Ethics

'Finding Fault?: Exploring Legal Duties to Return Incidental Findings in Genomic Research' by Elizabeth Pike, Karen Rothenberg & Benjamin Berkman in (2013) Georgetown Law Journal (Forthcoming) comments that

The use of whole genome sequencing in biomedical research is expected to produce dramatic advances in human health. The increasing use of this powerful, data-rich new technology in research, however, will inevitably give rise to incidental findings (IFs), findings with individual health or reproductive significance that are beyond the aims of the particular research, and the related questions of whether and to what extent researchers have an ethical obligation to return IFs. Many have concluded that researchers have an ethical obligation to return some findings in some circumstances, but have provided vague or context-dependent approaches to determining which IFs must be returned and when. As a result, researchers have started returning IFs inconsistently, giving rise to concerns about legal liability in circumstances in which notification could have potentially prevented injury. While it is clear that ethical guidance should not be automatically codified as the law, and that crafting ethical obligations around legal duties can be inappropriate, the ethical debate should not proceed unaware of the potential legal ramifications of advancing and implementing an ethical obligation to return IFs.

This article is the first to assess the legal claims that could be brought for a researcher’s failure to return IFs. The potential for researchers to be held liable in tort is still uncertain and turns largely on a number of factors — including customary practice and guidance documents — that are still in flux. Unlike medical care, which has a well-defined duty into which evolving scientific knowledge about genetics and genomics can readily be incorporated, a researcher’s duty to return IFs is less well defined, making it difficult to determine at the outset whether and when legal liability will attach.

This article advocates for a clearer, ethically sound standard of requiring that researchers disclose in the informed consent document which approach to offering IFs will be taken. This approach enables participants to know at the outset which findings will be returned, allows researchers to ascertain when their failure to appropriately return incidental findings will give rise to liability, and enables courts to make determinations that will produce consistent legal guidance.

Silences

The problematical Evidence Amendment(Evidence of Silence) Act 2013 (NSW) amends the NSW Evidence Act 1995 with respect to inferences that may be drawn from the silence during official questioning of persons accused of serious indictable offences. The new s 89A - Evidence of silence in criminal proceedings for serious indictable offences - specifies that

 (1) In a criminal proceeding for a serious indictable offence, such unfavourable inferences may be drawn as appear proper from evidence that, during official questioning in relation to the offence, the defendant failed or refused to mention a fact:

(a) that the defendant could reasonably have been expected to mention in the circumstances existing at the time, and

(b) that is relied on in his or her defence in that proceeding.

Subsection (1) does not apply unless:

(a) a special caution was given to the defendant by an investigating official who, at the time the caution was given, had reasonable cause to suspect that the defendant had committed the serious indictable offence, and

(b) the special caution was given before the failure or refusal to mention the fact, and

(c) the special caution was given in the presence of an Australian legal practitioner who was acting for the defendant at that time, and

(d) the defendant had, before the failure or refusal to mention the fact, been allowed a reasonable opportunity to consult with that Australian legal practitioner, in the absence of the investigating official, about the general nature and effect of special cautions.

It is not necessary that a particular form of words be used in giving a special caution. An investigating official must not give a special caution to a person being questioned in relation to an offence unless satisfied that the offence is a serious indictable offence. 

Drones

Today's Sydney Sun-Herald reports on use of drones by environmentalists -

An environment group is about to become the first in Australia to deploy surveillance drones to hunt for evidence of animal abuse on private property.

Animal Liberation will operate a drone, equipped with a powerful camera, above free-range egg farms, sheep farms and cattle yards to gather evidence of abuse.

And there appears to be little farmers can do to avoid coming under drone surveillance - flying drones above tree height is legal.

''Our legal advice is that if you're no nearer than 10 metres above ground, and you're not filming in anyone's houses, you can go ahead,'' said Mark Pearson, head of the animal welfare group.

