Non-human animal rights

'The Claims of Animals and the Needs of Strangers: Two Cases of Imperfect Right' by Christine Korsgaard in Journal of Practical Ethics comments

This paper argues for a conception of the natural rights of non-human animals grounded in Kant’s explanation of the foundation of human rights. The rights in question are rights that are in the first instance held against humanity collectively speaking—against our species conceived as an organized body capable of collective action. The argument proceeds by first developing a similar case for the right of every human individual who is in need of aid to get it, and then showing why the situation of animals is similar. I first review some of the reasons why people are resistant to the idea that animals might have rights. I then explain Kant’s conception of natural rights. I challenge the idea that duties of aid and duties of kindness to animals fit the traditional category of “imperfect duties” and argue that they are instead cases of “imperfect right.” I explain how you can hold a right against a group, and why it is legitimate to conceive of humanity as such a group. I then argue that Kant’s account of the foundation of property rights is grounded in a conception of the common possession of the Earth that grounds a right to aid and the rights of animals to be treated in ways that are consistent with their good. Finally, I return to the objections to the idea that animals have rights and offer some responses to them. 

Korsgaard continues

Some people use the term “animal rights” to refer simply to the moral claims of non-human animals, whatever those might be. In this paper I use the term “rights” in its more specific sense, to designate a particular kind of moral claim. Roughly speaking, a “right” is a claim that may be, and ought to be, legally enforced. The enforcement of rights can be claimed as a matter of law and justice: it is not merely a matter of charity.

Most people think that non-human animals (hereinafter “animals”) have what philosophers call “moral standing.” That is, they believe that animals are the appropriate objects of moral concern, and they think that we have moral duties to treat animals in certain ways that are good for them for the sake of the animals themselves, and not just, say, for the sake of their owners or of keeping them profitable. Admittedly, many people think that these duties are of a rather weak kind: they think we ought to treat animals “as humanely as possible” given the ways that we use them. For example, according to some animal welfare laws, animals used in scientific research in ways that might be painful to them must be given anesthetics if it does not interfere with the purpose of the research. The duty to spare the animal pain is not taken to be a reason against doing the research. But most people admit at least a duty to prevent animals from experiencing “unnecessary” pain.

Most people also think that at least some of our duties to animals should be enforced by legal sanctions. That is why there are animal welfare protection laws on the books. Yet, for reasons I will describe below, many people think it is absurd to suppose that animals either do or should have rights, in the specific sense of rights I am concerned with here. This combination of views may look contradictory on the surface, but in fact, animal welfare laws do not usually grant the animals themselves any rights, at least if we think of a right as something that the right-holder can claim. For example, at least in the United States as things stand now, the legal representatives of animals cannot sue for the enforcement of animal welfare laws in the name of the animals themselves. Only human beings who can claim to have some interest of their own in the enforcement of animal welfare laws can sue to have them enforced (Sunstein 2004).

In this paper I argue that animals do have rights, but that these rights have a distinctive structure. I say that animals “do have rights” rather than merely that they “should have rights,” because the argument I will give is based on Immanuel Kant’s conception of rights, and is therefore in the natural rights tradition, according to which rights are grounded in morality, and can in a sense exist prior to, or independently of, any positive laws that are actually on the books. I will discuss the idea of a natural right further in section three. The distinctive structure of animals’ rights is this: Many of our rights are held against individuals, at least in the first instance: either against every individual in a group, as one’s civil rights are, or against some specific individuals, as when two people are bound by a contract or a promise. Animals, I argue, have rights that are in the first instance rights against humanity collectively speaking, humanity as a group, to be treated by people in ways that are consistent with what is good for them. The corresponding duties of individuals are derived from the duties we have collectively. I believe that as individuals we also have duties to treat animals well, and in particular to avoid cruelty. But I think that the duties of humanity collectively speaking are in a distinctive way the ground of rights that ought to have legal force.

I will try to demonstrate that there are such rights—rights against humanity collectively—by arguing for another important case of this kind of right. I believe that every human being who is in need of aid in order to survive in a reasonable condition has a right with exactly this structure—a right against humanity, collectively, to ensure the provision of that aid. Both that particular human right and animal rights are traceable to the same fact, namely the fact that humanity, collectively speaking, is in a position to exercise extensive control over the fate of all of the inhabitants of the planet with whom we interact.

'For Hierarchy in Animal Ethics' by Shelly Kagan in the same journal states

In my forthcoming book, How to Count Animals, More or Less (based on my 2016 Uehiro Lectures in Practical Ethics), I argue for a hierarchical approach to animal ethics according to which animals have moral standing but nonetheless have a lower moral status than people have. This essay is an overview of that book, drawing primarily from selections from its beginning and end, aiming both to give a feel for the overall project and to indicate the general shape of the hierarchical position that I defend there. In this essay, I contrast the hierarchical approach with its most important rival (which holds that people and animals have the very same moral status), sketch the main idea behind one central argument for hierarchy, and briefly review three potentially troubling implications of the hierarchical view. I close with a discussion of a promising possible solution to the most worrisome of the three objections. 

