Environment and Integrity Commission

'Clean Energy Justice: Charting an Emerging Agenda' by Shelley Welton and Joel B. Eisen in Harvard Environmental Law Review (Forthcoming) comments

The rapid transition to clean energy is fraught with potential inequities. As clean energy policies ramp up in scale and ambition, they confront challenging new questions: Who should pay for the transition? Who should live next to the industrial-scale wind and solar farms these policies promote? Will the new “green” economy be a fairer one, with more widespread opportunity, than the fossil fuel economy it is replacing? Who gets to decide what kinds of resources power our decarbonized world? In this article, we assert that it is useful to understand these challenges collectively, as part of an emerging agenda of “clean energy justice.” Mapping this agenda highlights the equity challenges that will attend the transition to clean energy, and allows for more comprehensive, creative approaches to legal and policy solutions. 

A cleaner energy economy does not ineluctably translate into a more just economy. We identify four considerations that will be critical to ensure that clean energy does not entrench widening inequalities in wealth and power: (1) how to fund the transition; (2) who benefits from the upsides of the new clean energy economy, including green jobs and new technologies like rooftop solar panels; (3) who participates in decisions about the shape of the new clean energy economy; and (4) how and where new clean energy infrastructure is sited. Drawing from available data, we describe why there are real risks that the gains of clean energy might be unequally distributed, while the costs fall on rural communities and non-adopters of new technologies, thus exacerbating inequality while greening the grid. And through original empirical research, we highlight the challenges of full and equal participation in the esoteric, technocratic procedures of energy law. 

The present moment is a critical one for bringing these diverse considerations together into this overarching agenda. The U.S. energy system is in the early days of a long transition away from fossil fuels towards clean energy. It is time for energy lawmakers and energy law scholars to better anticipate the distributive and procedural justice concerns that will attend this transition, and to forge new ways to address them.

''Sacrifice Zones' in the Green Energy Economy: Toward an Environmental Justice Framework' by Dayna Nadine Scott and Adrian Smith in (2018) 62(3) McGill Law Journal 861 comments

 The environmental justice movement validates the grassroots struggles of residents of places which Steve Lerner refers to as “sacrifice zones”: low-income and racialized communities shouldering more than their fair share of environmental harms related to pollution, contamination, toxic waste, and heavy industry. On this account, disparities in wealth and power, often inscribed and re-inscribed through social processes of racialization, are understood to produce disparities in environmental burdens. Here, we attempt to understand how these dynamics are shifting in the green energy economy under settler colonial capitalism. We consider the possibility that the political economy of green energy contains its own sacrifice zones. Drawing on preliminary empirical research undertaken in southwestern Ontario in 2015, we document local resistance to renewable energy projects. Residents mounted campaigns against wind turbines based on suspected health effects and against solar farms based on arable land and food justice concerns, and in both cases, grounded their resistance in a generalized claim, which might be termed a “right to landscape”. We conclude that this resistance, contrary to typical framings which dismiss it as NIMBYism, has resonances with broader claims about environmental justice and may signal larger structural shifts worth devoting scholarly attention to. In the end, however, we do not wholly accept the sacrifice zone characterization of this resistance either, as our analysis reveals it to be far more complex and ambiguous than such a framing allows. But we maintain that taking this resistance seriously, rather than treating it as merely obstructionist to a transition away from fossil capitalism, reveals a counter-hegemonic potential at its core. There are seeds in this resistance with the power to push back on the deepening of capitalist relations.

The ACT Legislative Assembly - vaguely aware, it seems, of disquiet about land deals in the Territory - has released the report of the Select Committee on Independent Integrity Commission.

The recommendations of that committee are

R 1 2.7 The Committee recommends that the ACT Government table a bill based on the Integrity Commission Bill 2018 Exposure Draft, incorporating amendments recommended in this report, and that the Assembly debate that bill. 

R2 2.8 The Committee recommends that the Assembly not proceed with the Anti-corruption and Integrity Commission Bill 2018. 

R3 2.11 The Committee recommends the following process could enable the passage of the legislation within the current sitting pattern:

The ACT Government respond to this report by instructing the Parliamentary Counsel Office to amend the Exposure Draft to give effect to any recommendations in this report with which the ACT Government agrees, creating a draft bill. 

