CordBanking

'Peddling promise? An analysis of private umbilical cord blood banking company websites in Canada' by Alessandro R. Marcon, Blake Murdoch & Timothy Caulfield in (2021) Cell and Tissue Banking comments 

 Private umbilical cord blood banking is growing around the world. A family’s decision to bank cord blood publicly or privately can be influenced by numerous sources including healthcare practitioners, personal networks, the popular press, social media and marketing discourse from private entities. Issues have been raised concerning how private banks market their services, particularly with regards to the likelihood of use and for what purposes cord blood can be used. The objective of this study was to analyze the marketing on the seven company websites offering private cord blood storage in Canada. We performed a mix of content and general qualitative analysis on the seven websites. Our analysis shows substantial hype around cord blood uses, amplifying the promise of speculative uses and distorting the likelihood of use. Findings show that this promotional messaging often deploys communication strategies which draw on testimonials and emotionally-charged narratives. Questions should be asked about whether the promissory aspects of these websites constitute breaches of Canadian law or regulation. Careful monitoring of the private cord blood space is important for ensuring that the Canadian public is adequately and accurately informed of the services being offered.

The authors argue 

 Umbilical cord blood banking has grown significantly over the past two decades. The option was first made available in the 1990s following the discovery that cord blood is a rich source of stem cells (Kurtzberg 2017). These stem cells can now be used to treat blood and immune system disorders, and also in research on novel therapies not yet ready for clinical application (Allan 2020; W. T. Shearer et al. 2017). Unlike the United Kingdom, which has had an operational public banking program since 1996 (Haw 2016), and even though Quebec established a functioning provincial system in 2004, it was not until 2013 that Canada developed a national public banking program (Haw 2016; Héma-Québec 2012; NHS, access 2020). Private cord blood banks began offering storage in Canada as early as 1996 (Haw 2016) and have expanded significantly since. The current global market is projected to be worth $23 billion by 2025 (Global News Wire 2019). 

Public banking is overseen by government agencies, free of cost for the donor, and the collected materials are used to treat other patients or for research. Collecting as much cord blood as possible from a wide variety of ethnic groups is important to ensure opportunities for Canada’s ethnically diverse population. Private banking is for-profit, and stores cord blood for clients until retrieval is requested. Individuals generally pay an initial fee (approximately $1000 CAD), which covers registration and collection, followed by a yearly storage fee (approximately $125). There are currently seven private banking companies marketing in Canada (Parent’s Guide to Cord Blood 2020). Since both public and private institutions are interested in obtaining cord blood, Canadian parents are tasked with obtaining accurate, up-to-date information about whether and where to donate or store the cord blood following childbirth. 

Decisions to bank publicly or privately can be influenced by numerous sources including healthcare practitioners, personal networks, the popular press, social media and marketing discourse (Graham et al. 2016; Morgan et al. 2005; Peberdy et al. 2018; Soroka et al. 2013). Popular health websites such as www.babycenter.ca or www.webmd.com have pages dedicated to explaining the differences between public versus private banking (Private cord blood banking in Canada access 2020; Umbilical cord blood banking access 2020). Research has shown, however, the public’s awareness and knowledge of cord blood uses is lacking, and that information sources accessed by the public can be “varied, fragmented and inconsistent” (Peberdy et al. 2018). The differing and often opposing discourses produced by public and private institutions likely contribute to this confusion. 

Tensions exist in Canada between private and public cord blood banking. In Canada, as well as abroad, policy statements and government discourse recommend public banking over private, except in cases where a family might benefit from cord blood use based on an established prior condition like, for example, a sibling with leukemia, sickle cell disease, Hodgkin’s lymphoma or thalassemia (MyHealth Alberta access 2020; Health Link BC access 2020; Health Canada 2019; Shearer et al. 2017). These recommendations have been made because the potential for autologous (for donor) or allogeneic (for others) use offered by private banking is extremely low–a point confirmed by usage data (Shearer et al. 2017). Private banking is also costly and can elude regulatory oversight, in turn impacting overall blood quality (Shearer et al. 2017). In contrast, public banks provide public health benefits and regulatory oversight, which helps to ensure effectiveness while minimizing risk (Mohammed and EL Sayed 2015; MyHealth Alberta access 2020; HealthLink BC, access 2020; Health Canada 2019). Provincial and federal governments have also stressed how private banks commonly oversell the potential for cord blood use, especially with regards to more speculative therapies where evidence to support clinical application is lacking (Mohammed and EL Sayed 2015; MyHealth Alberta access 2020; HealthLink BC, access 2020; Health Canada 2019). 