Kagan comments

One of the most striking developments in moral philosophy over the last half century has been the remarkable explosion in the discussion of animal ethics, that part of moral philosophy that deals with our moral obligations toward (nonhuman) animals. It would of course be an exaggeration, but only a mild one, to say that fifty years ago philosophical discussion of the treatment of animals was virtually nonexistent. The topic suffered from something close to complete neglect. On the rare occasion when a moral philosopher had something to say about animals, it was largely a matter of admitting—albeit only in passing—that it was wrong to be cruel to them, that the gratuitous infliction of pain was morally problematic. And then, for the most part, the matter was typically left at that.

Fifty years later the pendulum has swung the other way. Animal ethics is now a well entrenched subdiscipline within the field of moral philosophy as a whole. There is an ever growing cascade of books and articles devoted to the subject, a constant stream of journals and conferences. What’s more, it seems to me that a particular philosophical position within animal ethics has emerged as well.

I hesitate to say that it is the dominant view. I doubt if there is enough consensus in the philosophical literature on animal ethics to have much of anything substantive lay claim to a title like that. But it does seem to me that many theorists are drawn to some version of the view I have in mind.

Here’s the basic idea. According to this view, otherwise similar harms or benefits for people and animals count equally from the moral point of view. “Pain is pain,” as the point is sometimes put.1 In this sense, animals and people can be said to have the same moral status. To be sure, there are important differences between people and other animals, including differences in terms of which goods and which bads are likely to be at stake in any given case. These, in turn, can make it morally appropriate to treat people and animals differently. But that’s not because animals somehow count less than people do, from the moral point of view. On the contrary, similar goods (or similar bads) are to be treated the same, regardless of whose interests are at stake. That is to say, in and of itself it matters not at all whether we are talking about the interests of a person or the interests of an animal. Similar interests are to be given equal weight in our moral deliberation, regardless of whether we are dealing with a person or an animal. Strictly speaking, everyone has the same moral status.

For obvious reasons, it would be natural to call this position egalitarianism. It assigns the same weight to the interests of animals and of people. It gives the same moral status to both, considering neither group higher or lower than the other.

But for still other reasons, equally obvious, it would be potentially misleading to call the position in question egalitarianism, for the label is already in use as the name for views that hold that equality has moral significance in its own right (for example, that there is value in the equal distribution of welfare). Using the term “egalitarianism” for the first sort of view as well would only invite needless confusion. So we’ll need another name for the position I am trying to describe.

Accordingly, I propose to call the view in question unitarianism, since it holds that there is only one kind of moral status—a status shared by both people and animals. The name is far from ideal, I suppose, but I cannot think of a better one, and if nothing else it has the advantage that “unitarianism” is not already the name of any sort of prominent position in moral philosophy.

Unsurprisingly, unitarians differ from one another in all sorts of ways. For it is one thing to say that all of us—people and animals alike—have the same moral status. It is quite another thing to spell out what that status involves, just how it is that we are morally required to treat one another. Thus there can be, for example, unitarian utilitarians, instructing us to bring about the greatest balance of pleasure over pain. As unitarians, such utilitarians simply remind us to count the pleasures and pains of animals every bit as much as the pleasures and pains of people. And there can be unitarian deontologists as well, instructing us, say, to avoid harming the innocent (even if the results of harming them would be better overall). As unitarians, such deontologists remind us to avoid harming innocent animals, just as we are to avoid harming innocent people. In short, almost all of the sundry debates within normative ethics remain contentious and unresolved even if we embrace unitarianism. In and of itself, unitarianism doesn’t tell us how to treat people or animals; it only tells us that the same fundamental rights extend to all.

There is a lot to be said in favor of unitarianism. But one advantage should be apparent from the start. If we accept unitarianism then it is reasonably easy to see how to extend our moral theory so that it covers not only people but animals as well.

The truth, of course, is that in the past almost all of our moral theorizing has been limited to thinking about people. And while, as I have just observed, the debates in normative ethics are far from resolved, it does seem fair to say that for the most part what we have been working our way towards, by means of these debates, is a moral theory that would accurately tell us about the obligations that people have toward people. So even if you have such a normative theory worked out to your own satisfaction, strictly speaking you still face the question of how to extend or generalize that theory so that it covers animals as well. Unitarianism provides a simple and straightforward answer to that question: our interactions with animals are governed by the very same set of principles that govern our interactions with people (as spelled out by your favorite moral theory). Armed with a normative theory adequate for dealing with people, there is no further work to be done.

In contrast to the unitarian approach to animal ethics, it seems to me that common sense embraces, rather, a hierarchical approach, where animals count, but count in a lesser way. On this alternative view, people have a higher moral status than animals do. There are still restrictions on how we are to treat animals, but these are not the very same restrictions that govern our treatment of people. People have rights that animals lack, or have stronger rights, or perhaps a person’s interests count for more than (or count in different ways from) an animal’s.

Admittedly, one should probably hesitate before making confident assertions about common sense in this area. Some people apparently believe that animals don’t have any sort of moral standing at all; they are merely one more resource to be used as we see fit.