The ACT Government further instruct the Parliamentary Counsel Office to prepare, but not incorporate into the draft bill, draft amendments to give effect to any recommendations in this report with which the ACT Government does not agree. 

Both the draft bill and draft amendments be made available to all members, and the legal adviser of the Standing Committee on Justice and Community Safety (Legislative Scrutiny role), by close of business 16 November 2018. 

During the week beginning 19 November 2018 members representing each party, their advisers, parliamentary drafters and any other officials that may be of assistance meet to discuss and refine the draft bill. 

On 27 November 2018 the Government table a draft bill, incorporating any amendments agreed during meetings the proceeding week. 

The Assembly suspend Standing Orders in order to debate the bill during that week. 

R4 2.16 The Committee recommends that commencement of the legislation be staggered to allow for the appointment of a Commissioner and Commission prior to the receipt of complaints. 

R5 2.17 The Committee recommends that s2(2) of the Exposure Draft be reviewed to confirm whether delayed commencement provisions should be linked to s6. 

R6 2.20 The Committee recommends that all definitions be included in the legislation, not defined in regulation. 

R7 3.8 The Committee recommends that the criteria for eligibility for Commissioner and Inspector allow for the appointment to the role of a former judge, as listed in s26(1) of the Exposure Draft, or an Australian legal practitioner of not less than 10 years standing. 

R8 3.9 The majority of the Committee recommends that the criteria for eligibility for Commissioner prohibit the appointment of a former member of the Legislative Assembly to the role. 

R9 3.12 The Committee recommends that the terms of appointment for a Commissioner and CEO of the Commission be of different lengths to ensure continuity of operations. 

R10 3.15 The Committee recommends that the provisions relating to the Commissioner’s conflicts of interest in s29 of the Exposure Draft be reviewed to consider improved drafting, including drawing on s102 of the Bill. 

R11 3.20 The Committee recommends that the maximum term of appointment of an acting Commissioner be defined in the legislation as six months and that any reappointment to a further six month term be subject to consultation with the relevant Assembly committee. 

R12 3.21 The Committee recommends that the legislation be amended to include the explanatory note to s97 of the Bill regarding acting appointments. 

R11 3.24 The Committee recommends that bankruptcy and insolvency be grounds to suspend a Commissioner. 

R14 3.27 The Committee recommends that the ACT Government consider whether failure by the Commissioner to disclose conflict of interest matters would be considered “misbehaviour” under s33 of the Exposure Draft, as that term is generally understood, or whether the more specific provisions on this matter in s105 of the Bill should be adopted. 

R12 3.30 The Committee recommends that the ACT Government consider the question of how a CEO of the Commission could be suspended and, if necessary, insert suspension provisions in the legislation. 

R13 3.37 The majority of the Committee recommends that the legislation require that staff of the Commission not have been an ACT public servant in the last 5 years. 

R14 3.38 The Committee recommends that the legislation require the Commission to develop and publish guidelines for personal interest disclosures requested under s48 of the Exposure Draft. 

R15 3.41 The Committee recommends that the legislation authorise the Speaker to seek administrative support and advice in discharging the Speaker’s statutory role under the legislation, in a similar way as s37B of the Auditor-General’s Act 1996 and s37A of the Ombudsman Act 1989. 

R16 3.42 The Committee recommends that the Standing Committee on Administration and Procedure examine the level and manner of support to the Speaker in performing her statutory roles under Officer of the Assembly legislation. 

R17 4.11 The Committee recommends that the legislation be examined to ensure that it incorporates the full extent of the NSW definition of corrupt conduct, as reflected in the Bill, but maintain the focus on “serious corrupt conduct” and “systemic corrupt conduct”. 

R18 4.15 The Committee recommends that the ACT Government consider whether the legislation should explicitly state that the Commission has no jurisdiction prior to 1989. 

R19 4.25 The Committee recommends that the legislation be amended to make previous investigation by another body a consideration in the Commissioner’s determination if an investigation is in the public interest and not a bar to investigation by the Commission. 

R20 4.28 The Committee recommends that the ACT Government consider whether the definition of public authority in the legislation should be amended to cover persons that do not have a contractual relationship with government but are licenced by government to provide certain services. 

