Midwives

ACMA, Australia's national broadcasting regulator, has concluded that Channel Nine Adelaide (NWS 9) has

breached the privacy provisions of the Commercial Television Industry Code of Practice 2010 (the code) by identifying a family involved in a home birth. It is the first television broadcast to breach the privacy provisions of the code since the new privacy guidelines were introduced in December 2011. 

The finding [PDF]  is a welcome sign that ACMA, an example of industry capture, is taking privacy protection more seriously.

ACMA states that

The news story concerned a deregistered midwife continuing to practise but it broadcast sensitive personal information about a newborn baby. The 16 February 2012 broadcast also contained identifying and intrusive footage of the complainant and his family inside their home and surrounds. 

‘The concept of being protected against someone intruding on your private space is a key tenet of the privacy guidelines,’ said ACMA Chairman, Chris Chapman. 

‘It is partly based on a person’s reasonable expectation that their activities would not be observed or overheard. In this case, footage in and around the complainant’s home was found to be an invasion of privacy,’ he said. 

The ACMA also found that the licensee failed the additional code obligation to exercise special care before using sensitive personal information about a child. 

NWS 9 has agreed to a tailored training program for relevant staff and to making a statement on its website providing a link to the ACMA’s investigation decision.

The NSW 9 site does not, as far as I can see, feature an apology … merely a link to the ACMA PDF.

What Price Privacy?

In a forthcoming article for Privacy Law Bulletin and book chapter I have commented that the 1,987 page report by the Right Honourable Lord Justice Leveson on An Inquiry into the Culture, Practices and Ethics of the Press at first glance seems a world away from Australia, a media world that features by naughty vicars and photogenic princesses, executives with a penchant for spanking, official corruption, allegations of child sex offences involving media personalities, and defamatory claims regarding other figures.

On second glance that world looks familiar, with disagreement during the past month about mining deals involving a NSW politician, the pasts of Julia Gillard and Julie Bishop, revelations about child abuse and payoffs involving religious institutions, another round of litigation by Australia’s richest woman involving public access to information about family trust arrangements, and claims by the pharmaceutical industry to the ACCC that transparency in undisclosed payments to medical practitioners would both be premature and breach practitioner privacy.

From an Australian perspective the Leveson Report is important for three reasons.

The first reason is that it looks backwards, documenting activity involving journalists and their agents that has seen some people go to prison, others facing criminal charges and questions about corporate governance in some of the UK’s most powerful organisations, including the Metropolitan Police and the British arm of Australia’s dominant media group – News Corporation. Some of those actors egregiously and recurrently breached a range of UK privacy law. Others appear to have condoned the breaches or failed to provide a corporate culture in which serious misbehaviour was identified and dealt with.

The second is that the report looks forward, recommending changes that address those privacy abuses and failed governance. Irrespective of Prime Minister Cameron's dismissal of Leveson’s recommendations, they will provide a benchmark for debate within Australia about media self-regulation at a time where analysts forecast the demise of one of the commercial television groups, the dominant commercial television group has been restructured, Ms Rinehart apparently hasn’t completely lost interest in Fairfax and Ten, and the Gillard Government has lost interest in both the Finkelstein Report and the proposed Privacy Tort.

The third reason is that the Leveson Report poses questions about public interest justifications for disregard of privacy. In essence, it suggests that we need to differentiate between public curiosity and public interest. Curiosity does not justify invasions of privacy. Leveson is emphatic that privacy should be enjoyed by public figures and by ordinary people alike, expressing concern that the victims of privacy abuses in the UK have often been the powerless rather than individuals whom Rupert Murdoch characterized as scumbag celebrities. There is a public interest in politics, public administration, corporate misgovernance, dangers to health, environmental dangers and other matters. That interest justifies responsible journalism; something that is different to entertainment.

Contrary to hyperbole over the past two weeks, Leveson does not call for a draconian restriction on journalism or media proprietors. By extension he would not crimp the implied freedom of political communication found by the High Court in Australia.

He does not call for a government agency to control media groups and journalists. His report does, however, distinguish between what is socially valuable and what is merely salacious or saleable. That differentiation should be borne in mind as courts, private sector bodies and the national Privacy Commissioner give effect to the Privacy Amendment (Enhancing Privacy Protection) Act 2012 (Cth) passed on 29 November and in effect from 14 March next year.

Investigation since initial public disquiet about hacking of a murdered teenager’s mobile phone has resulted in 17 arrests over interception of mobile phone messages, 52 arrests over payments to officials (primarily to police) and 17 arrests regarding other offences such as computer hacking and unauthorised access to personal records. It has resulted in the demise of the tabloid News of the World and the current breakup of the global News conglomerate into discrete print and broadcast groups, along with serious damage to News Corporation senior executives such as James Murdoch. As Leveson asked, in quoting two 2006 papers by the Information Commissioner, What Price Privacy?

The report deals with the culture, ethics and practices of the UK press, including questions about governance in the major print groups – misbehaviour within the Murdoch publications was particularly egregious but problems are evident in other publications such as the Mirror – and analysis of whether industry self-regulation has been effective. The  inquiry encompassed competition policy and, importantly, the UK regulatory framework for data protection.

Overall, the report emphasises the virtues of a free press and the importance of responsibility. It is a notably lucid, carefully written and in parts quite cautious document. Leveson’s condemnations thus have particular force. He questions governance within the News group and the credibility of some senior News figures. He characterizes the Press Complaints Commission (PCC) – counterpart of Australia’s Press Council (APC) – as lacking independence, having “numerous structural deficiencies” and “not actually a regulator at all”.

The APC is a voluntary body - like the PCC - with no statutory power. Its credibility was placed in question with the announcement in April this year that Seven West Media (one of the dominant players in the media sector, encompassing Pacific Magazines, Yahoo!7 and the Seven television network) was putting in place an 'alternative independent complaints-resolution body' that would "guarantee accountability of all the group’s publications". We are of course still waiting on details: the announcement indicated that Seven West would release full details of its plan in future, with no further comment until then.

