questions of the kind now under consideration by recognising the importance of two related questions. First, a person who enters the land of another must justify that entry by showing either that the entry was with the consent of the occupier or that the entrant had lawful authority to enter. Secondly, except in cases provided for by the common law and by statute, police officers have no special rights to enter land. And in the circumstances of this case it is also important to recognise a third proposition: that an authority to enter land may be revoked and that, if the authority is revoked, the entrant no longer has authority to remain on the land but must leave as soon as is reasonably practicable. 

The argument for the respondent in that case was that where the police apprehend on reasonable grounds that a breach of the peace has occurred and unless they involve themselves may reoccur, or alternatively that a breach of the peace is imminent, they may enter private dwelling premises for preventative and investigative purposes, acting only in a manner consistent with those purposes only for so long as is necessary for those purposes. After referring to Halliday and noting that the implied licence is only for any legitimate purpose and to Thomas v Sawkins their Honours observed:

 It is to be noted that neither of these statements countenances an entry or remaining on premises for investigating whether a breach of the peace has occurred or determining whether one is threatened or imminent. Nothing else that was said in Thomas would support such a power and no reference was made to any decision that would cast the power so widely. 

After considering other English authorities, their Honour concluded:

Further, the state’s submission that police may enter for preventative and investigative purposes would, by reference to its “investigative purposes”, extend the power much further than the common law power given in the English cases. There is no basis for making that extension. Whatever may be the ambit of the power of police (or a member of the public) to enter premises to prevent a breach of the peace, the power of entry does not extend to entry for the purposes of investigating whether there has been a breach of the peace or determining whether one is threatened.

By analogy with the reasoning in Kuru v New South Wales in the passages above cited, going to Ms Roy’s door for the purpose of investigating whether or not she was complying with the DVO was outside of the legitimate purposes of implied entry to the defendant’s premises or any part thereof, including the front door. 

In Howden v Ministry of Transport the question was whether a police officer could conduct a random breath test of a driver in circumstances where the driver had driven home and parked in his driveway when police stopped and asked him for a sample of his breath. The relevant statutory provisions gave the police no authority to enter the driver’s premises in those circumstances. The question was whether the police officer had express or implied permission to enter on the driver’s land. Cooke P said: 

Random stopping on the road, with a view to breath testing if a good cause for suspicion arises, is not a subject raised by the facts of this case. Entering private property for random checking of a driver whose driving or other prior behaviour has given no cause for suspicion is quite a different thing. It is a very considerable intrusion into privacy. In my opinion it would not be reasonable to hold that an occupier gives any implied licence to police or traffic officers to enter for those purposes. Most New Zealand householders, I suspect, if confronted with that question would answer No. Whether or not that suspicion is correct, it certainly could not be maintained that the answer Yes is required so clearly as to justify the Courts in asserting that such an implied licence exists. 

Somers J agreed with Cooke P. Bisson J agreed with the result, but His Honour held that the implied licence may only be exercised at a time of the day when it was reasonable to the lawful business to be conducted, and as this occurred at 1:30am it was not a reasonable hour to knock on the door for a lawful purpose and that therefore there was no occasion for the officer to enter under an implied permission The decision of the majority seems to be similar to the conclusion in Kuru’s case, in that it denied the implied right of entry onto private property merely to investigate whether an offence had been committed in circumstances where there was nothing suspicious about the defendant’s behaviour such as to connect him to a possible offence. 