''For example, if an egg producer says that they are free range, it would be helpful to check their claims by filming from above the property. You can gather the evidence, and there's no need to trespass. Or let's say we find a sheep dying from fly strike, we can record the location on a GPS and notify the authorities,'' he said.

The group bought the six-bladed, helicopter-type drone for $14,000 from a commercial supplier, using public donations, and has just completed a training program. Deployment will begin next week, with several farms and businesses earmarked for surveillance.

Farmers were dubious about being watched by drones.

''Many people in rural communities would see this as another attack on their peace of mind and an invasion of their privacy,'' said president of the NSW Farmers Association Fiona Simson.

She said farmers recognised that safe food meant healthy and happy animals. ''NSW Farmers does not condone any acts of animal cruelty and farmers are committed to high animal welfare standards,'' Ms Simson said.

Mr Pearson said the drone would not just be used to gather evidence of illegal cruelty, but would also film some routine, legal farm practices that might upset non-farmers. ''We're not interested in what farmers may be doing in their daily activities, and I completely respect people's privacy,'' he said.

''But there are lots of cases where farming activities cause horrible distress to animals - mulesing being a common example. People are entitled to know and see what's going on. So, even if it is lawful, if we think the public is going to be outraged or if we think they need to be informed, we will show it.''

I will be presenting a conference paper on this later in the year.

Another perspective is provided in 'Open Robotics' by Ryan Calo in (2011) 70(3) Maryland Law Review which argues

 With millions of home and service robots already on the market, and millions more on the way, robotics is poised to be the next transformative technology. As with personal computers, personal robots are more likely to thrive if they are sufficiently open to third-party contributions of software and hardware. No less than with telephony, cable, computing, and the Internet, an open robotics could foster innovation, spur consumer adoption, and create secondary markets. 

But open robots also present the potential for inestimable legal liability, which may lead entrepreneurs and investors to abandon open robots in favor of products with more limited functionality. This possibility flows from a key difference between personal computers and robots. Like PCs, open robots have no set function, run third-party software, and invite modification. But unlike PCs, personal robots are in a position directly to cause physical damage and injury. Thus, norms against suit and expedients to limit liability such as the economic loss doctrine are unlikely to transfer from the PC and consumer software context to that of robotics. 

This essay therefore recommends a selective immunity for manufacturers of open robotic platforms for what end users do with these platforms, akin to the immunity enjoyed under federal law by firearms manufacturers and websites. Selective immunity has the potential to preserve the conditions for innovation without compromising incentives for safety. The alternative is to risk being left behind in a key technology by countries with a higher bar to litigation and a serious head start.

HK Directors

The New York Times reports that the Hong Kong government has deferred plans by the Financial Services and Treasury Bureau to block public access to residential address information and the identity card numbers or passport numbers of company directors.

Those plans have been criticised as potentially facilitating money laundering and eroding Hong Kong’s profile as a regional financial cenre. They also, of course, erode corporate transparency that is of interest to observers of increasing corruption by party officials and 'elite families' in other parts of China.

The NYT comments that

Hong Kong makes it extremely easy to set up companies, so many individuals create them, even simply to own their residences. Extensive data are available only from the Companies Registry, which has long been open to the public, including online, although fees are charged for documents.

Many wealthy mainland Chinese, including from prominent Communist Party families, own companies in Hong Kong and have provided personal information to the Companies Registry. Banks, law firms and accounting firms routinely check the registry and gather data on mainland Chinese citizens to verify identities and detect fraud in initial public offerings and other transactions.

The Financial Services and Treasury Bureau said it would proceed this year with a long-planned rewrite of the city’s Companies Ordinance, but the rewrite would not include the contested provision to limit public access.

“Given the complexity of the issues involved and very diverse views of different stakeholders, we believe that the community should be given more time to build consensus on the issue” of public access, the bureau said in a statement sent to the Foreign Correspondents’ Club of Hong Kong, which was one of the groups that had protested the proposed curbs on public access.

Bloomberg reports -

Trade unions have used the database to track down runaway employers who owed wages, and small businesses use the information to conduct background checks on trading partners.