R21 4.37 The majority of the Committee recommends that the definition of public official include members of the judiciary and judicial officers. 

R22 4.51 The Committee recommends that the legislation be amended so that Senior Executive Service officers are included in mandatory corruption notification provisions in s60 of the Exposure Draft. 

R23 4.52 The Committee recommends that provisions on mandatory corruption notifications be amended to make it clear that the following individuals are not subject to those provisions in performance of their duties but are subject to those provisions regarding possible serious or systemic corrupt conduct within their own organisations:  The Auditor-General;  The Ombudsman;  The Electoral Commissioner;  The Human Rights Commissioner; and  The Clerk of the Legislative Assembly. 

R24 4.53 The Committee recommends that the Speaker not be exempt from mandatory corruption notification provisions. 

R25 4.54 The Committee recommends that provisions on mandatory corruption notifications be amended to remove reference to a member of staff of an MLA. 

R26 4.60 The Committee recommends that the legislation include an offence of failing to make a mandatory corruption notification 

R27 4.61 The Committee recommends that the Commission provide comprehensive training and education material to anyone subject to mandatory corruption notification requirements. 

R28 4.68 The Committee recommends that s56(1) of the Exposure Draft be redrafted by removing “and” between the items on the list of ways in which a corruption complaint may be made. 

R29 4.73 The Committee recommends that the legislation be amended so that a complainant loses their absolute privilege from defamation should they publicly disclose the contents of a complaint prior to the Commission making it public. 

R30 4.79 The Committee recommends that the Standing Committee on Administration and Procedure develop amendments to continuing resolution 5AA to permit the Legislative Assembly Commissioner for Standards to refer matters to the Commission and to receive and act on referrals from the Commission. 

R31 4.80 The Committee recommends that the legislation be amended by deleting s57(4)(d) to remove the Legislative Assembly Commissioner for Standards from the list. 

R32 4.81 The Committee recommends that the legislation be amended by adding the Legislative Assembly Commissioner for Standards, the Speaker and Deputy Speaker to the list of entities in s104(2) from which the Commissioner may not ask for written reports 

R33 4.84 The Committee recommends that the legislation be reviewed to ensure that s103(1)(a) of the Exposure Draft, which prevents the Commission from referring a corruption report that it does not have the power to investigate, does not obstruct effective cooperation between integrity bodies. 

R34 5.6 The Committee recommends that the legislation state that where a matter of parliamentary privilege arises in the course of the exercise of the Commission’s powers, it shall be dealt with by the Assembly. 

R35 5.7 The Committee recommends that the ACT Government obtain and publish a legal analysis on the impact s270(a)(iv) of the Exposure Draft, and similar provisions in the Public Interest Disclosure Act 2012, has on the Assembly’s rights as regards s24(3) of the Australian Capital Territory (Self Government) Act 1988. 

R36 5.10 The Committee recommends that the ACT Government explore whether specific provision needs to be made in the legislation to permit the Commissioner to make use of Members’ declarations of interest. 

R37 5.16 The Committee recommends that the Standing Committee on Administration and Procedure consider the arrangements necessary for an independent process to advise on claims of parliamentary privilege that arise during Commission investigations and present a proposal to the Assembly. 

R38 6.15 The Committee recommends that the legislation require the Commissioner to issue guidelines about the Commission’s policies and procedures, and that the ACT Government consider whether the guidelines should be a notifiable instrument. 

R39 6.20 The majority of the Committee recommends that the legislation prohibit the use of summons in preliminary inquiries. 

40 6.27 The Committee recommends that the ACT Government re-examine the timeframes in the legislation under which persons arrested under an arrest warrant must be bought before the Commission to ensure consistency with the language and timeframes used in other relevant pieces of ACT legislation. 

41 6.28 The Committee recommends that s156(3)(e) of the Exposure Draft be redrafted by deleting the phrase “if the magistrate has contacted the person” and making s156(3)(e)(i) and s156(3)(e)(ii) into s156(3)(f) and s156(3)(g) respectively. 