Leveson notes “serious and systematic illegality and poor practice in the acquisition and use of personal information”, going on to conclude that existing criminal law is insufficient and that the Data Protection Act 1998 hobbled the Information Commissioner through “unnecessary and inappropriate barriers in the way of regulatory law enforcement and the protection of victims rights”. Public benefit rationales mean that privacy is not absolute but journalists, along with other actors such as the police, must act responsibly.

His report accordingly seeks to ensure a balance, by both providing a statutory underpinning for an independent press regulator and enshrining an explicit duty of the Government to uphold and protect freedom of the media. In particular, amendment of the Data Protection Act should provide for the Information Commissioner, in considering exercise of any powers regarding the media, to have special regard for the obligation in law to balance the public interest in freedom of expression alongside the public interest in upholding the data protection regime. Leveson indicates that more rigorous application of existing UK criminal law does not and will not provide the solution to governance problems.

 The report features a recommendation that the Civil Justice Council (the independent public body advising the Lord Chancellor) should consider increases in the level of damages regarding privacy, breach of confidence, and data protection. Leveson suggests that the Law Commission’s 1997 report on Aggravated, Exemplary and Restitutionary Damages should be adopted, with retention of exemplary damages (retitled as punitive damages). Those damages should be available in actions for breach of privacy, breach of confidence and defamation. Aggravated damages should only be awarded to compensate for mental distress, with no punitive element. Compensation under s 13 of the Act should encompass pure distress rather than being restricted to pecuniary loss.

 Leveson’s most controversial recommendations concern a new model of self-regulation. He suggests a voluntary “independent regulatory body”, established and organized by the industry (ie not a government entity) but subject to periodic review by an independent “recognition body”. The recognition body would not regulate individual journalists, publications or publishers but would certify whether the regulator had fulfilled certain “legitimate requirements” enshrined in a new statute. Leveson suggests that Ofcom (counterpart of Australia’s ACMA) should act as the recognition body, although a “less attractive alternative” would be to appoint an independent ‘Recognition Commissioner’ supported by Ofcom staff.

Commitment by the publishers would be encouraged through the potential for direct statutory regulation by a “backstop regulator” such as Ofcom – similar to the potential for ACMA to supersede auDA if there is a fundamental failure in Australian domain name regulation - and the likelihood of adverse costs awards in civil litigation.

Leveson comments that

I have made very clear that, by a very long way, my preferred solution, and hence my recommendation, is that the industry should come together to construct a system of independent regulation that could be recognised. If it does so, there will be no need for a backstop regulator.

However, if some or all of the industry were not prepared to adopt that position, I do not accept that they should expect the public to settle for less, much less escape standards regulation altogether. More significantly, if the possibility exists that a significant provider of press like services could avoid independent regulation without consequence, then there would simply be no incentive for an unwilling industry collectively to deliver it. My personal view, therefore, is that there may be a need for the realistic prospect of a backstop regulator being established.

The new regulator would not have the power to prevent publication. Instead it would promulgate and promote a Code of standards (including privacy), hear complaints and offer redress regarding alleged breaches (with power to investigate “serious or systemic breaches” and impose appropriate sanctions), and provide a quick and inexpensive arbitration service to deal with civil law claims.

The regulator would provide guidance on the interpretation of the public interest. Leveson suggests consideration of “a purely voluntary pre-publication advice service to editors who want support on how the public interest might be interpreted in a specific case before a decision is reached on publication”, without “notice to the subject of the story” and thus contrary to recent requests by Max Mosley for a ‘prepublication notice’.

Sanctions by the regulator – independent of the Data Protection Act 1998 – would be “appropriate and proportionate”, including financial sanctions up to 1% of turnover (with a maximum of £1m) on a member found to be responsible for serious or systemic breaches of the Code or governance requirements.

Given Leveson’s criticisms of inaction by media executives and difficulties facing the Information Commissioner he recommends that the regulator have power to conduct own-motion investigations and be strengthened though establishment of a whistleblowing helpline for journalists.

Participation in the regulator’s arbitration service would be a condition of membership. That service would be staffed by retired judges or senior practitioners with specialist knowledge of media law. Arbitration would rely on an inquisitorial model, with the process being be free for complainants. (Vexatious or trivial complaints would be struck out at an initial stage.) Importantly, under amendment of the Civil Procedure Rules a choice by a publisher not to participate in the new regulatory body would permit the courts to deprive that publisher of its costs in any privacy, breach of confidence or defamation litigation where the publisher was successful.

 Leveson also suggests that consideration should also be given to amending the Data Protection Act 1998 to formally reconstitute the Information Commissioner’s Office as an Information Commission. That is of interest locally, given concerns about the resourcing of the Privacy Commissioner function within the Office of the Australian Information Commissioner and perceptions that the OAIC is disengaged, evident in criticisms of belated and permissive responses to incidents such as the Telstra, Sony and Vodaphone data breaches. The Australian Commissioner now has enhanced powers but there is uncertainty about whether those powers will be used and used effectively.

 Australian responses to Leveson so far have been unenthusiastic or simply indifferent, with for example comments that media practive and governance in the UK are so very different as to have no relevance downunder. That is unsurprising given the vehemence with which the 2012 Finkelstein Inquiry report was received and condemnation by the commercial media (particularly News group outlets, where Andrew Bolt worried about “a sinister law, planned by a government with sinister motives”) and bodies such as the Rule Of Law Institute of the Government’s vague proposals for a privacy tort.

The notion of a privacy tort is not remarkable and does not seriously threaten freedom of speech, freedom of political communication or freedom of publishers (three categories sometimes conflated by advocates for the commercial media groups). Statutory provision of a tort regarding invasion or serious invasion of privacy has for example been recommended by the Australian Law Reform Commission, NSW Law Reform Commission and Victorian Law Reform Commission.