“In the 14 years in which I was the Registrar of Companies, I never received any complaints about these provisions or suggestions that they infringed directors’ privacy,” Gordon Jones, Hong Kong’s registrar of companies from 1993 to 2007, said in an e-mail. “I would hope, however, that these misconceived and bad legislative proposals are not only deferred but also repealed.”

Hong Kong, a part of China with its own legal system, makes company filings available online. There were 3.5 million company searches done in 2012 in the database of more than 1 million directors. ...

Bloomberg News last year relied on Hong Kong and Chinese identity card numbers found in filings to chart the business ties and assets of the families of Chinese President Xi Jinping, ousted Politburo member Bo Xilai, and the descendants of veteran revolutionaries, known as the Eight Immortals, who ran China after the death of Mao Zedong in 1976.

Six companies controlled by Li Ka-shing, Hong Kong’s richest man, backed restricting access to the information and asked that details contained in old records also be expunged when the government held public consultations in 2009 and 2010.

Constitutional Recognition

The Constitution (Recognition of Aboriginal Peoples) Amendment Act 2013 (SA) amends the Constitution Act 1934 (SA) to formally recognise Indigenous peoples as part of the ongoing process of reconciliation.

That recognition is -

(1) The Parliament on behalf of the people of South Australia acknowledges that - 

(a) the Parliament of the United Kingdom in 1834 passed a Bill called An Act to empower His Majesty to erect South Australia into a British Province or Provinces and to provide for the Colonisation and Government thereof and that by Letters Patent dated 19 February 1836 His Majesty established the Province of South Australia; and

(b) the making of the above instruments and subsequent constitutional instruments providing for the governance of South Australia and for the making of laws for peace, order and good government occurred without proper and effective recognition, consultation or authorisation of Aboriginal peoples of South Australia.

(2) Following the Apology given on 28 May 1997, the Parliament, on behalf of the people of South Australia - 

(a) acknowledges and respects Aboriginal peoples as the State's first peoples and nations; and

(b) recognises Aboriginal peoples as traditional owners and occupants of land and waters in South Australia and that -  (i) their spiritual, social, cultural and economic practices come from their traditional lands and waters; and (ii) they maintain their cultural and heritage beliefs, languages and laws which are of ongoing importance; and (iii) they have made and continue to make a unique and irreplaceable contribution to the State; and

(c) acknowledges that the Aboriginal peoples have endured past injustice and dispossession of their traditional lands and waters.

(3) The Parliament does not intend this section to have any legal force or effect.

Maritime Identity

The Maritime Powers Act 2013 (Cth), which gained assent last week,

•  establishes a system of authorisations under which a maritime officer may exercise enforcement powers in relation to vessels, installations, aircraft, protected land areas and isolated persons on certain grounds;
• provides for the enforcement powers available to maritime officers including boarding, obtaining information, searching, detaining, seizing and retaining things, and moving and detaining persons;
• provides for processes for dealing with things seized, retained or detained and persons held; and 
• creates offences for failure to comply.

The Ex Memo for the Bill last year indicated that the it

establishes a system of authorisations under which a maritime officer may exercise enforcement powers in the maritime domain. The comprehensive powers under the Bill will be available to enforce a diverse range of Australia's maritime laws, including in relation to illegal foreign fishing, customs, migration, quarantine and drug trafficking, as well as international agreements and arrangements at sea. The enforcement powers are framed in a manner specific to the maritime domain, an area which poses particular challenges to the effective enforcement of Australian laws. Enforcement operations in maritime areas frequently occur in remote locations, isolated from the support normally available to land-based operations and constrained by the practicalities involved in sea-based work. The unique aspects of the maritime environment merit a tailored approach to maritime powers, helping to ensure flexibility in their exercise and to assist maritime officers to deal with quickly changing circumstances and difficult and dangerous situations. The powers contained in the Bill are primarily based on powers currently available to operational agencies. The Bill does not alter operational roles, functions or responsibilities, nor reallocate existing resources, between agencies.