Academic research investigating the public–private divide has described how public banks typically operate on a “regime of truth,” in contrast to private banks which typically operate on a “regime of promise” (Brown 2013; Martin et al. 2008). Here, private banks often apply the element of hope to their marketing discourse, upselling potential benefits, and thus playing into the “promissory” (Petersen and Krisjansen 2015) and “hyping” (T. Caulfield and Condit 2012; Master and Resnik 2013; Montague 2019) elements of the health sciences. Private banking has also been marketed as type of “biological insurance” for parents wanting to do whatever is possible for their children’s and family’s benefit (Brown 2013; Marcon et al. 2020; Martin et al. 2008; Weeks 2018). Indeed, a labeling shift has been observed with private banks now typically describing their services as “family banks” (Brown 2013; Martin et al. 2008; Weeks 2018). Further research documenting the procedures undertaken by women who stored blood privately in Canada found the process to be more complex and arduous than the women had expected (Haw 2016). Notably, a range of critical commentary also exists around public banking processes (Allan et al. 2016; Brown 2013; Isasi et al. 2013, 2018). In some contexts, critiques of drawing absolute distinctions between public and private banks have been raised, noting that similar marketing efforts are present in both (Beltrame 2020). 

The banking of cord blood will likely continue to increase both publicly and privately. Indeed, recent research on the portrayal of cord blood in the North American popular press has found that the topics of public and private banking feature significantly (Marcon et al. 2020). This research also shows that while private banking was more commonly portrayed as problematic than beneficial, strong and potentially persuasive narrative messaging around private banking benefits was also present, which might impact a family’s decision (Caulfield et al. 2019; Marcon et al. 2020). The public is increasingly going online to access health information (Shearer and Gottfried 2017), and because both the public’s knowledge and awareness of cord blood uses is lacking and because private cord blood banks typically oversell the potential for cord blood use, it is vital to observe and analyze the information influencing cord blood banking decisions. This includes analyzing the online marketing of the private cord blood banks as these companies’ practices may elude regulatory oversight, particularly with regards to misleading the public around the probability of usefulness and the practical benefits of private cord blood banking. Indeed, these companies require accreditation to operate in Canada, and it is their responsibility to adhere to government mandated truth-in-advertising standards (Murdoch et al. 2020). 

... The objective of this research was to analyze the marketing on the seven cord blood companies’ websites offering services in Canada. While research on the marketing of cord blood exists for other contexts or periods (i.e., Beltrame 2020; Brown 2013), there is no research for the current Canadian context. Given the concerns raised around private-banking marketing, we considered it valuable to analyze the manner in which the companies are marketing their services to the public. We sought to analyze specific characteristics and themes evident on the websites, and the degree to which websites promoted the growing future potential of stem cell use as a reason to store cord blood in a private bank.

Personhood

'The Personification of the Partnership' by Harwell Wells in (2021) 74 Vanderbilt Law Review asks 

What does it mean to say a business association is a legal person? The question has shadowed the law of business organizations for at least two centuries. When we say a business is a legal person we may be claiming that the law distinguishes its assets, liabilities, and obligations from those of its owners; or that it has a ‘real will’ and personality apart from its owners; or that it in some way can carry or assert rights generally ascribed to natural persons. This Article sheds new light on these old questions by looking at an oft-overlooked business form, the partnership, and at once-fierce debates over just what the partnership is. In the decades around the turn of the twentieth century scholars and practitioners hotly debated whether the partnership was an ‘aggregate’ or ‘entity’ and whether the law should treat it as a separate legal person, debates which culminated in the drafting of the Uniform Partnership Act (1914). Central to these debates was a now-forgotten facet of the legal personhood debates: the moral consequences of treating a business association as a distinct legal person.