A reader of the Leveson report might reasonably conclude that individual journalists and media groups are not necessarily best equipped to self-regulate and that commercial pressures may well induce a race to the bottom. In a symposium last month I questioned some of the more alarmist expressions of concern that enhanced privacy protection in Australia would lead to a wave of frivolous litigation or fundamentally crimp investigative journalism in the public interest.

The history of confidentiality law, and more broadly Australian jurisprudence in cases involving the media over the past thirty years, suggests that Australian courts have coped effectively with litigation and founded their decision-making on public interest. Examples of that jurisprudence are Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 147 CLR 39 and Attorney General (UK) v Heinemann Publishers Australia Pty Ltd (1988) 165 CLR 30, where the courts have looked to the bases of civil society – in the same way that they have identified foundations for the implied freedom of political communication – and have not confused public curiosity with public interest.

Pranking and Privacy

The media brouhaha about the 2DayFM prank call to the King Edward VII Hospital - and the subsequent death of a nurse, which has elicited cries of outrage from UK publications with a history of egregious privacy abuses - can be addressed using three questions -

• Would you like your medical information disseminated via a national media broadcast.
• Do you believe that restriction of such information is appropriate?
• Is there a fundamental public interest - as distinct from public curiosity (not the same thing) - in unauthorised disclosure of your information or that of a celebrity?

The recorded 'prank call' by Sydney radio presenters Mel Greig and Michael Christian to the British hospital involved personal information about a celebrity patient. What is the compelling public interest - discussed in my symposium paper [PDF] last week on the Australian privacy tort and the Leveson Report - in release of that information?

Broadcasting of conversations that the nurses would have reasonably assumed were private, for example because there apparently wasn't identification that the presenters were pretending to be members of the patient's family, should raise concerns under Australian and UK law.

In the UK the activity echoes instances of blagging, addressable under s 55 of the Data Protection Act 1988. That Act includes the 'investigative journalism' defence that the offenders under s 55 acted "with a view to the publication by any person of any journalistic, literary or artistic material" (s 32) and in the reasonable belief "that in the particular circumstances the obtaining, disclosing or procuring was justified as being in the public interest" (s 55). Under s 68 of the Act 'health record' means any record that "(a) consists of information relating to the physical or mental health or condition of an individual, and (b) has been made by or on behalf of a health professional in connection with the care of that individual". 'Health professional' (s 69) includes "a registered medical practitioner" and "a registered nurse or midwife".

The statute centres on recorded - in particular electronic - personal information. Putting aside questions about whether the hospital comes under coverage of the Act as a 'data controller' we might speculate that the nurse/s provided information from their personal knowledge rather than from a record, so that they were not in breach of the Act.

Was there negligence by the presenters, in line with Wilkinson v Downton [1897] 2 QB 57? It was conceivable that the nurses would be reproved once the blagging was discovered, but a suicide?

The hospital conceivably failed in its duty - a statutory duty if it is a data controller - with responsibility for example to train and supervise staff and contractors. Posts in this blog have for example noted penalties imposed by the UK Information Commissioner's office on the Aneurin Bevan Health Board and St George’s Healthcare NHS Trust.

In Australia such a broadcast would breach the Surveillance Devices Act 2007 (NSW), specifically the prohibition in s 11 on unauthorised people publishing a private conversation obtained using a "listening device", ie a device that can "overhear, record, monitor or listen" to a conversation. What's the status when recording was undertaken within Australia of a call that involves people in the UK?

Given the permissive stance of the Australian Communications and Media Authority (ACMA) in dealing with misbehaviour by commercial broadcasters and the weakness of self-regulation under the Commercial Radio Codes of Practice we probably shouldn't expect much action from ACMA or 2DayFM's management unless there's an ongoing moral panic. (Given the corporate response to criticism of Alan Jones we might indeed expect the management to claim that the station and the presenters have been grossly victimised.)

The call apparently did not breach the specific privacy provisions in the industry codes because those provisions are restricted to news and current affairs programs, not entertainment.

Code of Practice 6 regarding Interviews and Talkback Programs specifies that a licensee must not broadcast the words of an identifiable person unless:

a) That person has been informed in advance or a reasonable person would be aware that the words may be broadcast 

b) In the case of words which have been recorded without the knowledge of that person, that person has subsequently, but prior to the broadcast, expressed consent to the broadcast of their words.

The UK nurses do not appear to have given consent after the recording had occurred but prior to the broadcast.

Consummation

The UK Government appears to have followed the path of discretion in deciding that courts will be left to deal with questions about consummation in the recognition of same sex marriage.

In Australia there is no requirement under the Marriage Act 1961 (Cth) for consummation. Section 23B of that statute identifies 'Grounds on which marriages are void'  -

 (a) either of the parties is, at the time of the marriage, lawfully married to some other person; 

(b) the parties are within a prohibited relationship; 

(c) by reason of section 48 the marriage is not a valid marriage; 

(d) the consent of either of the parties is not a real consent because: 

(i) it was obtained by duress or fraud; 

(ii) that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or 

(iii) that party is mentally incapable of understanding the nature and effect of the marriage ceremony; or 

(e) either of the parties is not of marriageable age; and not otherwise.

The Family Court accordingly advises that

The Court may declare a marriage invalid on the following grounds:

• At the time the parties were married, one of them was married to someone else. 

• The parties are in a prohibited relationship. 

• The parties did not comply with the laws in relation to the marriage in the place they were married. 

• Either party was not of a legal age to marry. 

• Either of the parties did not give their real consent to the marriage because: consent was obtained by duress or fraud, one party was mistaken as to the identity of who they were marrying or the nature of the ceremony, one party was mentally incapable of understanding the nature and the effect of the marriage ceremony.