I was referred to two subsequent decisions of single judges of the High Court of New Zealand which appear to contradict each other. The first is O’Connor v Police which concerned slightly different circumstances from those in Howden. In O’Connor, a bystander had seen the appellant in a very intoxicated state at 6am attempting to fill up his car from an unattended service station. The bystander rang the police who asked him to follow the driver of the car, which the bystander did. The driver, the appellant, drove home, parked in his property and went inside. Acting on the bystander’s information, the police attended at the appellant’s home shortly afterwards and knocked on his door. The constable asked the appellant if he had recently returned home. He said he had. She noticed a strong smell of liquor on his breath and that he was unsteady on his feet. She then required him to undergo a breath test which he failed. He was then taken to a police station to be breathalysed. A blood test was taken. Following completion of this he was asked if he had been driving and he agreed that he had. Fogarty J. considered Howden as well as a number of subsequent judgments of single High Court judges, noting that in some cases the view has been taken that if the police officer had lawful grounds for entering the property, such as a reasonable suspicion that the occupier or someone else on the property had committed an offence, there was an implied licence to enter the property. His Honour concluded that although the constable’s entry onto the appellant’s land was based on a reasonable belief that there was a person there who had been driving whilst intoxicated in breach of the law, she nevertheless had no implied licence to enter private land to check on whether the occupants or their guests had been driving whilst intoxicated. The reasoning depended on the question of the existence of the implied licence being looked at from the perspective of the occupier. This case goes further than is necessary to decide the issues in this case, as the evidence in this case is that the police had no such reasonable suspicion so far as Ms Roy was concerned. 

The second case is Police v McDonald  which is reported immediately following O’Connor v Police in the same volume of the law reports. The facts were similar. The driver of a vehicle had pulled into a drive-through window of a service station and paid for goods. The staff member noticed that the driver‘s faculties seemed impaired and there was a strong smell of alcohol on her breath. He called the police as she drove away, providing a description of her and the registration number of her vehicle. Shortly thereafter, police attended at the driver’s residence and knocked on the door. He then spoke to the respondent who, after initially making denials, admitted that she had recently driven the car which was parked in the driveway. He administered a breath test on the doorstep which she failed, and then she agreed to accompany him to a police station where she was administered, and failed, a breath test. She was then charged. The judge at the District Court followed O’Connor v Police and dismissed the charge. The appeal was by way of a case stated which challenged the correctness of O’Connor’s case. The appeal was heard by Dobson J. who held that O’Connor’s case was wrongly decided. It was argued that the implied licence should be looked at from the perspective of the public interest rather than from the perspective of either the officer or the occupier. Dobson J. distinguished Howden’s case on the basis that the reasoning in that case should be confined to the context of random questioning without any grounds to suspect that the occupier may have committed an offence, “in an era wherein a reasonable ground for such suspicion was a necessary precondition to requiring anyone to submit to a breath test”. 

Dobson J. said that it was inappropriate to test the scope of the implied licence by reference to standards notionally attributed to occupiers of residential premises (notwithstanding that this seemed to be the approach in Howden’s case) but his Honour went on to say, in a passage relied heavily upon by Mr Dalrymple: 

The notion of an implied licence is an invention of the common law to deflect the balance between respect for an individual’s right to privacy, and the public interest in enforcement of the criminal law. While the objective reconstruction of the expectations of the reasonable, objective participants in the position of both the occupier and the officer may be a useful tool in testing the boundaries of the licence when it is to be imputed in any particular situation, neither perspective necessarily dictates the outcome in any case. The existence of the implied licence is not contentious. It permits a police officer to enter private property so far as is necessary to engage an occupier, in the course of any lawful enquiry. Generally, that would involve going to the threshold of the premises on the property. Going further, typically into the premises, depends upon either consent being given by the occupier to the officer to do so, or the dialogue from the threshold reaching the point where the officer can justify exercising coercive powers. Realistically, consent is often treated as having been granted impliedly. 

There is considerable force in Mr Dalrymple’s submission bearing in mind that in order for police to demand a sample of breath from a person who is the subject of a DVO, that person may be required to submit a sample even if the police do not have any grounds to suspect that he or she has ingested alcohol: see reg. 6 of the DVO regulations. The other point to be made is that in McDonald, the licence was extended to going to the threshold of the premises, whereas in Howden the Court of Appeal found that there was no licence even to enter the driveway. However, the case is not authority for the proposition that police can enter a person’s premises, or knock on their door, to find out if the occupier has or is committing an offence, when there is no reason for believing or suspecting that the occupier has committed any offence. 