'Flogging the Wrong: EU Corporate Fines Violate the Fundamental Rights of Shareholders' by Reuter Alexander in (2021) 12(4) Journal of European Competition Law & Practice 301–314 comments 

Herodotus reports that the fleet of Persian Great King Xerxes suffered from a severe storm when he crossed the Hellespont to invade Greece in 480 B.C. Thus, the Great King had the waves of the Hellespont punished by 300 strokes of the rod. Our smile about the Great King’s useless vengefulness leads, however, to the question as to who is sanctioned by fines imposed on legal entities, which, as such, are a mere pile of paper kept by the commercial register and as unsusceptible to punishment as the Hellespont’s waves. Is it appropriate to sanction the organisation (the company) as such, although it is always human individuals who violate the rules? If individuals are sanctioned by fines or other punishment, the sanction is based on the assumptions (i) that the sanction is justified by its purpose, that is, to act as a (specific or general) deterrent and (ii) that an individual is responsible for himself and must therefore accept the sanction as an evil that the community imposes on him for the law infringement (proportionality provided). In contrast, if a legal entity as such is sanctioned, then others are affected. In case of companies, these others primarily are the shareholders. However, neither of the described assumptions (i) and (ii) holds true about them. This raises doubts as to the legitimacy of corporate sanctions and, what is more, in respect of sanctions imposed by the European Commission, doubts in respect of their compatibility with the fundamental rights of the shareholders under EU law. These doubts are the subject of this article. 

The article submits that, in many instances, shareholders are unable to prevent the law infringements intended to be sanctioned by the fine, and that they are also unable to prevent recidivism. Hence, the article finds that corporate fines are not only manifestly unsuitable to reach their purpose. In addition, they do not ‘to strike the right balance’ within the meaning of the ECJ’s case law on restrictions of fundamental rights. Pointedly: If one takes the fundamental rights of shareholders seriously, the European Commission, when imposing corporate fines, is not only a revenant of Great King Xerxes in its sentiment that crime deserves punishment. It even goes further than the Great King in that it does not only flog waves, which feel no pain, but third parties, that is, the shareholders, without sufficient cause. 

It is true that in many decades of practice, the European Court of Justice (‘ECJ’) has never objected to corporate fines from that perspective. Yet, the analysis of these doubts is neither academic nor moot: The limits set by shareholders’ fundamental rights are a ‘fresh issue of law’, which has never been brought before, and dealt with by, the ECJ. It can, under the ECJ’s procedural rules, thus be raised at any time. This holds all the more so in view of the increased significance attached to EU fundamental rights and the mushrooming amounts of the fines, which the Commission has come to impose in the last decade. 

B. Concerns against corporate fines 

That sanctions on companies ‘do not have [a] deterrent effect, as they do not deal with individuals, but allow them to hide behind companies’, has already been argued earlier. In the same vein, corporate sanctions alone without a combination with sanctions against individuals were expected to become ‘subject to increasing criticism and diminishing legitimacy’. It was argued that while corporate fining is much easier and less costly for the authorities, cracking down on the companies is unlikely to deter directors from breaching the law. This article’s proposition is that the described concerns mutate in a legal objection if one takes the fundamental rights of the shareholders into due regard: Fundamental rights of shareholders cannot be restricted merely because their restriction is easier, less costly and/or benefits public budgets more, than law enforcement against the responsible individuals. 

C. Outline of the article 

As the highest EU fines are imposed under the EU competition rules, the article focuses on fines in this area. Chapter II sets forth the purpose of corporate fines under EU law. Chapter III describes the yardstick of shareholders’ fundamental rights against which corporate fines have to be measured. Chapter IV applies that yardstick to corporate fines and discusses whether or not they are proportional. Chapter V sets forth the practical consequences for the Commission’s practice, and Chapter VI contains the conclusion

Alexander concludes

While the Hellespont waves flogged by Great King Xerxes did not feel pain, the EU Commission’s corporate fines hit third parties, that is, the shareholders. Hence, corporate sanctions must be measured against their fundamental rights. This holds all the more true as the EU, in its desire for effective law enforcement, (i) does not only subject to corporate fines the acting legal entity, but its entire group, and (ii) measures fines on the basis of the turnover of the entire group, not only on that of the acting legal entity (see Chapter III C.1). In other words, to effectuate the prosecution of competition law infringements, the EU does not only ‘pierce’ the corporate veil, it removes it in its entirety. If EU law thus applies an economic approach in the interest of ‘effective’ prosecution and fining, nothing else can hold true about ‘effective’ protection of fundamental rights. Correspondingly, ‘effective’ protection of fundamental rights cannot stop at the corporate confinements of the legal entity either. From the perspective of the shareholders’ fundamental rights, corporate sanctions hit the wrong and do not bring about the targeted deterrence; as a result, they both are unsuitable (even ‘manifestly’ unsuitable) to reach their purpose and fail ‘to strike the right balance’. While the Great King’s power was absolute, the EU’s is not. Its corporate fine practice must be held to violate shareholders’ fundamental rights.