Part 1 of the Bill deals with preliminary matters, including commencement and definitions. It also provides a guide to the remainder of the Bill.

Part 2 of the Bill establishes a framework for the exercise of maritime powers. In particular, it provides for the `authorisation' of maritime powers. In most cases, an authorising officer is the most senior `maritime officer' available in a particular operational situation. A maritime officer is defined as a member of the Australian Defence Force, an officer of the Australian Customs and Border Protection Service, a member or special member of the Australian Federal Police, or other person appointed by the Minister for the purposes of enforcing particular domestic laws or international agreements.

This system of authorisations builds on existing operational practices, while providing a clear legislative framework for the authorisation of specific actions by maritime officers. An authorising officer can give an authorisation to a maritime officer to exercise enforcement powers in relation to vessels, installations, aircraft, protected land areas and isolated persons on a number of grounds. These include: where the authorising officer reasonably suspects that an Australian law has been contravened; to administer or ensure compliance with a monitoring law; or where the authorising officer reasonably suspects that an international agreement or decision applies.

An authorisation must be in force for the exercise of powers by a maritime officer to begin. The only exceptions are aircraft identification powers and the exercise of powers for the purposes of ensuring the safety of persons. Once an authorisation is in force, a maritime officer generally has access to the full range of powers set out in the Bill (described in Part 3). The maritime officer may exercise these powers as necessary for the purposes of the authorisation and for other purposes set out in the Bill. The exercise of maritime powers under an authorisation is subject to certain geographical limits. For example, maritime powers cannot be exercised in another country except in limited circumstances, such as with the agreement of that country. These provisions are consistent with limits under international and Australian law in relation to the exercise of maritime enforcement powers.

Part 3 of the Bill outlines the comprehensive set of maritime enforcement powers available to maritime officers. Enforcement powers are available with respect to: boarding vessels, installations and aircraft; interdiction; entering on land; obtaining information; searching things and people; examining and copying things; securing things, including weapons; seizing and taking possession of things; moving and detaining persons; detaining vessels, aircraft and other conveyances; arresting persons, and requiring persons to cease conduct that contravenes Australian law.

Part 4 establishes processes for dealing with things seized and retained, and detained vessels and aircraft, as a result of the exercise of maritime powers. The Bill imposes notification requirements and regulates the use and return of things.

Part 5 establishes processes for dealing with persons held in the exercise of maritime powers.

Part 6 of the Bill creates offences for failing to comply with particular requirements under the legislation.

NZ Media Regulation

The New Zealand Law Commission - counterpart of the ALRC - has today released a 394 page report [PDF] on The News Media Meets New Media: Rights, Responsibilities and Regulation in the Digital Age, building on the 2012 survey highlighted in a separate year's Public Perception of News Media Standards and Accountability in NZ report [PDF].

The report resembles those by Finkelstein and Leveson for Australia and the UK, highlighted in past posts in this blog. The Commission recommends establishment of a News Media Standards Authority (NMSA) to replace the New Zealand Press Council, the Broadcasting Standards Authority and the Online Media Standards Authority with a single independent standards body. The NMSA would serve as a one-stop shop for adjudicating complaints against all "news media" - broadcasters, newspapers, and online providers. Membership would be voluntary but would bring "significant benefits".

The Authority would be independent of both the state and the media industry in both its adjudication and governance structures, with no government or industry involvement in appointments. Membership of the NMSA would be voluntary. It would not be established by statute but would be indirectly recognised in statutory provisions that create news media privileges for publishers who chose to be accountable to the NMSA -

• current legal exemptions and privileges regarding the Privacy Act 1993, provisions of the Electoral Act 1993 (NZ), the Human Rights Act 1993 (NZ), the Fair Trading Act 1986 (NZ) and other statutes, eg benefits relating to court reporting. (Available only to those publishers who belong to the standards body .)
• Complaints resolution and mediation: the standards body would provide members with a quick and effective mechanism for dealing with privacy and defamation complaints that might otherwise end up in litigation;
• Public funding: only publishers that join the NMSA would be eligible for public funding for the production of news and current affairs and other factual programming;
• Reputational advantage: membership of the NMSA would provide a form of quality assurance and "brand advantage", with membership acting as the benchmark for determining other non-legal media privileges such as access to embargoed releases, access to the Parliamentary Press Gallery and admission to press conferences.

