FOI

The Senate Legal and Constitutional_Affairs has released its report [PDF] on the deeply flawed Freedom of Information Amendment (New Arrangements) Bill 2014 (Cth).

That Bill is meant to "implement the new arrangements for privacy and FOI functions announced by the Government in the 2014 Budget", amending various Acts in order to:

• abolish the positions of Freedom of Information Commissioner and Australian Information Commissioner, and the OAIC; 
• create an independent statutory office of Australian Privacy Commissioner within the Australian Human Rights Commission (AHRC); 
• remove the current two-stage process for review of FOI decisions, with external merits review to be available only from the AAT, following mandatory internal review; 
• make the Attorney-General responsible for FOI guidelines, collection of FOI statistics and annual reporting on the FOI Act, in place of the Information Commissioner; and 
• make the Commonwealth Ombudsman solely responsible for investigating complaints about FOI administration. 

The Committee comments that

In his second reading speech on the Bill, Senator Richard Colbeck said the new arrangements set out in the Bill would not affect the legally enforceable right of every person to access official documents under the FOI Act, nor change the substantive criteria governing agencies' and ministers' decisions on FOI requests. The Bill would, however:

reduce the size of government, streamline the delivery of government services and reduce duplication. It will mean business as usual for privacy and largely restore the system for the management of freedom of information in place before the establishment of the [OAIC] on 1 November 2010.

The Bill makes it easier for applicants to exercise their rights under privacy and FOI legislation.

He would say that, of course, wouldn't he.

The Coalition Senators commented

Functions to be exercised by the Attorney-General: a conflict of interest?

Many submitters believed that the transfer of a number of FOI-related functions and powers from an independent statutory authority to the Executive branch of government was inappropriate and created a potential conflict of interest.

Associate Professor Moira Paterson of Monash University said that historically, oversight of the FOI Act by the Attorney-General's Department had not featured the same 'active championship and enforcement' of FOI as that now shown by the OAIC. The Open Australia Foundation referred to 'gaming of the system' undertaken by some agencies, underlining the need for an independent monitor of FOI compliance, and further claimed that among agencies, the Attorney-General's Department was 'not modelling best practice in this area'. Academic Bruce Baer Arnold went further, expressing scepticism 'that executives within the Attorney- General's department will demonstrate a sustained and vigorous enthusiasm for transparency'.

PIAC and others expressed particular concern about the assumption of determinative powers by the Attorney-General, such as to exempt documents from disclosure under FOI. Ms Sophie Farthing of PIAC noted that the new arrangements would allow the Attorney to define categories of information that were 'unreasonable' to publish, including information sought from his own department: 'there is a conflict with changing an office which is independent in issuing this kind of regulation and guidance about how the FOI Act should operate to someone who is subject to the Act himself'. The Public Law and Policy Research Unit at the University of Adelaide agreed, adding the observation that the department would 'both be implementing the [FOI] framework and providing a report on how well this has been achieved'. Professor Disney described the placement of promotion, monitoring and guidance roles within the Attorney-General's Department as 'utterly inappropriate'.

In its evidence, the Attorney-General's Department assured the committee that production of guidance and guidelines to government agencies would 'remain the same' under the department's administration as it had been under the OAIC, and that there would be no conflict with the department's decision-making role. The department further noted that the Bill provided for the transfer of staff from the OAIC to the department, ensuring that expertise would be brought in to discharge the functions formerly performed by the OAIC.

Arrangements for the Australian Privacy Commissioner

The AHRC raised concerns with the committee about the arrangements proposed in the Bill for the Australian Privacy Commissioner to be established as an independent statutory body within the AHRC:

The Bill proposes that the Australian Privacy Commissioner should sit within the AHRC but not be a member of the [AHRC]. The staff assigned to the Commissioner will be staff of the AHRC but under the exclusive direction of the Privacy Commissioner. These provisions will not work as a matter of law as the Accountable Authority for the purpose of the Public Governance, Performance and Accountability Act (PGPA) remains the President of the AHRC. It is also proposed that the Privacy Commissioner should have the same status as a staff member for the purpose of the PGPA. While all the other Commissioners within the AHRC report through the President to the Attorney-General, the Australian Privacy Commissioner would report directly to the Attorney-General. …the model proposed by the Bill fails to understand the legal obligations under the PGPA and the Australian Human Rights Commission Act and, with the best will in the world, creates potential for conflict. There are confusing lines of authority both in financial and staffing respects.

At the committee's public hearing, AHRC President Professor Gillian Triggs described the proposed arrangements as placing the Australian Privacy Commissioner 'in a separate bubble' within the AHRC:

If this Bill is passed, we will continue to do what we are doing in the [AHRC] but we will have this bubble in the middle of it where you have a Privacy Commissioner with staff I will allocate to him notionally, but the curious phenomenon under the bill is that those staff would not, under any circumstances, be accountable to the commission. That is simply unworkable because of the way in which the financial requirements are and in relation to all sorts of staffing matters and other legislation.

The AHRC proposed that these problems could be resolved by amending the legislation to reflect one of three alternative models: the creation of the Australian Privacy Commissioner as a separate Commonwealth entity (which could still receive corporate support from AHRC), the appointment of the Commissioner as a member of the AHRC in the same way as the other AHRC Commissioners, or an amendment to the Bill specifying that the Australian Privacy Commissioner would be empowered to direct staff only 'in compliance with his statutory functions', while in other respects the position would be subject to usual AHRC governance processes.

The Privacy Commissioner, Mr Timothy Pilgrim, agreed with the AHRC that 'the Bill creates a model that is not suited to achieving the objectives of the [Privacy Act] in the most efficient way'. He stated that historical experience, under which the Privacy Commissioner had been part of the (then) Human Rights and Equal Opportunity Commission prior to 2000, had not proven to be effective, and that the 'significantly different regulatory focus' of the Privacy Commissioner's role made it a poor fit for the AHRC. The Australian Privacy Foundation expressed a similar view, and believed that moving the Commissioner (back) into the AHRC risked 'repeating the mistakes of the original regime, and leaving the Commissioner with an even lower profile, and influence, than s/he [previously] had'.

Mr Pilgrim advocated for the return to a stand-alone statutory Office of the Privacy Commissioner, as had existed from 2000-2010. He observed that arrangements already in place between OAIC and AHRC for sharing corporate services such as human resources, finance and IT could continue for the office of an independent Privacy Commissioner, mitigating against any additional costs.

The Attorney-General's Department advised the committee that the relationship proposed in the Bill between the Australian Privacy Commissioner and the AHRC was not dissimilar to other models already in existence, citing the Classification Board as an example. The department stated that it was not unprecedented that office holders held statutory functions while not controlling their own finances and staffing. The department added that parliament would provide guidance on the appropriate resourcing for the Australian Privacy Commissioner's functions, in the form of budget appropriations, and that the Attorney-General as portfolio minister would be able to resolve any difficulties which may arise between the AHRC President and the Australian Privacy Commissioner with regard to the exercise of their respective statutory responsibilities.

Projected Savings

Several submitters queried the government's assertion that the reforms made by the Bill would result in savings of $10.2 million over four years. In particular, many pointed out that the additional costs to agencies of mandatory internal review had not been taken into account.46 In addition, attention was drawn to projected increased costs of AAT review not only to individual applicants, but to government agencies and the AAT itself.

Many were unconvinced that savings at the level of $2.5 million per year, even if realised, were significant enough to justify the losses to public accountability and open government which they believed would result from abolition of the OAIC. Professor Julian Disney expressed the view that 'achieving small government at the expense of good, efficient and open government seems rather contradictory'.

The argument for comprehensive FOI review

The committee's attention was drawn by many to the fact that the Hawke Review, submitted in July 2013, had commented positively on the OAIC, but also made a large number of recommendations to improve the operation of the FOI process, and recommended that these be considered further in a comprehensive review of FOI. Many submitters queried the government's decision to proceed with the measures in the Bill in advance of completing its consideration of the Hawke review, and without any broader review or consultation.