The Court will NOT declare a marriage invalid on the following grounds:

• Non-consummation of the marriage 

• Never having lived together 

• Family violence or 

• Other incompatibility situations. 

In the UK the Matrimonial Causes Act 1973 provides that a marriage can be annulled if one of the couple has the incapacity to consummate it, or a man or woman has wilfully refused to do so.

Specifically section 12 states that

A marriage celebrated after 31st July 1971 shall be voidable on the following grounds only, that is to say—

(a) that the marriage has not been consummated owing to the incapacity of either party to consummate it; 

(b) that the marriage has not been consummated owing to the wilful refusal of the respondent to consummate it; 

(c) that either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise; 

(d) hat at the time of the marriage either party, though capable of giving a valid consent, was suffering (whether continuously or intermittently) from mental disorder within the meaning of  the Mental Health Act 1983 of such a kind or to such an extent as to be unfitted for marriage; 

(e) that at the time of the marriage the respondent was suffering from venereal disease in a communicable form; 

(f) that at the time of the marriage the respondent was pregnant by some person other than the petitioner; 

(g) that an interim gender recognition certificate under the Gender Recognition Act 2004 has, after the time of the marriage, been issued to either party to the marriage; 

(h) that the respondent is a person whose gender at the time of the marriage had become the acquired gender under the Gender Recognition Act 2004

In English common law consummation involves vaginal penetration, with courts historically endorsing Dr Lushington's differentiation in D E v  A G (1845) 163 ER 1039 between "ordinary and complete intercourse" (ie "the proper meaning of the term") from "partial and imperfect intercourse" even if they didn't embrace the good doctor's explanation that without the power to consummate "neither of the two principle ends of matrimony can be attained, namely a lawful indulgence of the passions to prevent licentiousness, and the procreation of children, according to the evident design of Divine Providence". 

It appears that the UK Government has decided to make same-sex marriage a mirror of opposite-sex marriage except for the religious ceremony, leading some observers to speculate that validity will be dependent on  consummation.

What's consummation, given that not all LGBTIQ people embrace the hetero penetration model?

Lushington stated that

… difficulty lies in the meaning of the term " sexual intercourse." How is it to be defined? This is a most disgusting and painful inquiry, but it cannot be avoided. 

Sexual intercourse, in the proper meaning of the term, is ordinary and complete intercourse; it does not mean partial and imperfect intercourse; yet, I cannot go to the length of saying that every degree of imperfection would deprive essential character. There must be degrees difficult to deal with; but if so imperfect as scarcely to be natural, I should not hesitate to say that legally speaking, it is no intercourse at all. I can never think that the true interests of society would be advanced by retaining within the marriage bonds parties driven to such disgusting practices. Certainly it would not tend to the prevention of adulterous intercourse, one of the greatest evils to be avoided. … 

In this difference, I think, lies the true distinction. If there be a reasonable probability that the lady can be made capable of a vera copula of the natural sort of coitus, though without power of conception I cannot pronounce this marriage void. If, on the contrary, she is not and cannot be made capable of more than an incipient, imperfect, and unnatural coitus, I would pronounce the marriage void. 

I will very briefly state my reasons. In the case first supposed, the husband must submit to the misfortune of a barren wife, as much when the cause is visible and capable of being ascertained, as when it rests in uudiecoverable and unascertained causes. There is no justifiable motive for intercourse with other women in the one case more than in the other. But when the coitus itself is absolutely imperfect, and I must call it unnatural, there is not a natural indulgence of natural desire; almost of necessity disgust is generated, and the probable consequences of other connexions with men of ordinary self control become almost certain. I am of opinion that no man ought to be reduced to this state of quasi unnatural connexion and consequent temptation, and, therefore, I should hold the marriage void. The condition of the lady is greatly to be pitied, but on no principle of justice can her calamity be thrown upon another. 

Adoption

'Adoptive Expectations: Rising Sons in Japanese Family Firms' (NBER Working Paper No. 16874, 2011) by Vikas Mehrotra, Randall Morck, Jungwook Shim, Yupana Wiwattanakantang comments that

The practice of adopting adults, even if one has biological children, makes Japanese family firms unusually competitive. Our nearly population-wide panel of postwar listed nonfinancial firms shows inherited family firms more important in postwar Japan than generally realized, and also performing well – an unusual finding for a developed economy. Adopted heirs’ firms outperform blood heirs’ firms, and match or nearly match founder-run listed firms. Both adopted and blood heirs’ firms outperform non-family firms. Using family structure variables as instruments, we find adopted heirs “causing” elevated performance. These findings are consistent with adult adoptees displacing blood heirs in the left tail of the talent distribution, with the “adopted son” job motivating star managers, and with the threat of displacement inducing blood heirs to invest in human capital, mitigating the so-called “Carnegie conjecture” that inherited wealth deadens talent.

The authors note in a pre-print version that

adoption remains common in modern Japan. Paulson (1983) reports that 30% of her survey respondents respond affirmatively that “an adoptee was among their relatives”. Comparative statistics are difficult because many countries keep adoptions confidential, but Yamahata (1977) estimates adoption far more popular in modern Japan than in any other country, with the possible exception of the United States. 

However, most U.S. adoptees are children, while Japanese adoptees are overwhelmingly adults. Moriguchi (2007) reports that 2.5% of U.S. children are adopted, the highest rate per capita in the world: 31.4 per 1000 births, or 127,000 adoptions (Child Welfare Information Gateway, 2004) in 2000. This compares with only 1.6 child adoptions per 1000 births in Japan that year. Of the 80,790 adoptions reported in Japan in 2000, only 1,718 were of children; and all but 362 of these were by grandparents or step‐parents. The other 79,072 adoptions, 97.9% of the total, were of adults by adults. 