The Report addresses two questions:

• Who should be eligible to access the news media’s legal privileges and exemptions in an era when anyone can break and disseminate news and opinion?
• How should news media be held accountable for compliance with basic journalistic standards in the era of converged media?

The Commission identifies policy objectives as to -

• recognise and protect the special status of the news media, ensuring all entities carrying out the legitimate functions of the fourth estate, regardless of their size or commercial status, are able to access the legal privileges and exemptions available to these publishers;
• ensure that those entities accessing the news media’s special legal status are held accountable for exercising their power ethically and responsibly;
• provide citizens with an effective and meaningful means of redress when those standards are breached;
• signal to the public which publishers they can rely on as sources of news and information.

The Report concludes that -

we conclude that there is a strong public interest in adopting a broad-church definition of “news media” reflecting the need to nurture a diverse and robust fourth estate during a time of unprecedented commercial and technological disruption. This conclusion is based on an acknowledgment that the commercial model which has funded primary news gathering is under threat and that the institutional news media may not survive the paradigm shift brought about by the internet. At the same time the virtual elimination of barriers to publishing now makes it possible for any individual or organisation to undertake the core democratic functions assigned to the news media. This has the potential to strengthen democracy and increase the accountability of Parliament and the courts, and other powerful public and private institutions.

For this reason we conclude it is important to extend the news media’s special legal status to other publishers who are engaged in generating and disseminating news and commentary and in performing the other functions of the fourth estate – provided these entities are willing to be accountable to an independent standards body to ensure these privileges are exercised responsibly.

Second, from a consumer’s point of view we see no justification for retaining the current format-based news media complaints bodies which are largely based on outmoded distinctions between print and broadcast media. Within the next decade it is conceivable that there will be few if any printed daily newspapers. Over the same time period there is likely to be an exponential increase in the amount of audio-visual content accessed on-demand via mobile and other devices. In this converged environment consumers must be confident that consistent standards apply to similar types of content irrespective of the format or platform by which it is accessed.

It is significant in our view that many of New Zealand’s mainstream media, including Television New Zealand, Radio New Zealand and the Newspaper Publishers’ Association, accept that a single standards body for all news media is the logical consequence of convergence. As Fairfax Media stated in its submission to this review: “[n]ew technologies and convergence mean all major companies have multi-media operations and adjudicating complaints separately would be a nonsense”.

Independent research commissioned for this review also indicates that the New Zealand public sees merit in a single media complaints body: 52% of respondents to an online survey said they would “definitely support” the establishment of such a body and a further 36% said they were open to the idea.

The final question we address is whether this new converged standards body should have statutory jurisdiction over all New Zealand news media, as the Broadcasting Standards Authority currently has over broadcasters, or whether instead it should be a non-statutory body, like the Press Council, OMSA and the Advertising Standards Authority, whose members choose to be subject to their authority.

Our review has not found any evidence to challenge the mainstream media’s own assertion that New Zealand has an ethical and trustworthy news media. Although the Big Picture Research indicates some concern over the accuracy of the New Zealand media, it did not reveal a wholesale loss of confidence.

For this and for other reasons we discuss in chapter 7, we conclude that it is not in the public interest to impose statutory regulation on the New Zealand news media. Instead, in line with the principles outlined above, we believe accountability to an external standards body should be entirely voluntary.

However, as we outline in the following section, membership of our proposed new body will bring with it advantages which in our view will be of considerable value to those willing to be subject to its jurisdiction.