Mr Edward Santow of PIAC spoke strongly about this issue: There has been no public case made in any detail at all for what can only be described as radical changes to our FOI law. Indeed, the FOI law was overhauled as recently as 2010. Very little public consultation has taken place in respect of the Bill's proposals and the government is yet to respond to the recommendations in the statutory review that took place last year under Dr Allan Hawke. If the government is minded to make major changes to FOI law and practice we would urge the government first to undertake a full public consultation that also takes into account the recommendations of the many reviews since the Australian Law Reform Commission's review in 1995.

In response the Coalition Senators state - 

The committee notes that the objectives pursued by the Bill are fundamental to the government's core policy objectives of realising Budget savings, and creating smaller and more efficient government.

The committee has carefully considered the concerns raised by the AHRC in relation to the proposed arrangements for the Australian Privacy Commissioner. The committee recognises the need expressed by the AHRC to ensure that it is able to meet appropriate standards of governance, accountability and practicality in relation to the management of its finances and staff. The committee also acknowledges the perspective of the Privacy Commissioner on the particular requirements of that role, and his preference for maintaining the independence of the office.

The committee notes the advice provided by the Attorney-General's Department that the type of arrangement proposed for the Australian Privacy Commissioner is not unprecedented, and that the department is satisfied that it will not compromise the ability of the AHRC President to comply with her legislative responsibilities.

The committee takes the view that the amendment to the Bill proposed by the AHRC is warranted, in as much as it is a relatively small change but one which would give comfort to the AHRC, and may assist all involved, in ensuring that lines of governance and accountability are clear and workable.

 Its recommendations are that  -

R1 - item 3 of Schedule 2 of the Bill be amended to provide, under the proposed new section 43A(3) of the Australian Human Rights Commission Act 1986, that a member of staff of the AHRC made available to the Australian Privacy Commissioner is subject to the directions of the Commissioner 'in compliance with the Commissioner's statutory functions'.

R2 - the government as soon as possible respond to the Hawke Review, and conduct a consultation process as recommended in the Hawke Review.

R3 - subject to Recommendations 1 and 2, the Bill be passed.

The ALP Senators offered a less anaemic analysis, stating -

Freedom of information laws are essential to Australia's democracy because they give the Australian public and media access to information about what the government elected by the Australian people is doing in their name. Labor has long championed strong and effective freedom of information in Australia. In 2009-10 the Labor government made the most substantial reforms to Australia's FOI regime since its establishment in 1982, following extensive public consultation and with widespread support.

This reform, with the introduction of the Office of the Australian Information Commissioner (OAIC) at its heart, is now being dismantled by the Abbott government with no mandate, no consultation and no justification. The government's claim that the Bill does not affect the substantive rights of citizens, civil society and the press under FOI is simply not true. Its argument that it reduces the burden on applicants is, as Professor Richard Mulgan of the Australian National University described it, 'deceitful sophistry'.

The Bill is an attack on Australia's FOI regime, and on the work the former Labor Government did to revitalise that regime and bring it into line with international best-practice. It is an attack on transparent and accountable government. Labor Senators cannot support it.

No savings

The Bill is not, as the Committee’s majority report claims, a savings measure. As has been noted, even the small cuts achieved by this Bill may be illusory. The costs to agencies of mandatory internal review have not been accounted for.

Moreover, as almost every submission to this inquiry pointed out, a portion of the proposed 'savings' are in fact nothing but cost-shifting to applicants, who will now have to pursue an expensive formal appeal process instead of a free and accessible one.

No review

This Bill would abolish all independent merits review of FOI decisions short of a full adversarial FOI challenge in the Administrative Appeals Tribunal (AAT). As has been noted by numerous submissions to the Committee, AAT review is inaccessible to most ordinary FOI applicants. While review by the OAIC is free-of-charge, applicants face a filing fee of over $800 simply to commence an appeal in the AAT. While the OAIC conducts its own investigation, an appeal to the AAT involves an adversarial process and many applicants would require legal assistance or representation. As a bespoke FOI watchdog, the OAIC has developed a specialist knowledge and institutional memory that a generalist administrative tribunal will find difficult to match.

The AAT and the OAIC are in no sense interchangeable means of review. As Associate Professor Moira Paterson of Monash University argued, 'the genuine availability of an independent review mechanism is fundamental both to the effective operation of the legislation and public confidence in it'. Limiting review to those with the resources and legal knowledge or advice to go to the AAT will not only limit the accessibility of the FOI scheme to applicants, but may also affect the behaviour of government agencies, which 'need to know that their decisions are subject to independent oversight if they are to continue to take their FOI obligations seriously'.

Even Australia's Right to Know, the only submitter which overtly supported the move to direct review by the AAT, acknowledged that the situation of the media organisations which it represents was different to that of private individuals, and encouraged the consideration of a model which would retain the role of an information commissioner for those applicants who would benefit from it.

No consultation

Labor engaged in extensive consultation on its proposed changes to FOI laws in 2009-10, resulting in a new FOI infrastructure that was well-considered and enjoyed broad support. In stark contrast, the government did not conduct any review or consultation prior to announcing the Budget measure this Bill implements.

As noted in the committee's report, the recent review of FOI led by Dr Allan Hawke AC found that the establishment of the OAIC had been 'a very valuable and positive development'. Hawke concluded that the new FOI system was largely working as intended, and that any further reform should only proceed after more comprehensive review. The Government has ignored the good work done by the Hawke review, and has not undertaken any serious analysis of its own on the operation of the FOI scheme or of the OAIC. It is simply unacceptable for the Government to proceed with the complete overhaul of the FOI system without a thorough review and proper consultation.

No OAIC

The management of FOI and related information policy through an independent national body is best practice, and follows a global trend in comparable jurisdictions. The creation of such a body at federal level was advocated as long ago as 1995, in the Open Government Report of the Australian Law Reform Commission and Administrative Review Council. The OAIC was the centrepiece of the revitalisation and reform of FOI successfully brought about under the former Labor government. The continued existence of the OAIC received overwhelming support in submissions to this inquiry.

Labor senators accept that there have been complaints about long timelines for IC processing of FOI reviews, but notes the observation of FOI experts that these have been caused largely by the inadequacy of resources provided to the OAIC. Any delays in the OAIC review process should be dealt with by reviewing and if necessary increasing the resourcing of that office, not abolishing it. The OAIC and other FOI experts also noted that various suggestions had been made to improve the efficiency of OAIC processes. The OAIC has worked on its own volition to dramatically reduce its review timelines, as demonstrated in its most recent annual reporting. The Government has made no attempt to grapple with real solutions to perceived problems with the operation of the OAIC. Rather, its approach has been, as one submitter put it, to throw the baby out with the bathwater.

Under the arrangements proposed in the Bill, oversight of FOI – a system designed to hold executive government to account – will now be led by a core government department. This is a clear conflict of interest. Liberty Victoria observed that open government 'is now to be sacrificed to the very entities in whose interests the limitation of access to governmental information will, from time to time, be prevalent.'

In evidence to the committee, Information Commissioner Professor John McMillan observed that:

open government is ultimately more a matter of culture than precise legal rules, and that culture requires constant pressure. Even when one achieves a far more open and transparent system, the default system within any organisation is for greater confidentiality, greater information control, which some regard as greater secrecy. So, whatever system is in place for information oversight with a view to greater transparency, it requires constant pressure across government to ensure that the messages for transparency are heard and properly implemented…any achievement in the area of transparent government will be a temporary achievement unless there is constant pressure for greater transparency.

Labor senators believe that the OAIC must be retained. The agency has a key role to play in ensuring the transparency of our governance, and the government's proposed rearrangement is an opportunistic attack on an institution which enjoys broad support and has achieved demonstrated success. It is telling that the Abbott government, a government already known for secrecy and opaqueness, is the only voice calling for the abolition of the OAIC. If the government were truly committed to a credible FOI regime and accountable government, it would investigate measures to strengthen, not destroy, the best-practice body at its heart.

The ALP recommendations are that - 

R1   the Bill not be passed.

R2  the government immediately restore necessary funding to the Office of the Australian Information Commissioner to allow it to continue its work.

R3  the government commission a review of the operation of the OAIC, including its resourcing.

The  dissenting report by the Australian Greens commented -

Freedom of Information laws provide the public with important and necessary access to information held by governments and government departments.