42 6.36 The Committee recommends that s186 of the Exposure Draft be amended to give the Commission the discretion to withhold a proposed investigation report from a relevant entity if there are reasonable grounds to believe that the sharing of the proposed investigation report could prejudice a prosecutorial or serious disciplinary action. 

43 6.49 The Committee recommends that the legislation be amended to include a general offence of obstructing the Commissioner, Inspector, their staff and witnesses, similar to Part 9 of New South Wales Independent Commission Against Corruption Act 1988. 

44 7.5 The Committee recommends that the ACT Government amend the Exposure Draft to contain a clear statement of the Inspector’s powers in a similar manner as s57 of New South Wales’ Independent Commission Against Corruption Act 1988. 

45 7.8 The Committee recommends that the ACT Government remove any provisions from the legislation that require automatic reporting of the Commission’s use of its powers to the Inspector, including sections 79, 87, 139, 144, 155, 158, 166 and 192. 

R46 7.13 The Committee recommends that the legislation omit reference to any requirement that inspectorate staff be employed by the Territory or under Territory law to enable a Commonwealth agency to be appointed as Inspector if so chosen. 

R47 7.14 The Committee recommends that the legislation be amended so that any exercise by the Speaker of the power under s236(2) to make arrangements for another person to exercise the functions of the Inspector be subject to the consultation and Assembly resolution requirements of s222(2)(a) and s222(3)(b). 

R48 7.17 The Committee recommends that the legislation be amended by deleting s260 of the Exposure Draft, removing the power of the Inspector to recommend that an acting Commissioner be appointed. 

R49 7.20 The Committee recommends that the Commissioner be required to maintain a register of conflicts of interest and any steps taken to manage them within the Commission and that the register be available to the Inspector. 

R50 7.21 The Committee recommends that the Inspector report to the relevant Assembly committee on the extent to which the Commission is managing conflicts of interest. 

R51 7.25 The Committee recommends that the Assembly establish a dedicated committee with oversight of the Commission. 

R52 7.26 The Committee recommends that the legislation be amended to replace references to the “presiding member of the relevant Assembly committee” with “the relevant Assembly committee”. 

R53 8.5 The Committee recommends that the legislation be amended to remove reference in s23(1)(f) to the Commission providing leadership to the Legislative Assembly. 

R54 8.15 The Committee recommends that the ACT Government establish a comprehensive review of the Public Interest Disclosure Act 2012 as soon as is possible with the aim of having changes implemented by 2020.

Employee Surveillance

'Employee Surveillance: The Road to Surveillance is Paved with Good Intentions' by Lilian Edwards, Laura Martin and Tristan Henderson comments

Employee surveillance was for some while the Cinderella sister of surveillance studies: neither as outright shocking to citizens as state surveillance in the post Snowden era, nor as ubiquitously discussed as consumer targeting and profiling in the “surveillance capitalism” ecology of social media, search and e-commerce platforms like Google, Facebook, Amazon et al. Yet employee surveillance is increasingly universal, both at hiring stages and after work has commenced, and often dominates selection, promotion and firing. Much publicity has particularly recently surrounded surveillance in the “gig economy”. Employee surveillance has become a perfect storm of convergence of established technologies, such as CCTV and email and Web interception, with more recent developments such as tracking via connected devices (cars, wearables, phones et al) and algorithmic profiling and prediction. We (a) propose a novel five-stage model of employee surveillance and then (b) present a fortuitous case study which demonstrates how technologies introduced into the workplace for beneficial reasons may morph via function creep into privacy invasive tools of surveillance. The recent academic (UCU) strike action in the UK threw up a highly combative environment where some universities are attempting to “strike break” by replacing, without new permission or consent, striking academics with recordings of their lectures made in previous years, usually for laudable motivations such as widening access and allowing students to revise. On examination, this practice of mandated lecture capture, unchallenged when used to help students but now under examination when its use is transformed, is often of dubious legality, both with reference to copyright and data protection, as well as overarching privacy rights and the relationship of trust and confidence between employee and employer. Furthermore, evidence is emerging that some universities are without publicity using lecture capture as a surveillance mechanism to grade or intimidate academics, or as a means to covertly replace them entirely. Serendipitously a recent ECtHR case, Antovic and Mirkovic v Montenegro (Application no. 70838/13) (28 November 2017) provides some ammunition with which to dispute these transformative and unsettling re-uses of recorded lectures. Finally, we consider the negative consequences of such non-permissioned re-use, which includes not just breach of trust to academics and depreciation of the employment relationship, but withdrawal from positive uses of surveillance techniques such as widening participation and enabling access.