Data Breach

'The Data Breach Epidemic: A Modern Legal Analysis' by Laura A Hendee in (2021) 24(1) Journal of Technology Law and Policy comments 

This Note sheds light on the major legal issues surrounding the numerous data breaches that plague our modern technology-driven society. Current laws in the United States vary widely in how they handle the resolution of harm to unsuspecting victims of data breaches. The issue of Article III standing is commonly at the forefront of the conflict and discussion in this area, which has resulted in a substantial circuit split in the United States. The newly enacted California Consumer Privacy Act will likely have a major impact in this area of the law and will undoubtedly influence how consumers’ personal information is handled in the years to come.

'Beyond the Privacy Torts: Reinvigorating a Common Law Approach for Data Breaches' by Alicia Solow-Niederman in (2018) 127 Yale Law Journal Forum 614 comments 

Data breaches continue to roil the headlines, yet regulation and legislation are unlikely to provide a timely solution to protect consumers. Meanwhile, individuals are left, at best, in a state of data insecurity and, at worst, in a compromised economic situation. State common law provides a path forward. Rather than rely on statutory claims or the privacy torts to protect consumer data, this Essay suggests that courts should recognize how contemporary transactions implicate fiduciary-like relationships of trust. By designating what this Essay terms data confidants as a limited form of information fiduciary, courts can reinvigorate the tort of breach of confidence as a remedy for aggrieved consumers.

Pseudolegal

Black J In the matter of Commonwealth Bank of Australia [2021] NSWSC 401 deals with a pseudolegal claim, stating 

By Originating Process filed on 2 March 2021, the Commonwealth Bank of Australia (“CBA”) applies under ss 459G, 459H and 459J of the Corporations Act 2001 (Cth) to set aside a creditor’s statutory demand dated 4 February 2021 ("Demand") issued by the Defendant, Mr Ronald Gregory, to CBA. The basis on which that Demand is sought to be set aside is, in substance, that the debt claimed by Mr Gregory against CBA is genuinely disputed. 

The Demand refers to a debt in the amount of $418,000 and also claims interest and costs, and describes the debt as follows:

“Debt arising from outstanding invoice number RMG261020201429 for which First Notice dated the 26/10/2020, Second Notice dated 20/11/2020 and Third & Final Notice dated 11/12/2020 with invoices enclosed being delivered to the debtor company by Australia Post Domestic Letter with Tracking to which no replies from the debtor company were received. 

The invoice relates to debt by the debtor company as confirmed in an unrebutted affidavit dated 4/08/2020. 

A second unrebutted affidavit regarding commercial default for non payment by the debtor of invoice number RMG261020201429 by the debtor company is to the creditor.”

The verifying affidavit dated 4 February 2021 likely does not comply with the requirements for verification of a creditor’s statutory demand, so far as it contains a series of negative statements, commencing with the proposition that Mr Gregory has not been provided with any material evidence that he is not the creditor and continuing through several paragraphs of a similar character to conclude that: 

“I have not seen or been presented with any material evidence that there is genuine dispute about the existence or amount of the debt by the debtor company to the creditor and I believe sincerely that no such evidence exists. 

I have not seen or been presented with any material evidence that this statutory demand does not comply with the appropriate rules of the Corporation Act 2001 and I believe sincerely that no such evidence exists.” 

It is not necessary to express any final view as to the adequacy of that affidavit where CBA did not rely on any inadequacy in that affidavit as the basis for its application to set aside the Demand. 

CBA’s evidence 

CBA reads, first, the affidavit of Mr Hanrahan dated 2 March 2021. Mr Hanrahan is employed by CBA in its Financial Assistance Solutions and Collections Team and gives evidence that he has access to CBA's books and records in respect of the proceedings, and refers to service of the Demand on CBA's registered office. He notes that Mr Gregory has held Visa credit card facilities with CBA since 2006 and refers to correspondence with Mr Gregory which appears to have given rise to discontent on Mr Gregory's part, and to a complaint made by Mr Gregory to the Australian Financial Complaints Authority which it appears was dismissed. 