Since 1988, the law permits two forms of adoption (yôshi). One form, special adoption (tokubetsu yôshi), resembles Western practices, and permanently transfers a child younger than six (eight in certain foster care cases) to adoptive parents. A special adoption severs all legal links between the child and its biological parents, and is designed to advance the welfare of a needy child (Hayes and Habu, 2006). This is a new, imported, and rarely used procedure. The courts approve only a few hundred each year in Japan – 521, 362, and 350 in 1995, 2000, and 2002, respectively. The traditional form of adoption, now called ordinary adoption (yôshi engumi or fûtsu yôshi), remains far more common. The adoptee is usually an adult male who, in return for an inheritance, agrees to carry forward the adopting family’s name. Both parties to the adoption transaction must be above the age of consent (over 15) or court approval is required – except for adoptions of one’s grandchildren or step‐children (Civil Code §798). The adopted heir must also be at least a day younger than the adoptive parent. Adoptees’ average age at adoption is over twenty, and the vast majority of adoptions registered in Japan each year between consenting adults (Bryant, 1990, p. 300). Elsewhere, adult adoption is vanishingly rare (Kitsuse, 1964). O'Halloran (2009) notes that Japan’s “… continuing tradition of providing for the adoption of adults, is without any comparable precedent among developed nations.” 

… More recent statistics show much higher rates of adult adoption than earlier in the postwar period, averaging 97 to 98% from 1985 on. Thus, of the 83,505 adoptions registered by Koseki offices in 2004, only 1,330 (2%) were of children. The higher rates of child adoption in the years immediately following the war are perhaps due war orphans. 

Ordinary adoption sanctifies the voluntary severing of most, but not all, ties to one’s birth parents and their replacement with fealty to one’s new parents. The adoptee may often remain in contact with his birth parents, and may even inherit from them. If the adoptive relationship is disrupted, the adopted child may return to his biological parents. 

Calling ordinary adoption a transaction is appropriate, for Hayes and Habu (2006, pp. 2‐3) explain that “in Japanese society there continues to be a vein of unsentimental pragmatism towards adoption arrangements. There is a fairly widespread view that it is ethically acceptable for parents to become adopters for worldly objectives, even if they do not intend from the outset, to love the child as their own.” Lebra (1989, p. 203) clarifies that “nurturance and intimacy were secondary or irrelevant to the mandate of professional succession, and often were completely absent from the adoptive relationship – even where the adoptee was destined to become the new head of the household.” 

Most ordinary adoptees are of adult sons (Paulson, 1984, p.165, 289) because the practice is designed to rescue biologically ill‐fated families, not to provide for a needy child.  Hayes and Habu (2006, p. 1) elaborate: “Adoptions can be used to reconstruct patriarchal families. Families with superfluous sons would pair them off in a combined marriage and adoption to families with daughters.” Since the incest law only proscribes sex between biological siblings, a daughter and adopted son may marry. That a term, muko yôshi, exists to describe a husband‐who‐is‐also‐an‐adopted‐brother indicates this to be an accepted and relatively commonplace form of adoption; and Paulson (1983) reports 55% of adoptions in 1981 to be of sons‐in‐law. Of course, if a desirable potential son is already married, an adult married couple can also be adopted in a single transaction. Parents who adopt adult sons either lack biological sons or desire better quality sons than nature provided. Although Nakane (1967) argues that families seldom disinherit biological son in favor of an adopted son, subsequent ethnographic work convincingly refutes this. Beardsley et al. (1959) report at least one instance of adopted sons superseding biological sons in the histories of 25% to 33% of rural families; Pelzel (1970) estimates its frequency at 25%, and Bachnik (1983) puts its incidence at 34%. Pre‐modern records indicate even higher frequencies (Bachnik, 1983, p. 163). 

The patriarch of a family business can thus adopt a new son, say a star manager, should his biological sons prove uninterested or incapable of honoring the family name. This occurs with some regularity (Paulson, 1984, 165‐75; Kurosu, 1998; Hayes and Habu, 2006, p. 2). In this context, translating yôshi as adoption might be confusing. Terms like protégé or successor seem at least as appropriate as adopted son – the standard translation. Similar relationships, between family business patriarchs and favored junior associates who become “like sons”, may well occur less visibly in Western countries. 

This echoes a linguistic ambiguity as to what constitutes a family versus a firm. A Japanese family business is referred to as a house (ie ...), as in the House of Mitsui; but ie can also mean family or household. This conflation also occurs in West, as with the House of Windsor and J.P. Morgan’s 19th century investment bank, the House of Morgan (Goodman, 2000, p. 20). Repackaging a business as a family is readily dismissible as “an ideological obfuscation created by those at the top of the economic hierarchy.” But something more is clearly going on where a top manager subsequently becomes the head of an adopting family as well as that family’s businesses. 

It is tempting to see adoption as a liberal adaptation allowing “competent individuals to surmount rigid social barriers” in Japan’s hierarchical society (Burke, 1962, p. 108‐9). Haynes and Habu (2006, p. 12) more warily suggest that “the overlap between family and business concerns, potentially at least, forms an integrated social ethos in which the aspirations of a powerless child can find a place.” Although, they caution against pressing this too far, noting that many ordinary adoptions are within extended families, Macfarlane (2002) notes that “those who were adopted were not necessarily or even primarily blood relatives” and cites several studies that support the view that “adoption became a mechanism for social mobility” in pre‐modern Japan. 

The Japanese government restricts adult adoption for fiscal reasons. The 1988 revision to the tax law prevents testators evading inheritance taxes via multiple adoptions. Thenceforth an adopter with one or more biological children may bequeath to one adoptee only, and an adopter lacking any biological children may bequeath to two adoptees (Nakagawa, 1991, 89). A parent might still adopt many sons in order to have a broader choice of successors, but since only one may inherit, the supply of eager second, third, and forth adoptees is likely to be meager. 