The primary goal of any Freedom of Information regime should be to prioritise accessibility and transparency.

Freedom of Information laws provide the public, media organisations and journalists with a critical pathway to accessing information that otherwise would not be able to be accessed.

Of the 32 submissions received by the committee, not a single one supports the proposed changes outlined in the Bill, highlighting the importance placed by the community on an accessible and transparent Freedom of Information regime and widespread concern about this Bill.

Key issues

One of the key arguments raised by the government in support of the Bill has been the delays experienced in the processing of cases by the Office of the Australian Information Commissioner (OAIC). The government has argued that this highlights inadequacies in the organisation and thus it should be abolished.

However, a number of witnesses argued that the delays associated with the OAIC processing cases were the result of underfunding from both Labor and Coalition governments. Mr Peter Timmins argued the OAIC had been 'set up to fail' by being under-resourced from its establishment.

Mr John Wood argued:

The reforms of 2010 promised much, but the failure to provide necessary resources to the Office of the Australian Information Commissioner, led to the failure of those reforms. In addition, departments and agencies read into the failure to provide these resources, an "approval" to respond less than diligently to requests in the knowledge that either complainants would become exhausted pursuing their request, or it would be held up, in review, within the OAIC for a long, long time.

The majority committee report notes that the committee did not receive evidence indicating that AAT review would necessarily be faster than review by the OAIC. On the contrary, FOI Commissioner Dr James Popple advised the committee that comparison of the FOI reviews dealt with since 2010 revealed that the AAT had taken almost exactly the same average time as the OAIC to resolve FOI cases.

Mr Timmins in evidence to the inquiry stated:

I think the argument we are going to save $10 million over four years has some large question marks about it, to put it mildly. Some of the reasons I have raised in my submission include: the costs to individuals, the cost to the AAT; the cost to agencies for mandatory internal reviews, which has not been costed anywhere...

Other concerns raised included the high level of fees required to be paid in order to apply for an external review of decisions through the AAT.

As noted in the Majority Committee report, the Public Interest Advocacy Centre (PIAC) expressed concern that in addition to the burden of application fees, most individual applicants would not have the kind of legal representation that government agencies were able to retain, resulting in an 'imbalance that will happen in the litigious process'.

Professor Julian Disney also emphasised other factors that may affect accessibility to the AAT including the formality and intimidator impact of the AAT process and environment.

The Guardian also noted other issues with the proposed AAT process, commenting:

The $800 AAT filing fee is just the start of the potential costs to the requester in getting his or her application in front of the first reviewer who is genuinely independent of the agency which may have an interest in keeping the requested information secret and therefore in overstating the exemptions. OAIC reviews could be conducted on the papers, whereas AAT reviews will often involve hearings. The Committee will be aware that a tribunal must give procedural fairness to an unrepresented applicant, and that such hearings impose burdens on all parties and on the tribunal. Generally, they are not as efficient as proceedings in which all parties are represented by experienced practitioners.

Concerns were also raised around potential conflicts of interest relating to the exercise of functions by the Attorney-General’s department.

As noted in the majority committee report, the Open Australia Foundation referred to 'gaming of the system' undertaken by some agencies, underlining the need for an independent monitor of FOI compliance, and further claimed that among agencies, the Attorney-General's Department was 'not modelling best practice in this area'. Academic Bruce Baer Arnold went further, expressing scepticism 'that executives within the Attorney- General's department will demonstrate a sustained and vigorous enthusiasm for transparency'.

As noted in the majority committee report, PIAC noted that the new arrangements would allow the Attorney to define categories of information that were 'unreasonable' to publish, including information sought from his own department: 'there is a conflict with changing an office which is independent in issuing this kind of regulation and guidance about how the FOI Act should operate to someone who is subject to the Act himself'.

The Privacy Commissioner, Mr Timothy Pilgrim, stated that 'the Bill creates a model that is not suited to achieving the objectives of the [Privacy Act] in the most efficient way'. 

It is important to note that the Hawke Review did not recommend what is currently being proposed by the Government and in fact commented positively on the OAIC. It made a number of recommendations to improve the functions and operations of Australia’s FOI regime – none of which are being pursued by this Government.

The Hawke Review further called for a more comprehensive review of FOI laws and systems, something that has been pre-empted by the current Bill. 1.20 It is clear from the overwhelming evidence presented to the committee that the approach to FOI as proposed in the Bill would not improve accessibility and transparency, and in fact would create substantial barriers impacting the public’s right to know.

The Greens recommendations are that - 

R1 the Bill not be passed.

R2  the government establish a comprehensive review into Freedom of Information as recommended by the Hawke Review.

Disability and Equality

The ALRC's 324 page report on Equality, Capacity and Disability in Commonwealth Laws (ALRC Report 124) - which features several delightful quotes from myself and Dr Bonython - makes the following recommendations -

National Decision-Making Principles

R3–1 Reform of Commonwealth, state and territory laws and legal frameworks concerning individual decision-making should be guided by the National Decision-Making Principles and Guidelines (see Recommendations 3–2 to 3–4) to ensure that: ·

• supported decision-making is encouraged; 

• representative decision-makers are appointed only as a last resort; and 

• the will, preferences and rights of persons direct decisions that affect their lives.

Principle 1: The equal right to make decisions - All adults have an equal right to make decisions that affect their lives and to have those decisions respected.

Principle 2: Support - Persons who require support in decision-making must be provided with access to the support necessary for them to make, communicate and participate in decisions that affect their lives.

Principle 3: Will, preferences and rights - The will, preferences and rights of persons who may require decision-making support must direct decisions that affect their lives.

Principle 4: Safeguards - Laws and legal frameworks must contain appropriate and effective safeguards in relation to interventions for persons who may require decision-making support, including to prevent abuse and undue influence.

R3–2 Support Guidelines (1) General

(a) Persons who require decision-making support should be supported to participate in and contribute to all aspects of life.

(b) Persons who require decision-making support should be supported in making decisions.

(c) The role of persons who provide decision-making support should be acknowledged and respected—including family members, carers or other significant people chosen to provide support.

(d) Persons who require decision-making support may choose not to be supported.

(2) Assessing support needs In assessing what support is required in decision-making, the following must be considered:

(a) All adults must be presumed to have ability to make decisions that affect their lives.

(b) A person must not be assumed to lack decision-making ability on the basis of having a disability.

(c) A person’s decision-making ability must be considered in the context of available supports.

(d) A person’s decision-making ability is to be assessed, not the outcome of the decision they want to make.

(e) A person’s decision-making ability will depend on the kind of decisions to be made.

(f) A person’s decision-making ability may evolve or fluctuate over time.

R3–3 Will, Preferences and Rights Guidelines (1) Supported decision-making

(a) In assisting a person who requires decision-making support to make decisions, a person chosen by them as supporter must: (i) support the person to express their will and preferences; and (ii) assist the person to develop their own decision-making ability.

(b) In communicating will and preferences, a person is entitled to: (i) communicate by any means that enable them to be understood; and (ii) have their cultural and linguistic circumstances recognised and respected.

(2) Representative decision-making - Where a representative is appointed to make decisions for a person who requires decision-making support:

(a) The person’s will and preferences must be given effect.

(b) Where the person’s current will and preferences cannot be determined, the representative must give effect to what the person would likely want, based on all the information available, including by consulting with family members, carers and other significant people in their life.

(c) If it is not possible to determine what the person would likely want, the representative must act to promote and uphold the person’s human rights and act in the way least restrictive of those rights.

(d) A representative may override the person’s will and preferences only where necessary to prevent harm.

R3–4 Safeguards Guidelines (1) General Safeguards should ensure that interventions for persons who require decision-making support are:

(a) the least restrictive of the person’s human rights;

(b) subject to appeal; and

(c) subject to regular, independent and impartial monitoring and review.

(2) Support in decision-making

(a) Support in decision-making must be free of conflict of interest and undue influence.

(b) Any appointment of a representative decision-maker should be: (i) a last resort and not an alternative to appropriate support; (ii) limited in scope, proportionate, and apply for the shortest time possible; and (iii) subject to review.