Mr Hanrahan, in turn, refers to a number of documents on which Mr Gregory has relied, in correspondence with CBA and in these proceedings, and I mark some of the documents which have since been provided to the Court as MFI1 in these proceedings. Mr Gregory did not appear and none of his affidavits have been read and none of those documents tendered in the proceedings, except so far as CBA had led evidence of them to identify the claims he has made. Mr Hanrahan seeks to identify Mr Gregory's underlying claim, which appears to arise from an invoice issued by him to CBA, which in terms relates to a fine purportedly imposed by Mr Gregory on CBA in respect of an alleged trespass on an agreement between Mr Gregory and CBA. Mr Hynes, who appears for CBA, perhaps somewhat uncharitably but likely correctly, refers to the basis of Mr Gregory's claim in that respect as incomprehensible, so far as Mr Gregory seeks himself to impose a fine for the suggested breach, and so far as the concept of a trespass upon an agreement is one which would not ordinarily be known to Australian law. 

By a further affidavit dated 9 March 2021, Mr Holland, a process server, refers to service of the proceedings which seek to set aside the Demand upon Mr Gregory. The Originating Process was served under cover of a notice under the Service and Execution of Process Act 1992 (Cth) (“SEPA”), so far as the proceedings were brought in the Supreme Court of New South Wales and served upon Mr Gregory in the State of Victoria. I will refer to an issue arising in respect of an aspect of that notice below. 

By a further affidavit dated 10 March 2021, Mr Lewin, a solicitor acting for CBA, referred to service of further documents upon Mr Gregory by post. By a second affidavit of Mr Lewin also dated 10 March 2021, he led evidence of a company search of CBA, a matter required by the Corporations Rules in respect of an application of this character. By a third affidavit dated 18 March 2021, Mr Lewin led evidence of further correspondence with Mr Gregory. 

By an affidavit dated 22 March 2021, Mr Holland gave evidence of service of further documents upon Mr Gregory. By his affidavit dated 22 March 2021, Mr Lewin referred to sending an email to Mr Gregory, including further evidence in the proceedings and the Plaintiff's outline of submissions, identifying the orders it sought. By a further affidavit of Mr Lewin dated 25 March 2021, he updated the position in respect of correspondence with Mr Gregory and a further affidavit dated 6 April 2021 indicated that Mr Gregory had been advised of the adjournment of CBA's application to today, to allow him to consider supplementary submissions which had been made by CBA in respect of the issue arising under SEPA. 

Mr Gregory’s position 

Mr Gregory has not appeared at any stage in the proceedings, whether by filing a notice of appearance, or attending any of the hearings conducted by telephone. However, there is no doubt that Mr Gregory is aware of the proceedings, and he has actively participated in them by correspondence to the Court and the filing of affidavit evidence, which I have marked, as I noted above, "MFI1". The form of Mr Gregory’s correspondence and evidence has many of the features which were described in the judgment of the Court of Queen’s Bench of Alberta in Meads v Meads 2012 ABQB 571 as “Organized Pseudolegal Commercial Argument”, which I noted in Sheridan v Colin Biggers & Paisley [2019] NSWSC 528 at [10] and to which the Court of Appeal referred in Wichman v Pepper Finance Corp Ltd [2019] NSWCA 195. 

The documents filed by Mr Gregory, but not read or tendered by him because he has not appeared, include a document dated 4 March 2021 titled "Notice to Principal is Notice to Agent" addressed to the Registrar of the Court, and demanding a copy of any lawful contract made between Mr Gregory and the Court with his informed consent on which the Court relies. Mr Gregory then claims that, if the Court does not provide him with such a contract within seven days, it will be taken to have assented that no contract exists with him. It appears to be self-evident that no contract exists between Mr Gregory and the Supreme Court of New South Wales. However, the Court's jurisdiction is not contractual in nature. In particular, the Commonwealth and the State of New South Wales have conferred jurisdiction under the Corporations Act 2001 on the Court, including jurisdiction to set aside a creditor’s statutory demand, and that jurisdiction does not require Mr Gregory's agreement for its exercise. 

By an affidavit, Mr Gregory addresses various matters including that he is "a living spirit within a sentient breathing man"; that he has not been presented with facts or material evidence of various matters, and that he does not have a contract or consent to any contract with any person or persons without his fullest informed consent. That affidavit concludes with the striking affirmation that it is "As Good as Avaal", a proposition that is not commonly seen in affidavits in the Courts of New South Wales, but appears to be known to United States law in respect of guarantees. 