I suppose there is a sense in which a view like this—where animals lack moral standing altogether—could still be described as hierarchical, since people clearly have a higher status on this account than animals do. But similarly, there is a sense in which such a view could instead be called unitarian, since it holds that there is indeed only a single moral status (that had by people). But as I intend to use the terms, at any rate, neither label applies to those who simply deny the moral standing of animals. As I intend to use the terms, both unitarians and hierarchy theorists agree that animals do indeed count, morally speaking; animals have moral standing. Unitarians and hierarchy theorists differ only in terms of whether animals have the very same moral status as people or a lower one. Accordingly, if enough people believe that animals don’t count morally at all, then it would be a mistake to claim that common sense embraces a hierarchical approach.

I suspect that most people reject the extreme claim that only people count. What I take to be the common view, rather, is that animals do indeed count morally, but they simply do not count in the very same way that people do. Animals count for less.

Of course, here too, there remains tremendous room for disagreement. In addition to the familiar debates from normative ethics about the details of our obligations toward people, questions about the appropriate extension of our normative theory (so that it covers animals too) now become pressing and difficult. After all, it is one thing to say that animals count, but in a lesser way. It is quite another thing to spell out exactly how they count, what it really means to say they count in a lesser way. If the interests of animals are not to be counted in precisely the same fashion as the interests of people, how then are they to be counted? Although it does seem to me to be true that common sense accepts a hierarchical approach (or, at a minimum, it is true that a lot of people accept something like that idea), I don’t think there is anything close to a clear understanding of what the lesser standing of animals entails.

In my book, How to Count Animals, More or Less, I argue for a hierarchical approach to animal ethics. Given what I have just said, then, at best I can only partially claim the mantle of common sense. I do think that many readers will find my central thesis—that the right approach to animal ethics is a hierarchical one—to be fairly obvious, hardly worth arguing for. But at the same time, if I am right that there is nothing like a consensus about what the lower status of animals comes to, then I imagine that the various specifics that I discuss remain controversial.

Accordingly, at various places in the book I take some initial steps toward trying to develop a moral theory that is appropriately sensitive to differences in moral status. I explore, for example, what might be involved in extending some common distributive principles (such as egalitarianism, or a priority view) to animals, while taking into account the fact that animals count for less than people do, with some animals counting still less than others. Similarly, I ask what certain deontological principles or rights might look like—such as the right not to be harmed, or the right to self-defense—once we modify them so as to reflect the various differences in status that we find between people and animals, or among animals.

However, it is probably best to admit that in my book I don’t actually develop a detailed hierarchical theory. At best, I offer a sketch of what a theory like that might be like. In fact, truth be told, in many places—really, in most places—all I do is try to point out how desperately far we currently are from having an adequate moral theory when it comes to the treatment of animals. Unlike the unitarians, who think it a relatively trivial matter to extend moral theory to cover animals, I find myself thinking that we remain very much in the dark about how best to do that. I can only say how to count animals more or less.

I do however want to emphasize one further point. Although I defend a hierarchical approach to animal ethics, I do so with considerable misgivings, for I am afraid that some may come away thinking that my aim to is to defend an approach that would justify much or all of our current treatment of animals. After all, it seems reasonable to suggest that it is part of the commonly accepted view that our treatment of animals is, in the main (even if not in all specifics), morally acceptable; and I have already suggested that the common view is a hierarchical one. So in defending hierarchy, aren’t I defending—in broad strokes, at least, if not with regard to every detail—our current treatment of animals?

But nothing like this is remotely the case. Our treatment of animals is a moral horror of unspeakable proportions, staggering the imagination. Absolutely nothing that I say here is intended to offer any sort of justification for the myriad appalling and utterly unacceptable ways in which we mistreat, abuse, and torture animals.

In this regard the unitarians have an easier time of it. No one would be tempted for even a moment to suggest that we already treat animals in anything like the way that morality requires us to treat people. So unitarians are very well positioned to condemn current practices for the moral monstrosities that they are.

But that doesn’t make unitarianism the truth. On the contrary, it seems to me to be true both that animals count for less than people and yet, for all that, that they still count sufficiently that there is simply no justification whatsoever for anything close to current practices. It may be less straightforward to condemn our abuse of animals once one embraces a hierarchical view, but it is still important to do so.

Having said that, however, I should nonetheless warn the reader that the requisite arguments for the unjustifiability of our treatment of animals will not be found in my book. To work out those arguments with care one first needs to articulate in detail the appropriate hierarchical normative theory; and as I have already suggested, it seems clear to me that we are very far indeed from having anything like that. My book is intended as a contribution to the attempt to produce the relevant hierarchical theory. But the truth is, it throws out far more questions than it answers.

Law Lectures and Edutech

An article in a UK academic journal is a salutary reminder that Australian law schools have embraced new technologies ahead of overseas peers.