Antovic was noted here.

Elder Abuse

The 2017 Australian Law Reform Commission report on elder abuse quoted Dr Wendy Bonython and myself. It is reassuring that insights and concerns articulated in that report are being rtecognised elsewhere, with this week's NSW Ombudsman's report on Abuse and neglect of vulnerable adults in NSW – the need for action commenting

In July 2016, the Ombudsman’s office commenced a standing inquiry under section 11(1)(e) of the Community Services (Complaints, Reviews and Monitoring) Act 1993 to examine and respond to allegations of abuse and neglect of adults with disability in community settings, such as the family home. 

We started the inquiry:

• in recognition of the seriousness of the increasing number of matters that were being reported to us that raised concerns about the safety and welfare of adults with disability in the community, and 

• in the absence of any other agency with the powers to investigate allegations that do not reach a criminal threshold or that otherwise require a coordinated interagency response. 

The standing inquiry 

Between August 2015 and October 2018, we received 358 contacts relating to the alleged abuse and neglect of adults with disability living in community settings. Most (206) of the matters involved reports of alleged abuse and neglect that required action as part of the standing inquiry. 

The 206 reports do not relate to the conduct of service providers – they are about the conduct of the person’s family and other informal supports, and members of the community. 

Source of reports 

We have an agreement with the National Disability Abuse and Neglect Hotline that it will refer matters to us that involve allegations of abuse and neglect of adults with disability in community settings in NSW. Of the 206 matters, 55 (27%) have been referred to us by the Hotline. The majority (143) of the other matters have been directly reported to us by external agencies or individuals. 

The primary source of reports (whether via the Hotline or directly to our office) has been nongovernment disability providers, who have accounted for almost half (91) of all reports. Other main reporters include family members (34), NSW government or funded agencies (24), and community members (20). 

The people involved 

Alleged victims 

Over half (110) of the matters reported to us in the standing inquiry have involved allegations of abuse or neglect of an adult with intellectual disability. More broadly, most reports have involved a person with some form of cognitive impairment. 

However, there has been a range of matters in which the person has not had a cognitive impairment – including 11 matters that involved a person with a solely physical disability. 

Subjects of allegation 

Most of the subjects of allegation have had a close and personal relationship with the adult with disability – with most of the alleged abuse and neglect committed by their family members or their partner/spouse. 

Over two-thirds (141) of the reports have been about the conduct of family members – mainly parents (99) and siblings (31). The adult with disability’s partner/spouse has been the subject of allegation in 17% of matters (35). A smaller number of reports have involved community members (10) and ex-support staff of the adult with disability (4). 

The reported allegations 

Most of the reports have involved more than one type of abuse and/or neglect – most commonly neglect (78) and physical abuse (77). Allegations of ill-treatment featured in 56 reports, and one-quarter of reports involved alleged financial abuse of the adult with disability (52). Over 10% of reports included allegations of sexual abuse (24). 

Our actions under the standing inquiry 

Our actions in response to the reports typically involve undertaking inquiries with agencies that are currently, or have recently been, involved with the alleged victim; checking available intelligence on relevant parties (including police and child protection databases); bringing agencies together to facilitate the exchange of relevant information, discuss the existing risks, and agree on necessary actions; and monitoring the implementation of the agreed actions. 

The standing inquiry has enabled our office to test, in a very practical sense, what needs to be done to provide an effective interagency response to these matters. Our handling of the 206 reports has highlighted that providing an effective interagency response can be relatively straightforward – provided that the agency taking the lead role has access to the right information, adequate powers, and the cooperation and support of key government and non-government stakeholders. 

However, the Ombudsman’s standing inquiry is a temporary measure, and will cease on 1 July 2019. In addition, there are critical gaps that are not addressed by the standing inquiry. In particular, we do not have the power to enter private residences to gain direct access to the alleged victim, and we are not competent or compellable to provide information to NCAT. The standing inquiry also does not encompass elder abuse. 