By “Notice of non-consent” dated 24 March 2021, Mr Gregory draws to the Court's attention that he has no contract with the Court, a matter to which I have referred above. By a second affidavit, of substantial length, Mr Gregory addresses matters raised by the affidavits on which CBA relies. By a letter dated 25 March 2021 addressed to the Registrar he addresses further aspects of the affidavits on which CBA relies. By an email dated 29 March 2021, he succinctly advised my Associate, so far as he had been informed of a hearing of the proceedings on 26 March 2021, that he did "not consent". Three further affidavits address issues including those raised by the Plaintiff's supplementary outline of submissions and, by an affidavit which appears to be directed to the attention of CBA’s solicitors, Mr Gregory seeks to highlight a suggested fraud, presumably in respect of these proceedings, and by a further affidavit, directed to the attention of the Chief Justice of New South Wales, the Chief Judge of the Equity Division and the Registrar of the Supreme Court, he addresses the same matter. 

I draw attention to these documents, not because they are in evidence or because Mr Gregory made any attempt to read the affidavit evidence, or to tender them, but because they demonstrate that Mr Gregory is squarely on notice of the proceedings and has had an opportunity to be heard in them.

Surveillance

The Commonwealth Ombudsman's report Australian Federal Police’s (AFP) use and administration of telecommunications data powers 2010 to 2020 

 is the outcome of my Office’s own motion investigation into the Australian Federal Police’s (AFP) use and administration of telecommunications data powers under Chapter 4 of the Telecommunications (Interception and Access) Act 1979 (the TIA Act). In particular, our investigation focussed on access to and use of one type of telecommunications data—location-based services (LBS), colloquially known as ‘pings’. 

My Office provides independent assurance that telecommunications data, including LBS, is only used in the circumstances permitted by the legislation and that agencies using these powers can demonstrate their compliance. We do this by inspecting a sample of records and reporting what we find each year. Our ability to provide this assurance is dependent on agencies providing full and accurate records of their use of the powers. As such, when the AFP identified records that showed ACT Policing (the AFP’s community policing arm) had accessed LBS and that those records had not previously been provided to my Office, I decided it was appropriate for my Office to conduct its own investigation. 

There were several important factors that informed my decision to commence an investigation, including:

• the covert and intrusive nature of this power 

• the duration and potential scale of non-compliance with the TIA Act as a result of ACT Policing accessing telecommunications data outside the AFP’s approved process 

• the omission of the affected records from our Office’s regular compliance inspections 

• previous recommendations our Office has made to the AFP about non-compliance with the TIA Act. 

The AFP identified records dating back to 2007 which showed ACT Policing accessed LBS outside the AFP’s approved process. This meant two things:

• the access was not reported to the Minister for Home Affairs and the records were not provided to my Office, to be considered for inspection. 
• • the risk of non-compliance with legislative requirements under the TIA Act was higher as the access occurred outside established processes approved by the AFP. 

My Office’s inspections of the AFP’s access to telecommunications data from 2015–16 occurred without full or accurate records to inform our assessment 

After identifying the records, the AFP did the right thing—they disclosed the issue to our Office and after discussion, commissioned PwC Australia (PwC) to conduct an internal audit of the affected records. 

My Office’s investigation focused on the scope and extent of any non-compliance, noting the potentially serious consequences, and the causes of any non-compliance, including culture, practices and procedures that contributed. 

This report makes findings based upon the following themes:

• We identified that many of the authorisations made by ACT Policing for access to telecommunications data between 13 October 2015 and 2019 were not properly authorised. Of the 1,713 individual accesses to LBS by ACT Policing for that period, we were only able to provide assurance that nine were fully compliant with the TIA Act. 

• Many LBS could have been accessed unlawfully which has a number of potential consequences. Firstly, if access was unlawful and the information relied on in prosecutions, there may be consequences for people convicted of an offence. While initial advice provided by the AFP to my Office was that the LBS obtained by ACT Policing was only used to locate someone to arrest them, we were unable to rule out the possibility that unlawfully obtained evidence, the LBS, may have been used for prosecutorial purposes. Secondly, the privacy of individuals may have been breached. 

• We could not be satisfied that the scope of the breaches has been fully identified by the AFP nor the potential consequences and consider it is possible breaches have occurred in parts of the AFP other than ACT Policing. 

• The AFP and ACT Policing missed a number of opportunities to identify and address that ACT Policing was accessing LBS outside the AFP’s approved process earlier. 