'Lecture recording: a new norm' by Michael J. Draper, Simon Gibbon and Jane Thomas in (2018) 52(3) The Law Teacher 316-334 comments

Classroom recording systems (systems that capture audio or video footage of a taught session) are being adopted in universities globally in part encouraged by studies that suggest that use of recording technology is associated with enhanced student engagement and perceptions of a course. Notwithstanding increased adoption as a result of perceived benefits, approximately only 10% of higher education institutions have adopted comprehensive lecture recording systems. This study considered the benefits and advantages of classroom recording systems. Academic concerns over student attendance and use of recordings are discussed with the implications for teachers, cognisant of the synergistic relationship between teachers, students and their learning. 

The authors go on

 Swansea University is a dual campus institution with 17,445 students (2015/16), with approximately 5000 students at a new Bay campus. Lecture recording was introduced at Swansea in September 2015 on the Bay campus in the Colleges of Engineering and Management, extending to full implementation in 2016/17. Implementation on the original Park campus was piloted as part of this study in September 2015 to explore the potential to extend recording in areas not STEM (science, technology, engineering and mathematics) related. The study sought to explore the potential for use by staff on this campus, student use, the value of recording for them, and impact on attendance. 

The Law Trial ran within the College of Law and Criminology at Swansea University over the academic years 2015 to 2017. The Law School was selected on account of its size and lack of exposure to lecture recording previously. This research is focused on a University sanctioned trial of the use of lecture recording within a programme of the College of Law and Criminology, for which the usage results, student and staff feedback would inform the University Learning and Teaching Committee to recommend, or not, a wider rollout of lecture recording at the University. This piece offers a two-year perspective as part of the wider literature rather than a definitive perspective. That said, the size of the study does not detract from the potential value of exploring the wider pedagogic impact of learning support and how best to respond to it. ... 

Students may benefit from classroom recording systems in a number of ways;

• they are able to: revisit concepts or topics and reinforce understanding in preparation for or as part of independent study and other class contact; 

• students themselves believe that having access to recording lectures helps learning; 

• review discussion and material prior to in-course or end of module assessments; 

• participate in blended, flipped classroom and online course delivery, view missed content and accommodate different learning styles; 

• manage the essential processing required to learn concepts – processing demands decrease when multimedia messages are presented in self-paced segments rather than as a continuous flow of information; 

• view missed content due to illness, timetable clashes, external factors. 

They conclude

A key issue in concluding this account is to consider what teachers can and should know about lecture recording from a pedagogic perspective in terms of the evidence, their own involvement and how to improve their practice. We may need to look beyond the flipped classroom approach to a wider pedagogic perspective on planning and pedagogic practice/methodology but still focused on learner-centred classroom activity and the value of recorded lectures.

For the more experienced teacher, while lecture recording has been available for some time, the sector has responded variably to enable teachers to keep pace with the pedagogic impact and potential issues within the process. For example, addressing course design to harness lecture recording to better effect and ensuring that learning outcomes reflect the common use of recording may be issues to explore. There may also be broader resource issues that institutions will have to address.

As our use of recording advances, we need to be developing other more sophisticated means of ensuring the integrity and dynamism of the teacher–student relationship, individually and collectively, and the discriminating use of policy.

The study demonstrates useful outcomes in relation to the non-STEM use of lecture recording, applicable more widely institutionally. This reinforces the positive conclusions of other recent studies and provides a context for flexible policy development.

Future research could include:

• wider institutional perspective; 

• proactive staff engagement to explore and deal with concerns which persist in the face of growing evidence to support and promote lecture recording; 

• impact on attendance – still mixed perspectives; 

• detailed comparison with STEM; 

• investigation of how students can use note-taking, revision and language support; 

• exploration of the visual components and the potential for wider contribution.

The key outcome is that institutions need to work to create conducive learning environments where staff and students can make best use of lecture recording across disciplines to enhance student experience. The apparent trend to substitution of recording in place of attendance and participation could be an artefact of the lessening familiarity with regularised attendance and structured learning, as previously delivered in higher education. Familiarity with technology may also contribute to a changed mode of learning, in these times of digital availability of range and depth. These developments can be seen as part of a progressive shift towards using the recordings in a surface way and acknowledging this enables pedagogic adaptation. While this is a small study, this slight trend may prove to be an issue reflected in subsequent investigation.

This contribution extends the existing perspective and adds to the body of evidence supporting the pedagogic use of lecture recording for teachers and students in times when student expectations are high. Students value such resources and inclusivity necessitates their widespread adoption.

Adverse Possession

In McFarland v Gertos [2018] NSWSC 1629 Sydney property developer Bill Gertos has won the ownership rights to a home in the inner west after finding it empty two decades ago, making some repairs and renting it. The heirs of the registered owner unsuccessfully sought recognition as the beneficial owners of the property.

Gertos told the NSW Supreme Court court he came across the Ashbury home in 1998. The property had been unoccupied since its last tenant died the same year . Gertos said the house was open and "the rear door was off its hinges and placed to the side". He changed the locks, made some repairs and began renting it out.

Gertos said he spent around $35,000 on repairing the house in 1998 and $108,000 in 2014 on further renovations. There are reports that the property is now worth around $1.6 million. Gertos applied to the NSW Registrar-General in 2017 under s 45D(1) of the  Real Property Act 1900 (NSW), seeking to to be named the proprietor of the fee simple - owner - of the land.  An application under s 45D is a means whereby a person in adverse possession of land under the Act can in certain circumstances supplant a registered proprietor. In October 2017, the Registrar-General gave notice of its intention to grant the application.