Supported Decision-Making in Commonwealth Laws

R4–1 A Commonwealth decision-making model that encourages supported decision-making should be introduced into relevant Commonwealth laws and legal frameworks in a form consistent with the National Decision-Making Principles and Recommendations 4–2 to 4–9.

R4–2 The objects and principles provisions in Commonwealth legislation concerning decision-making by persons who require decision-making support should reflect the National Decision-Making Principles.

R4–3 Relevant Commonwealth laws and legal frameworks should include the concept of a supporter and reflect the National Decision-Making Principles in providing that:

(a) a person who requires decision-making support should be able to choose to be assisted by a supporter, and to cease being supported at any time;

(b) where a supporter is chosen, ultimate decision-making authority remains with the person who requires decision-making support; and

(c) supported decisions should be recognised as the decisions of the person who required decision-making support.

R4–4 A supporter assists a person who requires support to make decisions and may:

(a) obtain and disclose personal and other information on behalf of the person, and assist the person to understand information;

(b) provide advice to the person about the decisions they might make;

(c) assist the person to communicate the decisions; and

(d) endeavour to ensure the decisions of the person are given effect.

R4–5 Relevant Commonwealth laws and legal frameworks should provide that supporters of persons who require decision-making support must:

(a) support the person to make decisions;

(b) support the person to express their will and preferences in making decisions;

(c) act in a manner promoting the personal, social, financial, and cultural wellbeing of the person; (d) act honestly, diligently and in good faith;

(e) support the person to consult, as they wish, with existing appointees, family members, carers and other significant people in their life in making decisions; and

(f) assist the person to develop their own decision-making ability.

For the purposes of paragraph (e), ‘existing appointee’ should be defined to include existing Commonwealth supporters and representatives and a person or organisation who, under Commonwealth, state or territory law, has guardianship of the person, or is a person formally appointed to make decisions for the person.

R4–6 Relevant Commonwealth legislation should include the concept of a representative and provide for representative arrangements to be established that reflect the National Decision-Making Principles.

R4–7 A representative assists a person who requires support to make decisions or, where necessary, makes decisions on their behalf and may:

(a) obtain and disclose personal and other information on behalf of the person, and assist the person to understand information;

(b) provide advice to the person about the decisions that might be made;

(c) communicate the decisions; and

(d) endeavour to ensure the decisions made are given effect.

R4–8 Relevant Commonwealth laws and legal frameworks should provide that representatives of persons who require decision-making support must:

(a) support the person to make decisions or make decisions on their behalf reflecting their will and preferences;

(b) where it is not possible to determine the will and preferences of the person, determine what the person would likely want based on all the information available;

(c) where (a) and (b) are not possible, consider the person’s human rights relevant to the situation;

(d) act in a manner promoting the personal, social, financial and cultural wellbeing of the person;

(e) act honestly, diligently and in good faith;

(f) consult with existing appointees, family members, carers and other significant people in their life in making decisions; and

(g) assist the person to develop their own decision-making ability.

For the purposes of paragraph (f), ‘existing appointee’ should be defined to include existing Commonwealth supporters and representatives and a person or organisation who, under Commonwealth, state or territory law, has guardianship of the person, or is a person formally appointed to make decisions for the person.

R4–9 The appointment and conduct of representatives should be subject to appropriate and effective safeguards.

R4–10 The Australian and state and territory governments should develop mechanisms for sharing information about appointments of supporters and representatives, including to avoid duplication of appointments and to facilitate review and monitoring.

R4–11 The Australian Government should ensure that persons who require decision-making support, and their supporters and representatives are provided with information and guidance to enable them to understand their functions and duties.

R4–12 The Australian Government should ensure that employees and contractors of Commonwealth agencies who engage with supporters and representatives are provided with information, guidance and training in relation to the roles of supporters and representatives.

The National Disability Insurance Scheme

R5–1 The objects and principles in the National Disability Insurance Scheme Act 2013 (Cth) should be amended to ensure consistency with the National Decision-Making Principles.

R5–2 The National Disability Insurance Scheme Act 2013 (Cth) and NDIS Rules should be amended to include provisions dealing with supporters consistent with the Commonwealth decision-making model.

R5–3 The National Disability Insurance Scheme Act 2013 (Cth) and NDIS Rules should be amended to include provisions dealing with representatives consistent with the Commonwealth decision-making model.

R5–4 The National Disability Insurance Scheme Act 2013 (Cth) should be amended to incorporate provisions dealing with the process and factors to be taken into account by the CEO of the National Disability Insurance Agency in appointing representatives. These provisions should make it clear that the CEO’s powers are to be exercised as a measure of last resort, with the presumption that an existing state or territory appointee will be appointed, and with particular regard to the participant’s will, preferences and support networks.

R5–5 The National Disability Insurance Scheme Act 2013 (Cth) should be amended to provide that, before exercising the power to appoint a representative, the CEO of the National Disability Insurance Agency may make an application to a state or territory guardianship or administration body for the appointment of a person with comparable powers and responsibilities. The CEO may then exercise the power to appoint that person as a representative under the NDIS Act.

Supporters and Representatives in Other Areas of Commonwealth Law

R6–1 The Social Security (Administration) Act 1999 (Cth) should be amended to include provisions dealing with supporters and representatives consistent with the Commonwealth decision-making model.

R6–2 The Aged Care Act 1997 (Cth) should be amended to include provisions dealing with supporters and representatives consistent with the Commonwealth decision-making model.

R6–3 The Personally Controlled Electronic Health Records Act 2012 (Cth) should be amended to include provisions dealing with supporters and representatives consistent with the Commonwealth decision-making model.

R6–4 The Australian Information Commissioner should develop guidelines consistent with the Commonwealth decision-making model describing the role of supporters and explaining how ‘APP entities’ should recognise the role of supporters in assisting people to exercise their rights under the Privacy Act 1988 (Cth).

R6–5 The Australian Bankers’ Association should encourage banks to recognise supported decision-making. To this end, the ABA should issue guidelines, reflecting the National Decision-Making Principles and recognising that:

(a) customers should be presumed to have the ability to make decisions about access to banking services;

(b) customers may be capable of making and communicating decisions concerning banking services, where they have access to necessary support;

(c) customers are entitled to support in making and communicating decisions; and

(d) banks should recognise supporters and respond to their requests, consistent with other legal duties.

Access to Justice

R7–1 The Crimes Act 1914 (Cth) should be amended to provide that a person cannot stand trial if the person cannot be supported to:

(a) understand the information relevant to the decisions that they will have to make in the course of the proceedings;

(b) retain that information to the extent necessary to make decisions in the course of the proceedings;

(c) use or weigh that information as part of the process of making decisions; or

(d) communicate the decisions in some way.

R7–2 State and territory laws governing the consequences of a determination that a person is ineligible to stand trial should provide for:

(a) limits on the period of detention that can be imposed; and

(b) regular periodic review of detention orders.

R7–3 The Federal Court of Australia Act 1976 (Cth), Family Law Act 1975 (Cth) and the Federal Circuit Court of Australia Act 1999 (Cth) should provide that a person needs a litigation representative if the person cannot be supported to:

(a) understand the information relevant to the decisions that they will have to make in conducting proceedings, including in giving instructions to their legal practitioner;

(b) retain that information to the extent necessary to make those decisions;

(c) use or weigh that information as part of a decision-making process; or

(d) communicate the decisions in some way.

R7–4 The Federal Court of Australia Act 1976 (Cth), Family Law Act 1975 (Cth) and the Federal Circuit Court of Australia Act 1999 (Cth) should provide that litigation representatives must:

(a) support the person represented to express their will and preferences in making decisions;

(b) where it is not possible to determine the will and preferences of the person, determine what the person would likely want based on all the information available;

(c) where (a) and (b) are not possible, consider the person’s human rights relevant to the situation; and

(d) act in a manner promoting the personal, social, financial and cultural wellbeing of the person represented.

R7–5 Federal courts should develop practice notes explaining the duties that litigation representatives have to the person they represent and to the court.

R7–6 The Law Council of Australia should consider whether the Australian Solicitors’ Conduct Rules and Commentary should be amended to provide for a new exception to solicitors’ duties of confidentiality where:

(a) the solicitor reasonably believes the client is not capable of giving lawful, proper and competent instructions; and

(b) the disclosure is for the purpose of: assessing the client’s ability to give instructions; obtaining assistance for the client in giving instructions; informing the court about the client’s ability to instruct; or seeking the appointment of a litigation representative.