The implied licence to enter private property was considered by the Supreme Court of Canada in Evans and Evans v The Queen. In that case, the accused were charged with possession of marijuana for the purpose of trafficking. The police received an anonymous tip that the accused had marijuana growing in their home. Checks of criminal records, electricity consumption and by means of a visible perimeter search of the dwelling-house from public property disclosed nothing. The police then approached the door to the accused’s home and knocked, with the intent of sniffing for marijuana when the occupants opened the door. The police smelled marijuana and arrested the accused immediately. After securing the premises, the police obtained a search warrant based in part on smelling the marijuana when they went to the door. Upon searching the premises, marijuana plants and other drug-related paraphernalia were seized. The appellants were convicted and their appeal to the British Columbia Court of Appeal was dismissed. The Supreme Court of Canada also dismissed the appeal on the basis that although the search was unlawful, the evidence was properly admitted. In the course of their reasons, the majority Sopinka, J, (Cory and Iacobucci JJ concurring) considered the implied licence to enter the accused’s private property. His Honour said that the common law has long recognized an implied licence for all members of the public, including police, to approach the door of a residence and knock. 

His Honour said:

Clearly, under the “implied licence to knock”, the occupier of a home may be taken to authorize certain persons to approach his or her home for certain purposes. However, this does not imply that all persons are welcome to approach the home regardless of the purpose of their visit. For example, it would be ludicrous to argue that the invitation to knock invites a burglar to approach the door in order to “case” the home. The waiver of privacy interest that is entailed by the invitation to knock cannot be taken that far. ... In my view, the implied invitation to knock extends no further than is required to permit convenient communication with the occupant of the dwelling. The “waiver” of privacy rights embodied in the implied invitation goes no further than is required to effect this purpose. As a result, only those activities that are reasonably associated with the purpose of communicating with the occupant are authorised by the “implied invitation to knock”. Where the conduct of the police (or any member of the public) goes beyond that which is permitted by the implied invitation to knock, the implied “conditions” of that licence have effectively been breached and the person carrying out the unauthorized activity approaches the dwelling as an intruder. ... Although I accept that one objective of the police in approaching the Evans’ door was to communicate with the occupants of the dwelling in accordance with the implied invitation to knock, the evidence makes it clear that a subsidiary purpose of approaching the Evans’ door was to attempt to “get a whif [sic] or a smell” of marijuana. As a result, the police approached the Evans’ home not merely out of a desire to communicate with the occupants, but also in the hope of securing evidence against them. Clearly, occupants of a dwelling cannot be presumed to invite the police (or anyone else) to approach their home for the purpose of substantiating a criminal charge against them. Any “waiver” of privacy rights that can be implied through the “invitation to knock” simply fails to extend that far. As a result, where the agents of the state approach a dwelling with the intention of gathering evidence against the occupant, the police have exceeded any authority that is implied by the invitation to knock. ... In my view there are sound policy reasons for holding that the intention of the police in approaching an individual’s dwelling is relevant in determining whether or not the activity in question is a “search” within the meaning of s8 [of the Canadian Charter of Rights and Freedoms]. If the position of my colleague is accepted and the intention is not a relevant factor, the police would be then be authorized to rely on the “implied licence to knock” for the purpose of randomly checking private homes for evidence of criminal activity. The police could enter a neighbourhood with a high incidence of crime and conduct “surprise checks” of the private homes of unsuspecting citizens, surreptitiously relying on the implied licence to approach the door and knock. Clearly, this Orwellian vision of police authority is beyond the pale of any “implied invitation”.

The judgment finishes -

The conclusion that I have reached is that, consistently with the decisions of the High Court of Australia, the Court of Appeal of New Zealand and the Supreme Court of Canada, absent a clear and express statutory power to do so, neither the police nor anyone else has an implied invitation to enter private property, or the threshold of a person’s home, for the mere purpose of investigating whether a breach of the law has occurred or for the purpose of gathering evidence of criminal activity by the occupier, in circumstances where there is no basis for believing or even suspecting that an offence has been or is in the process of being committed, absent an express invitation by the occupier to do so. To hold otherwise would be an Orwellian intrusion into the fundamental rights of privacy that the common law has been at great pains to protect and would amount to a new exception to the common law. It is not for judges to create such an exception. That is the province of the elected legislators who are responsible to the people for their decisions. I therefore find that the police had no power to go to Ms Roy’s home and take a sniff of her breath and then require Ms Roy to provide a sample of her breath, that they were trespassers when they entered her alcove and knocked on the door. Consequently the evidence was unlawfully obtained.