That was challenged by the family of the registered owner, Henry Thompson Downie, who died in 1947. He apparently without leaving a will. and no representative has since been appointed in respect of the deceased estate (ie there has been no grant of administration). Downie's daughter and two grandchildren claimed they had to leave the house sometime after World War II because of a white ant infestation.

Gertos submitted that the plaintiffs lacked standing to seek the declaration about his entitlement to be registered on the title. He submitted that in any event the evidence showed that he has been in adverse possession of the property since about late 1998 and any claim to recover the land from him would be barred pursuant to the relevant provisions of the Limitation Act 1969 (NSW).

The Court states

Mr Downie acquired the property at 6 Malleny Street in 1927. One of his two children, the first plaintiff, gave evidence that Mr Downie and his wife lived in the property with the children until shortly prior to the Second World War. The first plaintiff deposed that at that time Mr Downie announced that the family had to leave the house because it was “full of white ants”. The family moved to a house in Queen Street, Ashfield, for a time, and to other houses thereafter. The first plaintiff deposed that the family never returned to 6 Malleny Street and neither did the family ever talk about it. The second plaintiff, a grandson of Mr Downie, gave evidence to similar effect, including that the property was “never discussed in terms of ownership”. Mr Downie died in 1947. He was survived by his wife. There is no evidence that he left a will. As I have already mentioned, no grant of administration has been made in respect of Mr Downie’s intestate estate. 

It appears to be undisputed that at the time of Mr Downie’s death the property was subject to a tenancy in favour of a Mrs Grimes that was likely a “protected tenancy”. The evidence is clear that Mrs Grimes continued to reside in the property, regularly paying a small rental to Ford Real Estate, until shortly prior to her death, which occurred on 19 April 1998. Evidence was adduced by the plaintiffs from numerous persons who at one time or another were residents of, or frequent visitors to, Malleny Street. Some of those witnesses gave evidence that after Mrs Grimes died the property remained vacant for a period, the estimates ranging from “a short period” to “a number of months” to “approximately one year”, before new tenants moved in. Some of the witnesses gave evidence to the effect that over the course of the years that followed, various tenants occupied the property from time to time. Some of the witnesses gave evidence that they did not know Mr Gertos and had never met him. 

Mr Gertos was formerly an accountant by profession. He gave evidence that he came to notice the property at 6 Malleny Street when he went to the street to visit clients for whom he prepared taxation returns. He stated that the property appeared to be unoccupied, and falling into disrepair. He said that he gained the impression that the building was empty and that no one was maintaining it, and further that this state of affairs continued for over a year. Mr Gertos says that his curiosity was sparked, and that he spoke to one of his clients about the property. He recalls being told that an elderly lady had lived in the house for many years but had moved out or died, and since then the property had been vacant. Mr Gertos says that in 1998 he concluded that the property was in fact vacant and unoccupied. 

Mr Gertos deposed that many years earlier he was employed by a senior accountant who had spoken to him about his own experience of obtaining title to a property “by adverse possession”. Mr Gertos says that in 1998 he had it in the back of his mind “that this may be a case where it may be possible to obtain title to the property by possession of it over a sufficiently long period of time if nobody else was interested in it”. 

Mr Gertos deposed that he instructed a solicitor (Mr Murphy) to ascertain the name of the owner, whether the owner was alive, and if not whether any grant of probate or administration had been made. He says that inquiries were made but did not yield any useful information. Mr Gertos recalls that Mr Murphy (who is now deceased and whose former firm was unable to locate any records of the retainer) gave some advice to the effect that Mr Gertos would need to occupy the property, pay the bills for the property, and look after it as if it was his own for at least 12 years, or perhaps 14 years. Mr Gertos also recalls Mr Murphy saying that if Mr Gertos could prove to the Registrar-General that he had been in possession of the property to the exclusion of others for the necessary period, he could request the Registrar-General to register him as the owner of the property.

Darke J found Gertos had sufficient evidence he invested money into fixing the home, paid taxes on it and leased it to rental tenants.

I ;am comfortably satisfied that since about late 1998 Mr Gertos has been in factual possession of the land with the intention of possessing the land, In essence, Mr Gertos succeeded in taking and maintaining physical custody of the land, to the exclusion of all others, and he has assumed the position of a landlord." 

The family was ordered them to pay Gertos's legal costs.

In 2015 the NSW Land and Environment Court held Gertos personally liable for demolishing a heritage row of shopfronts on Parramatta Road in Sydney. See for example Leichhardt Council v Geitonia Pty Ltd (No 6) [2015] NSWLEC 51 and Geitonia Pty Ltd v Inner West Council; Gertos v Inner West Council [2016] NSWCCA 186.

 Leichhardt Council had approved a redevelopment on the condition the facade was preserved. Gertos and his development company Geitonia disregarded the order, resulting in Gertos being fined $150,000 and his company another $50,000.