R7–7 The Evidence Act 1995 (Cth) should be amended to provide that a person is not ‘competent to give evidence about a fact’ if the person cannot be supported to:

(a) understand a question about the fact; or

(b) give an answer that can be understood to a question about the fact.

R7–8 The Evidence Act 1995 (Cth) should be amended to provide that a person who is ‘competent to give evidence about a fact’ is not competent to give sworn evidence if the person cannot understand that he or she is under an obligation to give truthful evidence, and cannot be supported to understand.

R7–9 The Crimes Act 1914 (Cth) should be amended to provide that a witness who needs support is entitled to give evidence in any appropriate way that enables them to understand questions and communicate answers.

R7–10 The Crimes Act 1914 (Cth) should be amended to provide that a witness who needs support has the right to have a support person present while giving evidence, who may act as a communication assistant; assist the person with any difficulty in giving evidence; or provide the person with other support.

R7–11 Federal courts should develop bench books to provide judicial officers with guidance about how courts may support persons with disability in giving evidence. 

R7–12 The Federal Court of Australia Act 1976 (Cth) should provide that a person is qualified to serve on a jury if, in the circumstances of the trial for which that person is summonsed, the person can be supported to:

(a) understand the information relevant to the decisions that they will have to make in the course of the proceedings and jury deliberations;

(b) retain that information to the extent necessary to make these decisions;

(c) use or weigh that information as part of the jury’s decision-making process; or

(d) communicate the person’s decisions to the other members of the jury and to the court.

R7–13 The Federal Court of Australia Act 1976 (Cth) should be amended to provide that the trial judge may order that a communication assistant be allowed to assist a juror to understand the proceedings and jury deliberations.

R7–14 The Federal Court of Australia Act 1976 (Cth) should be amended to provide that communication assistants, allowed by the trial judge to assist a juror, should:

(a) swear an oath or affirm to faithfully communicate the proceedings or jury deliberations; and

(b) be permitted in the jury room during deliberations without breaching jury secrecy principles, providing they are subject to and comply with requirements for the secrecy of jury deliberations.

R7–15 The Federal Court of Australia Act 1976 (Cth) should provide for offences, in similar terms to those under ss 58AK and 58AL of the Act, in relation to the soliciting by third parties of communication assistants for the provision of information about the jury deliberations, and the disclosure of information by communication assistants about the jury deliberations.

Restrictive Practices

R8–1 The Australian Government and the Council of Australian Governments should take the National Decision-Making Principles into account in developing the national quality and safeguards system, which will regulate restrictive practices in the context of the National Disability Insurance Scheme.

R8–2 The Australian Government and the Council of Australian Governments should develop a national approach to the regulation of restrictive practices in sectors other than disability services, such as aged care and health care.  

Electoral Matters

R9–1 The Commonwealth Electoral Act 1918 (Cth) should be amended to repeal:

(a) s 93(8)(a), which provides that a person of ‘unsound mind’ who is ‘incapable of understanding the nature and significance of enrolment or voting’ is not entitled to have their name on the electoral roll or to vote in any Senate or House of Representatives election; and

(b) s 118(4), which relates to objections to enrolment on the basis that a person is of ‘unsound mind’.

R9–2 State and territory governments should repeal ‘unsound mind’ provisions in their electoral legislation and make other changes consistent with those recommended by the ALRC with respect to the Commonwealth Electoral Act 1918 (Cth).

R9–3 Section 245 of the Commonwealth Electoral Act 1918 (Cth) on compulsory voting should be amended to provide that it is a ‘valid and sufficient reason’ for not voting if a person cannot:

(a) understand information relevant to voting at the particular election;

(b) retain that information for a sufficient period to make a voting decision;

(c) use or weigh that information as part of the process of voting; or

(d) communicate their vote in some way.

R9–4 The Australian Electoral Commission should provide Divisional Returning Officers with guidance and training, consistent with the National Decision-Making Principles, to help them determine if a person with disability has a valid and sufficient reason for failing to vote.

R9–5 Section 234(1) of the Commonwealth Electoral Act 1918 (Cth) should be amended to provide that if any voter satisfies the presiding officer that he or she is unable to vote without assistance, the presiding officer shall permit a person chosen by the voter to assist them with voting.

R9–6 The Australian Electoral Commission should provide its officers with guidance and training, consistent with the National Decision-Making Principles, to improve support in enrolment and voting for persons who require support to vote.

R9–7 The Australian Electoral Commission should investigate methods of maintaining the secrecy of votes of persons who require support to vote.

Review of State and Territory Legislation

R10–1 State and territory governments should review laws and legal frameworks concerning individual decision-making to ensure they are consistent with the National Decision-Making Principles and the Commonwealth decision-making model. In conducting such a review, regard should also be given to:

(a) interaction with any supporter and representative schemes under Commonwealth legislation;

(b) consistency between jurisdictions, including in terminology;

(c) maximising cross-jurisdictional recognition of arrangements; and

(d) mechanisms for consistent and national data collection.

Any review should include, but not be limited to, laws with respect to guardianship and administration; consent to medical treatment; mental health; and disability services.

Other Issues

R11–1 Sections 23(1)(iii) and 23B(1)(d)(iii) of the Marriage Act 1961 (Cth) should be amended to remove the references to ‘being mentally incapable’ and instead provide that ‘real consent’ is not given if ‘a party did not understand the nature and effect of the marriage ceremony’.

R11–2 The Guidelines on the Marriage Act 1961 for Marriage Celebrants should be amended to reflect the removal of the reference to ‘mental incapacity’ in the Marriage Act 1961 (Cth) and to provide further guidance on determining whether or not a person can ‘understand the nature and effect of the marriage ceremony’.

R11–3 Sections 201F(2), 915B and 1292(7)(b) of the Corporations Act 2001 (Cth) should be amended to remove references to ‘mental incapacity’, ‘being incapable, because of mental infirmity’ and ‘mental or physical incapacity’. Instead, the provisions should state that a person is not eligible to act in the roles of director, auditor or liquidator, or a financial services licence holder, if they cannot be supported to:

(a) understand the information relevant to the decisions that they will have to make in performing the role;

(b) retain that information to the extent necessary to make those decisions;

(c) use or weigh that information as part of the process of making decisions; or

(d) communicate the decisions in some way.

R11–4 The Australian Government should review and replace provisions in Commonwealth legislation that require the termination of statutory appointments by reason of a person’s ‘unsound mind’ or ‘mental incapacity’.

Surveillance

'An International Legal Framework for Surveillance' by Ashley Deeks in (2015) 55 Virginia Journal of International Law comments -

Edward Snowden’s leaks laid bare the scope and breadth of the electronic surveillance that the U.S. National Security Agency and its foreign counterparts conduct. Suddenly, foreign surveillance is understood as personal and pervasive, capturing the communications not only of foreign leaders but also of private citizens. Yet to the chagrin of many state leaders, academics, and foreign citizens, international law has had little to say about foreign surveillance. Until recently, no court, treaty body, or government had suggested that international law, including basic privacy protections in human rights treaties, applied to purely foreign intelligence collection. This is now changing: several U.N. bodies, judicial tribunals, U.S. corporations, and victims of foreign surveillance are pressuring states to bring that surveillance under tighter legal control.

This article tackles three key, interrelated puzzles associated with this sudden transformation. First, it explores why international law has had so little to say about how, when, and where governments may spy on other states’ nationals. Second, it draws on international relations theory to argue that the development of new international norms regarding surveillance is both likely and essential. Third, it identifies six process-driven norms that states can and should adopt to ensure meaningful privacy restrictions on international surveillance without unduly harming their legitimate national security interests. These norms, which include limits on the use of collected data, periodic reviews of surveillance authorizations, and active oversight by neutral bodies, will increase the transparency, accountability, and legitimacy of foreign surveillance.

This procedural approach challenges the limited emerging scholarship on surveillance, which urges states to apply existing — but vague and contested — substantive human rights norms to complicated, clandestine practices. In identifying and valuing new, objectively verifiable, neutral norms, the article offers a more viable and timely solution to the perils of foreign surveillance.