• The internal procedures at ACT Policing and a cavalier approach to exercising the powers resulted in a culture that did not promote compliance with the TIA Act. This contributed to the non-compliance identified in this report. 

In response to PwC’s report, the AFP made several changes to the way in which staff access prospective telecommunications data in an effort to improve compliance with the TIA Act. These have been useful first steps towards the AFP achieving future compliance. However, I consider the AFP needs to do more to confirm the extent of non-compliance with the legislation for this type of telecommunications data and remediate any consequences of non-compliance with the TIA Act identified in this report. 

This report includes eight recommendations to assist the AFP in addressing these issues and implementing processes to prevent recurrence of similar issues.

Pseudostates

'Micronations: A lacuna in the law' by Harry Hobbs and George Williams in (2021) International Journal of Constitutional Law comments 

Around 100 active micronations exist across the globe. Led by committed and eccentric individuals, these aspirant or wannabe states assert their claims to sovereignty in myriad ways. In dressing in the language of statehood, they challenge understandings of, and approaches to, international legal personality. In this article we provide the first legal survey of micronations. We develop a conceptual framework to understand what it means to be a micronation, explore their various forms, and analyze key public law issues. Our survey reveals that, although public law has not engaged with this phenomenon, states respond to the assertion of sovereignty by micronations in both benign and violent ways.

The authors argue 

On December 2, 1977, Prince Leonard Casley of the Hutt River Province cabled a telegram to the Governor-General of Australia, declaring war. With a permanent population of fewer than twenty residents, no standing army, and the Province’s 75 km2 territory entirely enclosed by the state of Western Australia, Prince Leonard was unprepared for war. Two days later, on December 4, 1977, he cabled a second telegram announcing the cessation of hostilities. The Australian government responded to neither correspondence, but Prince Leonard nonetheless claimed victory. According to his reading of the Geneva Conventions of 1949, a state should show full respect to a nation undefeated in war. As the Hutt River Province was undefeated, Australia must recognize its sovereignty. 

Australia never recognized the sovereignty of what subsequently renamed itself the Principality of Hutt River, but Prince Leonard is not the only person who has claimed to secede and create his or her own state. Although a new state is, of course, the goal of secessionist movements across the globe, including in South Sudan, Kosovo, Scotland, Catalonia, Quebec, and elsewhere, Prince Leonard’s Principality differs from these efforts. Built around a committed and eccentric individual, possessing only a very small resident population and unrecognized by sovereign states, the Principality was an “aspirant” or “wannabe” state. More commonly, it was known as a micronation. 

In contrast to true secessionist movements, micronations are generally considered trivial and are often ignored by the state. This may be because a micronation poses no security threat to the state and lacks a foundation in domestic and international law for its claim to independence. They are also not recognized in domestic or international forums as nations. Despite this, micronations dress themselves in the language of statehood and perform acts of sovereignty. In doing so, they critique and challenge understandings of and approaches to international legal personality. 

Micronations are an oddity that sits outside conventional understandings of the law. Perhaps for this reason, no significant legal study of micronations exists. In this article, we rectify this by providing the first legal survey of micronations. We define what it means to be a micronation, explore their various forms, and analyze key public law issues relating to their establishment and existence. This provides a rich body of material from which to assess and understand these unique attempts to assert statehood. 

Micronations are diverse in form and function. In Section 2 we develop a conceptual framework for micronations to better understand and interrogate their common features and considerable diversity. We do so by first establishing a definition of what it means to be a micronation, and then situating that definition within understandings of statehood. This enables us to define and better understand micronations before exploring whether and how traditional frameworks of international legal personality relate to or comprehend this phenomenon. 

In Section 3 we explore that diversity in more detail. Drawing on our conceptual framework we survey a wide cross-section of micronations, focusing on the varied motivations for their creation. Owing to the general paucity of scholarly engagement, in many cases we rely on statements from founders and individuals connected to particular micronations. Such stories are part of a micronation’s self-created history and narrative, and are therefore valuable in understanding the reasons why a person chooses to found their own country. Our survey reveals that individuals and small groups from all over the globe purport to secede and establish their own countries for a wide variety of reasons. 

Documenting the sheer prevalence of micronations is valuable in itself. However, uncovering the multiplicity of motivations that underlie the reasons for their formation illuminates our understanding of the legal disputes they provoke. In Section 4 we discuss several key public law issues that pertain to micronations. We examine how micronations seek to assert their sovereignty and independence, as well as how recognized nations respond to such claims. As we note, while state responses range from the benign to the violent, all responses share a commitment to the full enforcement of their laws. ... 