Brisco J stated

At the end of the day Mr Gertos stands out as far more culpable than the other defendants because they offended because of what Mr Gertos did, 

The sentence needs to operate as a powerful factor in preventing the commission of similar crimes by persons who might be tempted to do so. 

The planning system would be ineffective if developments were allowed to continue without, or in contravention of, development consents.

The ABC reported that

Solicitor for Mr Gertos, James Jordan, apologised to the judge for his client's non-attendance in court, and said he had another engagement.

 Perhaps he was crying all the way to the bank. Special leave to appeal was not granted in Gertos & Anor v Inner West Council [2016] HCASL 338

Brexit and Genomics

'United Kingdom: Transfers of Genomic Data to Third Countries' by Mark J. Taylor, Susan Wallace and Megan Prictor in (2018) 137 Human Genetics 637-645 comments

In the United Kingdom (UK), transfer of genomic data to third countries is regulated by data protection legislation. This is a composite of domestic and European Union (EU) law, with EU law to be adopted as domestic law when Brexit takes place. In this paper we consider the content of data protection legislation and the likely impact of Brexit on transfers of genomic data from the UK to other countries. We examine the advice by regulators not to rely upon consent as a lawful basis for processing under data protection law, at least not when personal data are used for research purposes, and consider some of the other ways in which the research context can qualify an individual’s ability to exercise control over processing operations. We explain how the process of pseudonymization is to be understood in the context of transfer of genomic data to third parties, as well as how adequacy of data protection in a third country is to be determined in general terms. We conclude with reflections on the future direction of UK data protection law post Brexit with the reclassification of the UK itself as a third country.

Climate Change Litigation

'A ‘Next Generation’ of Climate Change Litigation?: An Australian Perspective' by Jacqueline Peel, Hari M. Osofsky and Anita C Foerster in Oñati Socio-Legal Series (Forthcoming) comments

Since conclusion of the Paris Agreement and the high-profile Urgenda case, potential new avenues for strategic climate litigation have received considerable attention in many countries, including Australia. Australia already has a substantial climate jurisprudence, primarily involving administrative challenges under environmental laws. This paper aims to examine the prospects for a “next generation” of cases focused on holding governments and corporations to account for the climate change implications of their actions. We draw on analysis of existing legal precedent and emerging cases to explore four key aspects: drivers for next generation lawsuits, potential legal avenues, and likely enablers and barriers. The paper uses the Australian experience as a case study but draws also on litigation trends globally. We find that the most fruitful strategy for future climate change litigation is likely to be one that advances lower risk cases building from the base of existing litigation, while simultaneously attempting novel approaches.

Decolonisation

'Decolonizing Privacy Studies' by Payal Arora in (2018) Television and New Media comments 

This paper calls for an epistemic disobedience in privacy studies by decolonizing the approach to privacy. As technology companies expand their reach worldwide, the notion of privacy continues to be viewed through an ethnocentric lens. It disproportionately draws from empirical evidence on Western-based, white, and middle-class demographics. We need to break away from the market-driven neoliberal ideology and the Development paradigm long dictating media studies if we are to foster more inclusive privacy policies. This paper offers a set of propositions to de-naturalize and estrange data from demographic generalizations and cultural assumptions, namely, (1) predicting privacy harms through the history of social practice, (2) recalibrating the core-periphery as evolving and moving targets, and (3) de-exoticizing “natives” by situating privacy in ludic digital cultures. In essence, decolonizing privacy studies is as much an act of reimagining people and place as it is of dismantling essentialisms that are regurgitated through scholarship. 

Arora goes on to state

 Privacy studies is in its heyday. What was once on the fringes of multiple disciplines is now centerfold and for good reason. Innovations such as social media, ubiquitous computing, mobile platforms, and smart technologies are increasingly datafying our lives. Big data analytics capitalizes on these massive datasets to address previously intractable problems across wide-ranging fields including health care, education, retail, and banking. While this has yielded enormous benefits for the state and the market, it has alarmingly come at the cost of privacy (Cohen 2012). 

This has led to the burgeoning of studies from diverse disciplines in the last decade to gauge what privacy is “worth” to individuals (Acquisti et al. 2013; Heikkilä 2018; Kokolakis 2017). Implicit in this body of research is the notion of privacy as a currency, as a rational trade-off, and as an exchange value to enable policy makers, legal scholars, and businesses to estimate how much customers care about the protection of their personal data. Privacy studies has come to be dominated by this capitalistic worldview. Privacy as a value is subsumed by market logic. This is embedded in the prevailing “dataism” ideology of objectivity arising from the quantification of our social behavior, revealing insights into our personal lives (van Dijck 2014). 

In recent years, a number of scholars have sounded the alarm on the mythologies perpetuated by big data claims, and the normalizing of the “privacy rich” and “privacy poor” divides in access, management, ethics, representation, and interpretation (Arora 2016; Boyd and Crawford 2012; Couldry and Powell 2014; Milan and Trere 2017a; Pasquale 2015). There is a demand to estrange data from demographic generalizations and question underlying cultural assumptions, providing privacy its “contextual integrity” (Nissenbaum 2009). Of particular concern are the new forms of discrimination emerging through predictive data analytics, marginalizing the already vulnerable subjects of society (Leurs and Shepherd 2017). Studies on privacy harms through datafication such as racial profiling and policing (Noble 2018), biometric surveillance in the postcolonial context (Arora 2016), and state automation of welfare systems (Eubanks 2018), have pushed this agenda further. 