Rank and Forfeiture

'Rank Among Equals' by Ben A. McJunkin in Michigan Law Review (Forthcoming) comments

Dignity is on the march. As illustrated by Justice Kennedy’s recent majority opinion in United States v. Windsor, the concept — once seen as exclusive to moral philosophy — has taken on increasing importance in the legal realm, particularly in the recognition of individual human rights. Jeremy Waldron's recent book, Dignity, Rank, and Rights, offers a profound and provocative take on dignity's newfound centrality to law. Waldron contends that dignity currently operates as a universal legal status that entails individual rights. He suggests that this development reflects the gradual democratization of aristocratic privilege — a kind of "leveling up" of humanity. 

This Review disentangles and separately examines the two core accounts of dignity in Waldron's work. The first, which purports to identify the nature of contemporary legal dignity as a form of status, appears to be promising step toward better understanding the role dignity plays in law. The second, Waldron's historical account of dignity's development that offers up something like an origin story for our contemporary conceptions, is more troubling. Borrowing from feminist theory and queer theory, as well as from the equality projects to which they are allied, I contend that Waldron's narratives of extending aristocratic privilege threaten to entrench inequality and injustice while limiting the potential for marginalized groups to employ dignity as a deeply remedial legal tool. I urge Waldron to revisit dignity's expressive connection to human worth, which has proven central to dignity-based antidiscrimination and antisubordination projects.

The Victorian Law Reform Commission's The Forfeiture Rule report states

The forfeiture rule prevents a person who has unlawfully killed another from inheriting from their victim or acquiring another financial benefit from the death. It is an unwritten rule of public policy enforced by the courts. It has no statutory basis yet overrides the words of a will, entitlements provided in legislation, and legally binding agreements to which the deceased person was a party. The rule applies where the court is satisfied, in civil proceedings, that the person was responsible for an unlawful killing. A person acquitted in criminal proceedings, or not prosecuted for a criminal offence at all, may still be precluded from obtaining a benefit. The only exception in Victoria is where the person is not guilty because of mental impairment. 

Emerging in the late 19th century from common law doctrines that stripped murderers and other felons of their property, the rule remains relevant today. It conveys the community’s strongest condemnation of the act of unlawfully taking another human life. 

The rule is not applied often, as it is directed to circumstances where the person responsible for the death stands to benefit from the deceased person’s estate or otherwise as a result of their close relationship with the deceased person. However, of the 85 homicides in Victoria last year, 27 (33 per cent) were committed by a family member. It is likely that in many of these cases the forfeiture rule prevented the person responsible from obtaining a benefit. 

Need for reform 

Although the public policy is sound, the rule requires reform for two reasons: clarity and fairness. The scope of the rule as it applies in Victoria is unclear. There is no doubt that it applies to murder, but the reach of the rule to all forms of unlawful killing, including inadvertent and involuntary acts, is unsettled. Where it does apply, the effect that the rule has on the subsequent distribution of forfeited benefits is uncertain. The rule can operate unfairly because it is applied inflexibly and without regard to the moral culpability of the person responsible for the unlawful killing. This is at odds with changes in community attitudes, as reflected in the greater range of criminal offences and sentence options today compared to when the rule was first articulated. 

The application of the forfeiture rule can also have unfair consequences for third parties as it can affect their potential rights to take a forfeited benefit. Those affected may include alternative beneficiaries named in a will, other beneficiaries of the deceased person’s estate, the innocent descendants of the unlawful killer, and any person who co-owns property with the unlawful killer and the deceased person as joint tenants. 

Legislative responses in other jurisdictions 

Responding to similar concerns, other jurisdictions have introduced legislation to replace or augment the operation of the common law rule. New Zealand’s Succession (Homicide) Act 2007 (NZ) (‘the NZ Act’) codifies the rule. It sets out the homicides to which the rule applies, excises those to which it does not apply, and specifies its effect on the distribution of the benefits to which the person would have been entitled. 

The United Kingdom has taken a minimalist approach. The Forfeiture Act 1982 (UK) (‘the UK Act’) leaves the scope and effect of the rule at common law intact, but gives the court a discretion to modify its effect if required by the justice of the case. The Australian Capital Territory and New South Wales subsequently introduced legislation that is closely modelled on the UK Act: the Forfeiture Act 1991 (ACT) (‘the ACT Act’) and the Forfeiture Act 1995 (NSW) (‘the NSW Act’). The key difference between the three statutes is that the NSW Act was amended in 2005 to give the court a discretion to apply the rule to a person who has been found not guilty by reason of mental illness. 

There have been no recorded applications under the ACT Act to modify the effect of the rule. Five such applications have been made under the NSW Act, and a further three to apply the rule to a person found not guilty of an unlawful killing because of a mental illness. All applications under the NSW Act have been successful. However, most cases concerning the forfeiture rule are not made under the Forfeiture Act but involve applications seeking clarification of the effect of the rule and a determination as to where the offender’s interest is to be redirected. 

Proposed Forfeiture Act 

The Commission released a consultation paper and sought submissions on possible options for reform, based on the approaches illustrated in the NZ, UK, ACT and NSW Acts. A recurring theme in submissions and consultations was that legislative reform is needed, to provide certainty about the scope and effect of the rule and to overcome concerns about the lack of regard to the offender’s moral culpability. 

The Commission concluded that Victoria should introduce a Forfeiture Act that draws both from the reforms in New Zealand that codified the rule in order to create greater certainty and from the reforms in New South Wales and elsewhere that introduced a discretion to ensure greater fairness in the application of the rule. The proposed Forfeiture Act would specify the unlawful killings to which the rule applies and, either directly or by consequential amendment to other legislation, clarify its effect. To overcome concerns about the harsh effects of the rule, certain offences would be excluded from its operation. In addition, the court would have a discretion, on application, to modify the effect of the rule on a case-by-case basis where required by the justice of the case. 

Scope of the rule 

The determining factor for the Commission in defining the scope of the rule for the purposes of the proposed Forfeiture Act is the moral culpability of the person responsible for the unlawful killing. For clarity, the Commission recommends establishing a nexus between the unlawful killings to which the rule applies and murder and other indictable homicide offences under the Crimes Act 1958 (Vic). 

In the interests of justice, the Commission recommends excluding from the scope of the rule a small number of homicide offences where any perpetrator is likely to be considered to have low moral culpability and the offence does not warrant a bar on the offender taking a benefit from the deceased person. These are:

• dangerous driving causing death 

• manslaughter pursuant to a suicide pact with the deceased person or aiding or abetting a suicide pursuant to such a pact 

• infanticide. 

These offences were identified in submissions and consultations and have been excluded from the rule in other jurisdictions. Motor manslaughter is excluded at common law from the operation of the rule in the United Kingdom, and the NZ Act excludes killings caused by negligent acts or omissions, killings in pursuance of a suicide pact and infanticide. Given the nature of each of these offences and the low moral culpability of the offenders, any application to modify the effect of the rule in the circumstances of these offences would be likely to succeed. The exclusion of these offences will therefore create greater certainty and will reduce costs to the estate resulting from unnecessary litigation. 

Judicial discretion 

Under provisions similar to those in the UK, ACT and NSW Acts, the court in Victoria would have the discretion to modify the effect of the rule as required by the justice of the case. However, unlike the equivalent legislation, the proposed Forfeiture Act would expressly direct the court to consider the moral culpability of the person responsible for the unlawful killing and set out the evidence to which it should have regard. An interested person—who could be the person responsible, the executor or administrator of the deceased person’s estate, or any other person who in the opinion of the court has an interest in the matter—would be able to make an application for a forfeiture modification order. The procedural details of the scheme would be modelled on the UK, ACT and NSW Acts. 

Unlike the NSW Act, however, the proposed Forfeiture Act would not empower the court to extend the scope of the rule beyond the limits of the common law to persons who have been found not guilty by reason of mental impairment. The Commission does not consider that the rule should apply to a person who is not morally culpable for the unlawful killing. 