The need for an effective safeguarding approach for vulnerable adults 

In the context of the persuasive evidence provided by our standing inquiry, and the findings and recommendations from NSW and national inquiries into elder abuse, there is an urgent need for an effective, integrated framework and independent lead agency for responding to the abuse and neglect of all vulnerable adults in community settings in NSW. 

We strongly support the recommendations of the NSW Law Reform Commission from its review of the Guardianship Act 1987, relating to the establishment of an independent statutory position of a Public Advocate to (among other things) investigate – of its own motion or in response to a complaint – cases of potential abuse and neglect of people who need decisionmaking assistance, with powers to:

• apply for and execute a search warrant if needed 

• intervene in court or NCAT proceedings in certain cases 

• require people and organisations to provide documents, answer questions, and attend compulsory conferences 

• refer allegations to equivalent agencies in other jurisdictions 

• exchange information with relevant bodies 

• have read-only access to the police and child protection databases.

Our standing inquiry has highlighted some significant issues that should inform the development of a comprehensive safeguarding approach for vulnerable adults in NSW, and the work of the independent lead agency. In particular:

•  There is a need for concerted guidance, service improvement, and capacity development with providers, agencies and the community in relation to the abuse and neglect of vulnerable adults in community settings – to ensure that matters are reported, and appropriate action is taken. 

• There are significant opportunities to assist the work of police, through coordinating actions to assess and address the circumstances of the vulnerable adult, and providing a point of referral for police for guidance and support on specific matters. There is also a need to enhance police expertise in interviewing people with disability who have communication support needs and cognitive disability, to maximise their ability to give evidence and gain effective access to justice. 

• All efforts should be taken to maximise the involvement of the vulnerable adult in the response that is provided to the alleged abuse and neglect – including through the provision of appropriate decision-making supports. 

• There is a need for provisions for agencies that have responsibilities relating to the safety of vulnerable adults to be able to exchange information that promotes the safety of vulnerable adults – these agencies need to be able to share critical information with each other, and not have to rely on the Public Advocate to facilitate the exchange of information. 

What is needed 

From 1 July 2019, the NSW Ombudsman’s office will no longer carry out its standing inquiry into the abuse and neglect of adults with disability in the community. Without an alternative option in place, this gap will present unacceptable risks to an already vulnerable and marginalised cohort of our community. There is a need for swift action to establish a comprehensive adult safeguarding approach that will both fill the looming gap in relation to adults with disability, and address the longstanding gap in relation to vulnerable older persons. 

The recommendations of the NSW Law Reform Commission in relation to the establishment of an independent Public Advocate with investigative functions provide a timely and constructive way forward. However, there are a small number of supplementary steps that are required to provide an effective, integrated and person-centred approach to responding to the abuse and neglect of vulnerable adults in NSW – including information sharing provisions for relevant agencies, and enhanced options for decision-making assistance. 

More broadly, the NSW Ombudsman’s office would hope that this report acts as a trigger to the NSW Government to commit to a broad review, focused on establishing in NSW the strongest independent safeguarding and regulatory system in Australia for protecting vulnerable groups in our community.

The Ombudsman's recommendations are -

 It is recommended that the NSW Government should: 

1. Implement the recommendations of the NSW Law Reform Commission in relation to the establishment of an independent statutory body to investigate and take appropriate action in relation to the suspected abuse and neglect of vulnerable adults in NSW, as outlined in its report on the Review of the Guardianship Act 1987. 

2. As part of the establishment of the independent statutory body, and to support the development and implementation of an effective and integrated safeguarding approach for vulnerable adults in NSW:

a. Introduce legislative provisions to enable agencies that have responsibilities relating to the safety of vulnerable adults to be able to exchange information that promotes the safety of vulnerable adults. 

b. Ensure that there are enhanced options for vulnerable adults to gain appropriate decision-making assistance. The recommendations of the NSW Law Reform Commission in relation to supported decision-making should be considered as part of this response. 

3. Review the independent safeguarding and regulatory arrangements in NSW to identify opportunities to strengthen the system for protecting vulnerable groups in our community, with a view to considering the potential benefit of creating a single independent community services oversight body.

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.