Foreigners periodically sought to change Japanese adoption practices, which seemed immoral to Chinese and Western sensibilities alike. Chinese legal imports, beginning with the Taiho Code of 702 A.D., sought to impose Confucian morals restricting adoptions to blood relatives (Mass, 1989, 9‐11, 25, 72). In seeming deference to European sensibilities, Japan’s imported Civil Code (§792‐3) mandates that the adopted child be at least a day younger than the adopting parent (Takenoshita, 1997, p. 9). 

Both sought to fit Japanese pegs into foreign holes. The Taiho Code was soon “improved”, and modern registries sometimes let a younger parent adopt an older child “by mistake” (Nishioka, 1991, pp. 232‐4). 

Foreign criticisms of Japanese adult adoption practices are not entirely groundless. Before the Great War, families adopted children as de facto slaves, sold by their biological parents; and brothel owners adopted their prostitutes. Draft dodgers became “only sons” of childless families, and thus escaped conscription (Paulson, 1984, 278‐9). Adult adoptions are also used to hide affaires or to circumvent money lending laws (Bryant, 1990). 

But Japan’s adult adoptions doubtless primarily evoke condemnation because they challenge the conventions of other cultures. Elsewhere in East Asia, adoptions are a duty of blood relatives, but “the more rigid forms of Confucianism have not constrained non‐relative adoption in Japan to nearly the same degree as elsewhere” (Kaji, 1999; see also Bryant, 1990, n. 32). This shocked and appalled Confucian traditionalists, like Dazai Shundai (1680‐1747), who deplores Japan's “lawlessness”, and singles out its “barbarous” and “promiscuous” adoptions as “a major example of chaos” (Lebra, 1989, p. 185; quoting Kirby, 1908). In the same vein, the 19th century historian Shigeno Aneki (1887) compares the “evils” of adoption to those of imperial abdication (Lebra, 1989, p. 186). 

The above is a vast oversimplification, but conveys the gist of adoption practices as they affect Japanese family businesses. We distill two key economic implications. 

First, Japanese family businesses confronted with an heir who is incapable or ill‐disposed to take over the family business can readily adopt a more able son. Adoption lets family firms expand their successor searches beyond biological sons, and even beyond blood kin and in‐laws, to include virtually the same applicant pool a widely held professionally managed firm might tap. In theory at least, Japanese family firms ought to be able to meld such benefits as family ownership confers with the free‐ranging competition among potential successors that helps put the most able managers in charge of professionally‐run firms. 

Second, the threat of adoption may induce a greater work ethic in biological children, for “the eldest son too was sometimes forced out into the world, if a more competent younger or adopted son was appointed to succeed to the family property or rights” (Burke, 1962, p. 109). Adult adoptions may thus help counter the famous Carnegie Conjecture that inherited fortunes so deaden initiative and distort perspective as to virtually guarantee failure in running a great business.

Land

Reading the consultation paper regarding establishment of a national foreign ownership register for agricultural land, foreshadowed by the Commonwealth Government in October. The final design of the register "will take into account the need to improve transparency of foreign ownership in agricultural land without imposing unnecessary burdens on investors or duplicating work already undertaken by State and Territory governments".

In June this year the Government’s announced a departmental working group (Treasury; Department of Prime Minister and Cabinet; Department of Agriculture, Fisheries and Forestry; Department of Foreign Affairs and Trade; Department of Sustainability, Environment, Water, Population and Communities; Department of Regional Australia, Local Government, Arts and Sport; and the Department of Resources, Energy and Tourism) to "canvass the issues and consult with the community on the development of a national foreign ownership register".

All well, until you remember that although "the Australian Government has an interest in foreign investment and land management, State and Territory governments have primary constitutional responsibility for land management, including land titles for agricultural land". The working group will accordingly need to work with State and Territory governments "to consider elements of a national register, and discuss how the register could interact with existing land registration systems and processes".

Information from the register will supposedly better inform public debate through improved transparency regarding foreign ownership. That's problematical, given poujadist attitudes about 'ownership of the national farm' and the interaction of register - recording what has been sold - with the foreign investment regulatory regime (ie permission for land acquisition under the Foreign Acquisitions & Takeovers Act 1975 (Cth) and Foreign Investment Review Board regime) and the Government indicating that Australia "continues to maintain an open and welcoming approach to foreign investment".

The expectation is that

Any registration obligations under the register will be of an administrative nature. While it will not form part of the foreign investment screening process where foreign investors need prior approval from the Government before investing in certain Australian agricultural land, over time a register will assist in informing the Government and the community about emerging investment trends. 

 There is no definitive integrated national database of land ownership. One fuzzy indication is provided by the December 2010 Australian Bureau of Statistics Agricultural Land & Water Ownership Survey, in which the ABS estimated that 88.6% of agricultural land was entirely Australian owned at the end of 2010, with a further 5.9% of agricultural land being 'majority Australian owned'. Not all agricultural land is of equal value and the ABS has provided an estimate only. The Australian Bureau of Agricultural and Resource Economics and Sciences 2012 Foreign Investment & Australian Agriculture report categorised recent foreign buyers of agricultural land in three main groups

• agribusiness companies seeking to extend their activities up the supply chain to secure sources of supply;

• investment or pension funds seeking profits from owning and operating Australian agricultural land, but where those operations do not form part of any larger agricultural or food business; and

• purchases of farmland by foreign owned mining companies.

That report also noted that although there may have been an increase in foreign ownership of Australian agricultural land in recent years "this ownership trend has not always been upward", as "foreign investors sell as well as buy land, with foreign landholdings tending to expand and contract at different times". The 2011 ABS Agricultural Land & Water Ownership Survey found that over 90 per cent of water entitlements for agricultural purposes are entirely Australian owned.

One difficulty reflects different data collection systems for regulatory and statistical purposes. Some definitions of agricultural land classify the dirt according to the use/business activities associated with that land (eg the Foreign Investment Review Board, the Australian Bureau of Statistics, the Australian Taxation Office and the Australian Securities Exchange). Others classify land on the basis of its location (notably many State and Territory registers).