Effect of the rule 

The deceased person may leave a will that appoints the person who is later responsible for their death as executor. If the deceased person does not leave a will, the court usually appoints a person who is a major beneficiary to administer the estate. The Commission recommends that the proposed Forfeiture Act should clearly preclude a person who is responsible for the death from taking up an appointment either as executor or administrator. This would be achieved by deeming them to have died before the deceased person. 

As the person’s responsibility for the death may not be established until some time after the death, the Commission also recommends that the court be given an express power to pass over a person who applies for probate or administration where there are reasonable grounds for believing that they committed an offence related to the deceased person’s death. 

The effect of the rule on the entitlements of innocent beneficiaries and third parties would also be clarified. In some circumstances, another beneficiary under a will, or a descendant of an offender, may stand to gain a share of the estate but only if the offender dies before or shortly after the deceased person. Even though they are innocent of any wrongdoing, they are unable to take a share if the offender is alive but precluded by the rule from inheriting. This will be the case even if it is likely that the deceased person would have wanted them to inherit or if they were the deceased person’s closest living relative. To overcome this problem the Commission recommends deeming the offender to have predeceased the deceased person. 

The Commission also recommends that a person who is responsible for the death of a person should be disentitled from making an application for family provision in order to obtain a larger share of the deceased person’s estate. 

If the deceased person and the offender owned property as joint tenants, perhaps in conjunction with one or more other people, the rule has consequences for the beneficiaries of the deceased person and any innocent joint tenants. In normal circumstances, the deceased person’s interest in the property would vest in the surviving joint tenant or tenants in accordance with the law of survivorship. Where one surviving joint tenant is responsible for the death of another, courts have taken different approaches to determining the impact of the rule. The favoured approach has been to deem that the person responsible for the death holds the deceased person’s share on constructive trust for the deceased person’s estate. The Commission recommends that the interest of the person responsible for the death should be severed at the time of the death. This is clearer, simpler and fairer. 

These clarifications would make it easier for an executor or administrator to distribute the deceased person’s estate and reduce the associated legal costs. If the outcome is unfair in any particular circumstances, the court could, on application, modify the effect of the rule.

 The Commission's recommendations are - 

1 Victoria should introduce a Forfeiture Act that defines the scope and effect of the common law rule of forfeiture and provides for the Supreme Court, on application, to modify the effect of the rule if the justice of the case requires it. 

2 The purpose of the Forfeiture Act should be set out in the legislation and include: (a) to reinforce the common law rule of public policy that a person who has unlawfully killed another person cannot acquire a benefit in consequence of the killing and, in so doing, to: (i) manifest the community’s denunciation of unlawful killing (ii) deter persons from unlawfully killing others for financial gain (b) to modify the application of the rule to exclude offences where justice requires (c) to provide for the effect of the rule to be modified if the justice of the case requires it in view of an offender’s moral culpability and responsibility for the offence (d) to codify the effect of the rule on rights of succession. 

3 The Forfeiture Act should specify that, subject to the exceptions in Recommendation 4, the forfeiture rule applies only where the killing, whether done in Victoria or elsewhere, would be murder or another indictable offence under the Crimes Act 1958 (Vic). 

4 The Forfeiture Act should specify that the forfeiture rule does not apply where the killing, whether done in Victoria or elsewhere, would be an offence under the Crimes Act 1958 (Vic) of: (a) dangerous driving causing death (b) manslaughter pursuant to a suicide pact with the deceased person or aiding or abetting a suicide pursuant to such a pact, or (c) infanticide. 

5 The existing exception to the common law rule of forfeiture for persons found not guilty by reason of mental impairment should be retained. 

6 The Supreme Court should be empowered to make a forfeiture rule modification order if satisfied that, having regard to the offender’s moral culpability and responsibility for the unlawful killing and such other matters as appear to the Court to be material, the justice of the case requires the effect of the rule to be modified. 

7 In determining the moral culpability of the offender, the Supreme Court should have regard to: (a) findings of fact by the sentencing judge (b) findings by the Coroner (c) victim impact statements presented at criminal proceedings for the offence (d) submissions on interests of victims (e) the mental state of the offender at the time of the offence, and (f) such other matters that in the Court’s opinion appear to be material to the offender’s moral culpability. 

8 The Forfeiture Act should empower the Supreme Court to make a forfeiture rule modification order that modifies the effect of the rule in such terms and subject to such conditions as the Court thinks fit. 

9 Where a person has unlawfully killed another person and is thereby precluded by the forfeiture rule from obtaining a benefit, and the unlawful killing does not constitute murder, that person, or another ‘interested person’, should be able to apply for a forfeiture rule modification order. 

10 An ‘interested person’ should mean: (a) the ‘offender’ (a person who has unlawfully killed another person) or a person applying on the offender’s behalf (b) the executor or administrator of a deceased person’s estate, or (c) any other person who in the opinion of the Court has an interest in the matter. 

11 The property, entitlements and other benefits that may be affected by a forfeiture rule modification order should be specified in the Forfeiture Act and include: (a) gifts to the offender made by the will of the deceased person (b) entitlements on intestacy (c) eligibility to make an application for family provision under Part IV of the Administration and Probate Act 1958 (Vic) (d) any other benefit or interest in property that vests in the offender as a result of the death of the deceased person. 

12 On the making of a forfeiture rule modification order, the forfeiture rule should have effect for all purposes (including purposes relating to anything done before the order was made) subject to modifications made by the order. 

13 On application by an interested person, the Supreme Court should be empowered to revoke or vary a forfeiture rule modification order if the justice of the case requires it. 

14 An interested person (as defined in Recommendation 10) should be able to apply for revocation or variation of a forfeiture rule modification order if: (a) the offender is pardoned (b) the offender’s conviction is quashed or set aside and there are no further avenues of appeal available in respect of the decision to quash or set aside the conviction, or (c) in all other cases—if the Court considers it just in all the circumstances to give leave for such an application to be made. 

15 If a forfeiture rule modification order is revoked or varied, the forfeiture rule should have effect for all purposes (including purposes relating to anything done before the order was revoked or varied): (a) in the case of a revocation—subject to the terms on which the Court revokes the order, and (b) in the case of a variation—subject to modifications made by the varied order. 

16 The Forfeiture Act should provide that, unless the Supreme Court gives leave for a late application to be made, an application for a forfeiture rule modification order must be made by the later of: (a) if the forfeiture rule operates immediately on the death of a deceased person to prevent the offender from obtaining the benefit concerned—within six months from the date of the death of the deceased person (b) if the forfeiture rule subsequently prevents the offender from obtaining a benefit— within six months from the date on which the forfeiture rule operates to preclude the offender from obtaining the benefit concerned (c) six months after grant of probate of the will of the deceased person or letters of administration of the deceased person’s estate (d) six months after all charges of unlawful killing laid against any beneficiary have been dealt with. 

17 The Supreme Court should be permitted to give leave for a late application for a forfeiture rule modification order if: (a) the offender concerned is pardoned by the Governor after the expiration of the relevant period (b) the offender’s conviction is quashed or set aside by a court after the expiration of the relevant period and there are no further avenues of appeal available in respect of the decision to quash or set aside the conviction (c) the fact that the offender committed the unlawful killing is discovered after the expiration of the relevant period, or (d) the Court considers it just in all the circumstances to give leave. 

18 The Forfeiture Act should provide that a conviction in Victoria or another Australian state or territory is conclusive evidence that an offender is responsible for the unlawful killing. 

19 The transitional provisions should be based on section 9 of the Forfeiture Act 1995 (NSW). 

20 The Administration and Probate Act 1958 (Vic) should be amended to provide that, where a person appointed executor by a will or who is otherwise eligible to be appointed administrator is precluded by the forfeiture rule from acquiring an interest in the deceased’s estate, the person is to be treated as having died immediately before the deceased person. 

21 The Administration and Probate Act 1958 (Vic) should be amended to provide for the Court to pass over a person who applies for a grant of representation where there are reasonable grounds for believing that the person has committed an offence related to the deceased’s death. The provision should be based on section 348 of model legislation proposed in the December 2009 report of the National Committee for Uniform Succession Laws to the Standing Committee of Attorneys-General on the administration of estates of deceased persons. 