At the heart of this momentum is a call to recognize the deeply structured, essentializing and historically reproduced power asymmetries within social and technical norms, knowledge, values, and infrastructures and counter this by pushing forward the notion of the “South” as “resistance, subversion and creativity as responses to situations of marginalization of various kinds” (Milan and Trere 2017b). This essay responds to this call, particularly on the sidelining of the Global South as it pertains to privacy studies.

Uncertified Practitioners and Prediction

Another practitioner without certification bites the dust.

The Australian Health Practitioner Regulation Agency (AHPRA) reports that Majid Rahebi was convicted in the Local Court of New South Wales after pleading guilty to all charges for falsely representing that he was authorised or qualified to practise as a dentist and $18,750 for performing restricted dental acts. He was also ordered to pay approximately $19,950 in costs.

Rahebi’s MJ Dental Care Pty Ltd was also charged with falsely representing that Mr Rahebi was authorised or qualified to practise as a dentist. The company was fined $11,250.

The charges related to Mr Rahebi’s conduct between 15 November 2017 and 24 February 2018 while working at MJ Dental Care, located in Guildford West, NSW.

Rahebi was charged on 14 May this year with 44 counts of falsely representing that he was a registered dentist and 31 counts of performing a restricted dental act. Rahebi’s business,

AHPRA states that Rahebi has never been registered as a dentist or as any other health practitioner in Australia and holds no formal dental qualifications, although other reports indicate he had been a dental technician in Iran.

 He had provided dental services through MJ Dental under the guise of being a registered dental practitioner. He represented himself to the public and to his patients as being authorised or qualified to practise in the dental profession. He consulted with patients and carried out dental treatment, including restricted dental acts. The restricted dental acts included significant invasive procedures such as root canal treatment, crowns and tooth extractions. Rahebi additionally possessed and administered anaesthetics (ie restricted prescription medications) without authorisation.

Considering potential revenue from the breaches of the law a higher scale of penalties might serve as a useful deterrent for such behaviour.

In June this year AHPRA noted Edward Lipohar was convicted in the Ringwood Magistrates’ Court after pleading guilty to three charges. They included holding himself out as (claiming to be) a dental specialist (orthodontist), and two charges of performing restricted dental acts on two patients.

 The charges related to Lipohar’s conduct between November 2015 and September 2016 while working at an orthodontic business with premises in Victoria. During this time he attempted to carry out orthodontic procedures, including fitting corrective or restorative dental appliances. Orthodontic procedures are restricted dental acts, restricted to  someone registered as a a dentist.  Lipohar continued to attempt those treatments after being directed to stop by AHPRA in August 2016. 

Lipohar has never held registration as a dental practitioner or as a registered health practitioner or student under the National Law with any National Board.

AHPRA comments

The court heard Mr Lipohar had little knowledge of the correct procedure and the patients he attempted to treat were unaware he lacked the necessary skills. Orthodontists identified significant problems with one patient’s teeth in subsequent years, while another experienced pain after Mr Lipohar fitted a retainer. Complaints were later submitted to AHPRA which filed charges against Mr Lipohar following an investigation.   

At sentencing, Mr Lipohar was ordered to pay legal costs to AHPRA of $25,000 in addition to the $65,000 fine.

'Outcomes of notifications to health practitioner boards: a retrospective cohort study' by Matthew J. Spittal, David M. Studdert, Ron Paterson and Marie M. Bismark in (2018) 16(38) BMC Medicine is a useful complement to 'Mind the Information Gap: Quantifying the Courts’ Role in Responding to Patient Harm, 1989 to 2013' by Wendy Bonython and Bruce Baer Arnold in (2018) 25(2) Journal of Law and Medicine 549-571, noted here.

Spittal et al  note

Many countries entrust oversight of doctors and other health professionals to practitioner boards. A core mission of such boards is to protect the public from unsafe practice. Boards rely on patients, practitioners and their peers, employers and other agencies to bring risks to their attention and can employ a range of assessment and investigation processes to evaluate concerns about a practitioner’s health, performance or conduct. In cases where a practitioner poses a risk to patient safety boards can initiate a range of actions, including imposing conditions on the practitioner’s registration or suspending their licensure to practice. Actions that restrict ability to practice may have profound effects on affected practitioners – damaging livelihood, reputation, and potentially personal well-being. Imposing such actions therefore requires boards to chart a delicate course between protecting patients from harm and respecting the rights of practitioners. 