The paper comments that -

At the State and Territory level, only Queensland maintains a foreign ownership of land registration system, which is operated in conjunction with the land title registration system operating in that State. This registration system is focussed on all foreign acquisitions of land in Queensland rather than specifically on agricultural land. 

In Queensland, as in other States and Territories, all investors must register their acquisitions of land titles. 

The existence of different land registration and screening regulations across Australia opens the potential for duplication of data collection and hence the reporting burden on foreign investors. 

Each State and Territory already has well-established land registration systems and processes. There is not, at a national level, a land register or title system. Additionally, States and Territories also capture ownership information relating to water access rights within register systems. These registers do not currently capture foreign ownership. There is currently no national level water register or title system. 

The design of a national foreign ownership register for agricultural land will need to consider ways, if any, for business-to-government reporting processes to be standardised across all levels of government. To minimise the regulatory reporting burden, an important principle for the collection of the data, is that data is collected as a by-product of existing business processes. For example, this could include the re-use of data obtained through State and Territory land title systems to populate a register.

 Queensland is the only state that has a specific register for monitoring foreign ownership of land, under the Foreign Ownership of Land Register Act 1988 (Qld). That statute requires notification for all land rather than just agricultural land. The level of foreign ownership in that state appears to be low: around 2.6% of all land in Queensland as at 30 June 2011.

Establishment of the national register will need to grapple with -

• notification systems for land use  

• differences between states in requirements for registration of water rights

•  mechanisms for monitoring obligations to update the register eg on a change of control where no transfer occurs 

• registration of long-term leases (interests in land for the purposes of the Foreign Acquisitions and Takeovers Act 1975 (Cth) but not registered in Victoria).

US Declassification

From the Transforming the Security Classification System report to the US President by the Public Interest Declassification Board

As requested by the President, the Public Interest Declassification Board (the Board) researched and studied the security classification system in cooperation with the National Security Advisor to design a fundamental transformation of the security classification system. The Board sought to understand how classified records of every level of sensitivity are managed and how different users influence classification and declassification decisions at the front-end and the back-end of the system. The Board met extensively with stakeholders inside and out- side of government during its study: senior government officials, Executive departments and agencies (agencies), distinguished civil servants, the Congress, leading technologists, experts from public interest, civil society and transparency groups, historians, classifiers, declassifiers, and archival researchers. Its research led the Board to understand the challenges the system presents to all users and to solicit suggestions and ideas for its transformation. The findings of the Board are conclusive; present practices for classification and declassification of national security information are outmoded, unsustainable and keep too much information from the public. The prevalence of electronic records has made the current paper-based system of classification and declassification unworkable. Use of advanced information technology is crucial to achieving increases in efficiency and better balancing information security with government openness. However, there is little evidence that Executive departments and agencies (agencies) are employing or developing the technologies needed to meet these objectives. 

Reforms are essential if we expect to manage the increased volume of records, share critical information among agencies and live within available resources. Essential to such reforms must be improved integration of classification and declassification programs and better resolution of the inherent tension between keeping secrets and ensuring the openness required for an accurate historical record. 

This report describes the difficulties—both technical and cultural—we face in reforming the system and recommends practicable steps to overcome them and effect reform. The Board understands the many challenges facing agencies in today’s resource-constrained environment. Nonetheless, the measures in this report are critical to modernize a security classification program capable of protecting our nation and supporting fundamental democratic values and transparency. The Board recognizes there is disagreement among stakeholders with many of the recommendations in its report. Modernization is difficult and bureaucracies’ natural tendency is to maintain the status quo. These recommendations will succeed only with a determined implementation strategy and vigorous oversight backed by the President. The Board believes it will require a White House-led steering committee to drive reform, led by a chair who is carefully selected and appointed with specific authorities granted by the President. A White House-led Security Classification Reform Steering Committee, appointed by and accountable to the President, should manage the implementation of the reforms required to transform current classification and declassification guidance and practice. 

After extensive research and discussions with stakehold-ers in and outside Government, the Board has concluded that the current classification system is fraught with problems. In its mission to support national security, it keeps too many secrets, and keeps them too long; it is overly complex; it obstructs desirable information sharing inside of government and with the public. There are many explanations for over-classification: most classification occurs by rote; criteria and agency guidance have not kept pace with the information explosion; and despite the Presidential order to refrain from unwarranted classification, a culture persists that defaults to the avoidance of risk rather than its proper management. 

To address the concerns of excessive classification under present practice, the Board recommends:

• Classification should be simplified and rationalized by placing national security information in only two categories. This would align with the actual two-tiered practices existing throughout government, regarding security clearance investigations, physical safeguarding, and information systems domains. Top Secret would remain the Higher-Level category, retaining its current, high level of protection. All other classified in- formation would be categorized at a Lower-Level, which would follow standards for a lower level of protection. Both categories would include compartmented and special access information, as they do today. Newly established criteria for classifying information in the two tiers would identify the needed levels of protection against disclosure of the information. Using identifiable risk as the basis for classification criteria should help in deciding if classification is warranted and, if so, at what level and duration. 

• Classified national security information in the two tiered model would continue to be subject to declassification in accordance with the re- quirements of Executive Order 13526, “Classified National Security Information”. The two tiers should be defined and distinguished by the level of identifiable protection needed to safeguard and share information appropriately, and these protection levels would determine whether classification is warranted, at what level, and for how long. Classification guidance would clearly define levels of protection by identifying a specific consequence of release of the classified information and the potential harm to the national security of limiting the sharing of the information. The difficulty of applying the current concept of presumed “damage” during derivative classification would be replaced by a more concrete application of level of protection necessary for sharing and protecting. This change in guidance would reflect how classification is actually practiced by derivative classifiers—deciding how much protection is needed based on the sensitivity of the information to both protect and share appropriately. Determining a level of protection to facilitate or impede dissemination is more prescriptive in practice and would assist classifiers in making more accurate classification decisions. Applying this risk management practice by identifying the level of protection needed based on the sensitivity of the information, rather than potential damage if disclosed, should allow users to classify information at the lowest level of protection or to keep the information unclassified. Specific protections accorded intelligence and non-intelligence sources and methods should also be better-defined and -distinguished. 