22 Part 4 of the Wills Act 1997 (Vic) should be amended with the effect that: (a) where a will contains a devise or bequest to a person who: (i) disclaims it, or (ii) has been precluded by the common law rule of forfeiture from acquiring it the person is, unless a contrary intention appears by the will, to be treated for the purposes of the Act as having died immediately before the will-maker, and entitled to the devise or bequest at the time of the deemed death. (b) this amendment does not affect the Court’s power under the Forfeiture Act to modify the effect of the forfeiture rule 

23 The Administration and Probate Act 1958 (Vic) should be amended with the effect that: (a) for the purposes of the distribution of an intestate’s residuary estate, a person who: (i) is entitled in accordance with section 52 to an interest in the residuary estate but disclaims it, or (ii) would have been so entitled if not precluded from acquiring it by the common law rule of forfeiture is to be treated as having died immediately before the intestate, and entitled to the interest in the residuary estate at the time of the deemed death (b) this amendment does not affect the Court’s power under the Forfeiture Act to modify the effect of the forfeiture rule. 

24 Part IV of the Administration and Probate Act 1958 (Vic) should be amended to disentitle persons to whom the forfeiture rule applies from making an application for family provision in respect of the deceased person’s estate. 

25 The effect of section 50 of the Transfer of Land Act 1958 (Vic) should be amended to provide that, where a joint proprietor has been unlawfully killed (within the meaning of the Forfeiture Act) by another joint proprietor, the property shall devolve at the death of the victim as follows: (a) where the offender and the victim were the only joint proprietors, as if the property were owned by each of them as tenants in common in equal shares (b) where there were more than two joint proprietors, as if: (i) the offender holds their interest as a tenant in common (ii) the surviving innocent joint proprietor(s) take the victim’s interest by survivorship (iii) as between the offender on the one hand and the innocent joint proprietors on the other hand, a tenancy in common exists (iv) as between the innocent joint proprietors, a joint tenancy exists. 

26 If an offender obtains registration by survivorship under section 50 of the Transfer of Land Act 1958 (Vic) before it becomes apparent that the forfeiture rule applies, the Registrar should be empowered to rectify the Register appropriately. 

27 Payments that would have been made to a person who is responsible for unlawfully killing a person who is a member of a state statutory defined benefit superannuation scheme or who otherwise has pension entitlements under state legislation should be redirected as if that person had died before the victim.

Breach

'Empirical Analysis of Data Breach Litigation' by Sasha Romanosky, David Hoffman and Alessandro Acquisti in (2014) 11(1) Journal of Empirical Legal Studies 74–104 argues

The surge in popularity of social media, e-commerce, and mobile services is proof of the benefits consumers are enjoying from information and communication technologies. However, these same technologies can create harm when personal consumer information is lost or stolen, causing emotional distress or monetary damage from fraud and identity theft. Since 2005, an estimated 543 million records have been lost from over 2,800 data breaches,  and identity theft caused $13.3 billion in consumer financial loss in 2010 (BJS 2011). In response, federal legislators have introduced numerous bills that define appropriate business practices regarding the collection and protection of consumer information,  and federal regulators have drafted privacy frameworks for consumer data protection (Department of Commerce 2010; FTC 2010). A significant concern for policymakers, therefore, is balancing ex ante regulation with ex post litigation to protect both consumer and commercial interests. For instance, the Department of Commerce inquired: “should baseline commercial data privacy legislation include a private right of action?” (Department of Commerce 2010:30). At issue is the degree to which the current liability regime sufficiently addresses modern privacy harms, or whether a new, more effective federal liability standard is required. 

On one hand, a weak litigation regime would be ineffective at deterring a firm's harmful or negligent behavior. Lawsuits that are inappropriately disposed of eliminate a plaintiff's ability to obtain appropriate relief for legitimate harms. For example, a case was successfully brought against Rite Aide for carelessly tossing pharmacy labels and employment applications in a public trash dumpster.  In the settlement, Ride Aide agreed to “a comprehensive information security program that is reasonably designed to protect the security, confidentiality, and integrity of personal information collected from or about consumers.”  Without legal action, such careless practices may have never been corrected.

On the other hand, a heavy-handed litigation regime could impose excessive legal fees and damage awards and—according to some—stifle innovation. For instance, Netflix, an online movie rental site, offered a $1 million prize to anyone who could sufficiently improve its movie recommendation algorithm. To facilitate the contest, Netflix published (what was believed to be) anonymized rental information for a sample of its users. Due to lawsuits stemming from the reidentification of these data, Netflix cancelled a subsequent contest. While the total social value of such innovation may be limited, the Netflix case provides one example of how litigation can impact firms' product development.

Our research attempts to offer novel insight into this debate by providing the first comprehensive empirical analysis of data breach litigation, and investigates the drivers, mechanisms, and outcomes of data breach litigation.

Determining whether current U.S. privacy laws are too weak or too strong is not easy. It is difficult (and perhaps impossible) to assess the aggregate costs and benefits for both consumers and firms of different privacy regimes in purely monetary terms (Romanosky & Acquisti 2009). However, even just understanding the landscape of privacy litigation is a problem. Little is known about the trends in data breach litigation—which breaches are litigated and which are not, and with what outcomes. While there exists some legal scholarship regarding data breach litigation (Citron 2007, 2011; Rice 2007; Serwin 2009), it typically examines a narrow subset of lawsuits, focusing on high-profile cases or those with published opinions. Unfortunately, given that as few as 15 percent of all federal lawsuits produce reported opinions (Hoffman et al. 2007), any conclusions reached from examining particular, high-profile cases are likely unrepresentative of the full population of data breach lawsuits. Consequently, it remains still unclear what characteristics these lawsuits actually possess, and how “successful” they have been.

To our knowledge, no empirical research involving data breach lawsuits has been conducted. The purpose of this article is to address this research and policy gap by investigating empirically a representative collection of federal data breach lawsuits and their outcomes. We overcome common sample selection issues by searching Westlaw and acquiring data directly from court dockets (PACER), in combination with other publicly available data sources.

In addition to presenting rich descriptive information about these lawsuits, we explore two sets of questions. First, what kinds of data breaches are being litigated in federal court, and why? Second, what kinds of data breach lawsuits are settling, and why? Our first question examines federal lawsuits resulting from reported data breaches, while the second question includes all known federal lawsuits related to the unauthorized disclosure of personal information.

Our analysis reveals that federal data breach lawsuits typically exhibit a number of significant characteristics. First, plaintiffs seek relief for one or more of: actual loss from identity theft (e.g., financial or medical fraud), emotional distress, cost of preventing future losses (e.g., credit monitoring and identity theft insurance), and the increased risk of future harm. Second, the lawsuits are usually private class actions, though some are brought by public entities such as the Federal Trade Commission or state attorneys general. Third, defendants are typically large firms such as banks, medical/insurance entities, retailers, or other private businesses. Fourth, complaints allege a staggering range of both common-law (tort, breach of contract) and statutory causes of action. And fifth, the vast majority of cases either settle, or are dismissed, either as a matter of law, or because the plaintiff was unable to demonstrate actual harm.

In addition, we find that that the odds of a firm being sued are 3.5 times greater when individuals suffered financial harm, but over 6 times lower when the firm provides free credit monitoring to those affected by the breach. Moreover, the odds of a firm being sued as a result of improperly disposing of data are 3 times greater relative to breaches caused by lost/stolen data, and 6 times greater when the data breach involved the loss of financial information. Our analysis suggests that defendants settle 30 percent more often when plaintiffs allege financial loss from a data breach, or when faced with a certified class action suit. The odds of a settlement are found to be 10 times greater when the breach is caused by a cyber attack, relative to lost or stolen hardware, and the compromise of medical data increases the probability of settlement by 31 percent.

By providing a comprehensive empirical analysis of data breach litigation, these findings offer insight into the debate over privacy litigation versus privacy regulation. Specifically, we believe that answering these questions will help inform firms, consumers, and policymakers regarding the risks associated with the collection and use of personal information, and the characteristics and outcomes of federal data breach litigation.

The next section provides background literature related to data breaches, docket analysis, and litigation. We then examine which breaches are litigated and, conditional on suit, which cases settle. Discussions of limitations and final conclusions complete the article.