Previous research has examined factors associated with disciplinary action against doctors. Studies have compared disciplined doctors with controls drawn from the broader medical workforce, with colleagues who were investigated or charged but not disciplined, and with colleagues who incurred less serious sanctions. In general, these studies identify several risk factors for incurring disciplinary sanctions, including male sex, late career stage, and practice in certain specialties (surgery, obstetrics and gynecology, psychiatry, and general practice). In addition, longitudinal studies of doctors have shown higher rates of disciplinary actions among physicians who performed poorly during residency and physicians who lack specialty certification. Relatively few studies have focused these types of analyses on nurses, and fewer still have examined pharmacists, psychologists, dentists, and other allied health professions. Moreover, this body of research tends to be profession specific. For example, no previous studies have directly compared doctors’ likelihood of regulatory action with risks experienced by other health practitioners. 

In Australia, 14 health professions, including doctors, nurses, dentists, psychologists, and pharmacists, are regulated by a unified scheme that has operated since 2010. The scheme covers all states and territories, which creates a rare opportunity to use national, longitudinal data to examine the incidence and outcomes of “notifications of concern” (hereafter, “notifications”) relating to multiple professions. We conducted a retrospective cohort study of all notifications received by the national agency over a 2 year period. We estimated the incidence of notifications among health practitioners and tested for associations between various characteristics of notified practitioners (e.g., age, sex, profession) and notifications (e.g., issue type and source of notification) and the adjudicated outcomes of these notifications, particularly restrictive actions. 

Our goal was to advance understanding of how this key regulatory regime operates. We were particularly interested in generating information with the potential to facilitate efficient adjudication and guide prevention efforts. We hypothesized that there would be systematic differences in rates of notification between professions, and that there would be relatively high rates of restrictive action against practitioners from certain professions (e.g., psychologists) and for notifications about certain issues (e.g., drug or alcohol misuse). ...

The authors comment

This study of notifications lodged over a 2-year period against practitioners from 10 health professions found an overall rate of six notifications per 1000 practitioners per year. Doctors and dental practitioners had relatively high notification rates and nurses and midwives had relatively low rates. Final determinations were made on the majority of notifications within a year, although around one in ten took more than 2 years to resolve. In nearly 70% of cases, no further action was taken. About 10% of notifications resulted in restrictive actions, almost all of which involved some form of undertaking or conditions on practice. Only 21 notifications – about 0.3% of the total lodged – resulted in removal from practice. Notifications from peers and employers, notifications about health problems (particularly drug or alcohol problems), and notifications against dentists and psychologists had the highest odds of ending in restrictive actions... 

The regulation of health practitioners in Australia has the primary objective of protection of the public by ensuring that only competent and ethical practitioners are registered. Handling notifications of concern about a practitioner’s health, conduct or performance looms as a key role of the national multi-practitioner regulation agency, with a complex apparatus for receiving, assessing and investigating notifications. This study suggests some interesting lessons for other international health practitioner boards. 

We found that notifications to practitioner boards about the health, conduct or performance of a health practitioner are a rare event, and responses to notifications that involve restrictive actions, such as conditions on or removal from practice, are rarer still. 

The probability of restrictive actions varied widely depending on the source of the notification (with notifications from peers more likely to result in restrictive action than those made by patients) and by profession (with notifications about doctors less likely to result in restrictive actions than those against other professions). The evidence that notifications made by fellow practitioners or employers are much more likely to lead to restrictive action than notifications made by patients and relatives or by complaint commissioners (which generally respond to patient complaints) is perhaps unsurprising. One possible explanation is that peers are better positioned to recognize legitimate bases for a notification than are patients. Relatedly, peers may refrain from notifying in all but the most egregious instances. A competing explanation relates to the adjudication process: notifications by peers may receive closer attention than notifications by patients. Given the increasing emphasis on the role of patients and families in patient safety, it would be of concern if issues raised by those on the receiving end of care are discounted in assessment processes dominated by peer opinion. 

We found that nearly half of all notifications were due to concerns about performance issues, yet very few of these notifications resulted in restrictive actions. In contrast, relatively few notifications concerned health impairments, but a substantially larger proportion of them ended in restrictive actions. Part of the explanation for this difference may relate to issues of evidence and proof. What constitutes an unacceptable level of performance may be more difficult to determine, both for the notifier and the adjudicator, than the existence of an impairment that endangers safe care. Performance concerns inevitably raise the specter of judging what is acceptable care, an area where regulators (advised by members of the profession) have always treaded warily. Professional reticence to criticize poor care and vigorous defense lawyers likely also play a part. 

Consistent with previous studies, notification rates were higher among male practitioners and older practitioners. However, there was no difference between males and females in the odds of restrictive action once a notification was received, and there was no trend for age. 

Finally, the variation we observed between professions, both in the rate at which notifications were made, and the rate at which notifications ended in restrictive actions, is striking. Doctors, for example, had one of the highest rates of notifications, but those notifications were less likely to result in restrictive actions than in other professions. There are several possible explanations for such variation – they may be due to interprofessional differences, such as whether substandard care may directly cause harm (including pain), in the underlying rate of unprofessional behaviors, in the likelihood that any given episode of unprofessional behavior will be notified, in “case mix” (i.e., the nature and legitimacy of notifications), and in how strictly boards respond. We cannot disentangle these competing explanations because we did not observe unprofessional behavior directly, other than through the decisions of boards in cases that reach them.