• The Board recognizes that the adoption of a two-tiered model will pose greater challenges for those agencies whose internal practices are more dependent upon current distinctions between Secret and Confidential. 

• Classified information that is operational or based on a specific date or event should be automatically declassified without additional review or exemption when that operation or event passes. The records containing this perishable information should be marked as classified “Short-term” (or similar term) at the time of creation. 

• In order to effect the cultural shift implicit in these recommendations, guidance should assume that classification decisions are made in good faith and should afford a ‘safe harbor’ for classifiers who adhere to proper risk management practices and, when unsure, decide not to classify. Classification training should address the culture bias that favors classification, and often over-classification, through coordinated, consistent education that underscores the responsibility to not classify in the presence of doubt. 

As discussed in the technology section of this report, available technologies, such as context accumulation, predictive analytics and artificial intelligence, should be piloted to study their effectiveness on helping implement these recommendations and to engage users and garner their trust in a new system. 

Declassification is a complex and time-consuming process, typically performed in a culture of caution with- out much attention to efficiency and risk management. 

Sequential referral of classified records for review by each agency that claims an “equity” in the record takes a great deal of time. Agencies are reluctant to share their declassification guidelines, impeding efficiency that could be realized from greater interagency coordination and collaboration. Because declassification is not seen as a way to serve the national security mission, the public’s right to know what its government does is not well-served. 

The problem is growing. Agencies are currently creating petabytes of classified information annually, which quickly outpaces the amount of information the Government has declassified in total in the previous seventeen years since Executive Order 12958 established the policy of automatic declassification for 25 year old records. Without dramatic improvement in the declassification process, the rate at which classified records are being created will drive an exponential growth in the archival backlog of classified records awaiting declassification, and public access to the nation’s history will deteriorate further. 

To address this serious concern, the Board recommends streamlining the declassification process as follows:

• A process should be implemented for the systematic declassification review of historical Formerly Restricted Data (FRD) information. The Departments of Energy and Defense may choose to convert historical FRD information either to Restricted Data information or to classified national security information. FRD information concerns the military utilization of nuclear weapons, including storage locations and stockpile information and often dates from the end of World War II through the height of the Cold War. Although often no longer sensitive or cur- rent, this type of FRD information is of high in- terest to researchers yet remains largely unavail- able to the public, because there is no process for systematically reviewing it for declassification and release under the terms of the Executive Order for national security information. 

• Strengthen the National Declassification Center (NDC) to establish a more coordinated govern- ment-wide declassification system. 

• Executive Order 13526 should be revised to eliminate the additional three years now authorized to process multiple agency equities in all archival records (including those outside the NDC). 

• The declassification system should manage risk and better balance resource-intensive agency reviews with the democratic value of timely public release. Rules that govern declassification, including those concerning historical nuclear information, should tolerate greater risk. 

• Streamlined archival processing should expedite public release of declassified records, with such records automatically transferred to the National Archives and Records Administration (National Archives). 

• Public representatives, including experts from the Government Openness advocacy community, should be added to the inter- agency NDC Advisory Panel (NAP) advising the NDC Director. 

• Immediately require agencies to share declassification guidance and training and prioritize the review of historically significant records and ensure timely transfer to the National Archives. 

• Streamline activities of both the NDC and agencies to complement the modernization initiatives directed by the President in his Memorandum on Managing Government Records. 

• Classification and declassification program staffs should collaborate with agency historians and records officers to ensure that historically significant information is identified as early as possible in its “life” and then set aside for historical review and preserved for the long-term. Agency histories, both classified and unclassified, should serve policymakers and operational leaders with “lessons learned” as well as contributing to the historical record. Agency history programs should be promoted across Government and aligned in “centers” that bring declassification reviewers and historians together. Classified histories should be reviewed at a specified interval for declassification and release to the public. 

• Pilot projects should be identified to develop best practices and design a more streamlined system. 

Classification and declassification are not keeping pace with the myriad of challenges facing the system: digital information creation, access for cleared persons, existing backlogs of paper holdings awaiting declassification review, long-term storage requirements, or the rights of a democratic society to as much information as possible about its Government. Available technologies are rarely used to meet current needs; neither are agencies preparing to use these technologies to handle the enormous volume of digital records. As a result, the Government is currently unable to preserve or provide access to a great many important records. The challenge can be met only with determined efforts to modernize classification and declassification by employing existing technologies and developing new tools. Agencies should collaborate on policy, share technologies, promote best practices and develop common standards. Metadata are especially critical to future high-speed data manipulation in the digital era. Promising new technologies should be tested through a series of pilot projects, beginning with a declassification project at the NDC; once proven, they can be deployed at multiple agencies and then expanded to include pilot projects for classification. The ultimate goal of these pilots is to discover, develop and deploy technology that will: 

• Automate and streamline classification and declassification processes, and ensure integration with electronic records management systems. 

• Provide tools for preservation, search, storage, scalability, review for access, and security application. 

• Address cyber security concerns, especially when integrating open source information into classified systems. 

• Standardize metadata generation and tagging, creating a government-wide metadata registry. Lessons learned from the intelligence community will be helpful here. 

• Accommodate complex volumes of data (e.g. email, non-structured data, and video teleconferencing information). 

• Advance government-wide information management practices by supporting the President’s Memorandum on Managing Government Records. 

The President should hold the Steering Committee accountable for ensuring the interagency collaboration needed to employ existing technologies and develop new methods to modernize classification and declassification.