Micronations have escaped sustained attention in the legal literature. There is no legal account that identifies and comprehensively outlines the common features and outer bounds of this phenomenon. In fact, very few non-legal efforts that offer an explanatory account of micronationalism exist. In this section, we examine three non-legal attempts to develop a typology aimed at understanding and explaining micronationalism. In doing so, we explore classificatory accounts that identify commonalities and distinctions among and between micronations with the goal of discerning a legal definition to guide our discussion throughout this article. 

Before commencing, it is important to note that all accounts agree that micronations are distinct from recognized states. While no unambiguously “accepted and satisfactory legal definition of statehood” exists, the Montevideo Convention definition is most commonly adopted. Under the Convention, an entity must meet certain conditions relating to territory, population, government, and a capacity for external relations, in order to be characterized as a state. Recognition by other states is not one of those conditions. Whether and how these conditions relate to micronations is explored in more detail in the following section. 

One of the few approaches to understanding micronations is provided by a geographer. Dallen Timothy offers a broad account that delineates between four distinct models, only two of which are properly characterized as micronations. At one end of Timothy’s spectrum sit internationally recognized, sovereign, non-state entities. These entities do not unequivocally meet the declarative criteria for statehood expressed in the Montevideo Convention, but are nonetheless formally recognized (by at least one other state) as de jure sovereign entities. For this reason, they are not strictly micronations but, usually, states with no control over physical territory. This category includes the Baltic states of Estonia, Latvia, and Lithuania during the Soviet annexation, as well as the Sovereign Military Order of Malta. Founded in 1048, the Order of Malta no longer exercises jurisdiction over any territory and is not strictly a state, but nonetheless retains a “certain international personality.” While the Order once ruled (at different times) Cyprus, Rhodes, and Malta, its physical territory is now limited to two buildings in Rome. Nonetheless, it maintains diplomatic relations with 107 states, has UN permanent observer status, and issues its own passports, stamps, and coins. 

Timothy identifies his second model of non-nations as “semi-legitimate places.” These entities have some historical foundation for claims of independence but, unlike the former category, have not been formally accepted or recognized by the international community. He suggests that the Principality of Seborga, situated in the hills of Liguria, Italy, falls within this category. As we discuss in more detail below, however, the Principality lacks any reasonable legal foundation for independence. A more obvious candidate is the Republic of Somaliland, a semi-autonomous region of Somalia that declared its independence in 1991, claiming to be the successor of the State of Somaliland. The State of Somaliland was the name assumed by the former British protectorate upon independence from the United Kingdom on June 26, 1960. It lasted only five days, joining with the Italian-administered Trust Territory of Somaliland to form the Federal Republic of Somalia on July 1, 1960. Despite arguably meeting international law conditions for statehood, the Republic of Somaliland is not recognized by any other state. Nonetheless, because its claim has some basis in law it is not a micronation. 

The last two models are more traditionally understood as micronations. In the third, Timothy identifies places with little or no claim to historical legitimacy, but which have nonetheless “earnestly attempted to lay claim to national independence.” This archetype includes the most prominent micronations, like the Principality of Hutt River in Western Australia, and the Principality of Sealand off the United Kingdom’s Suffolk coast, as well as lesser-known wannabe states like Liberland on the Danube River. We place the Principality of Seborga within this category.  

Timothy’s fourth example largely eschews control of significant physical territory. Increasingly prevalent, these are “countries” that assert independence “but are in fact little more than social clubs.” While they engage in performative acts of sovereignty, this is conducted primarily for amusement or to seek attention rather than to actively challenge state sovereignty. Typically, the jurisdiction claimed extends to the real property owned by its founder, whether that is an apartment in London, a flat in Sydney, or a house in Nevada. 

Timothy’s typology usefully articulates major distinctions among micronations, as well as between micronations and other “non-nations.” However, it does not clarify all variances between such entities. Finnish artists Tellervo Kalleinen and Oliver Kochta-Kalleinen offer a more pronounced classification, distinguishing between three models: microstates, model-states, and new country projects. According to Kalleinen and Kochta-Kalleinen, microstates are very small countries whose territory is typically less than 20,000 km2. Although they generally meet common international legal definitions of statehood, their sovereignty may or may not be recognized. For instance, while the Vatican City, Monaco, and San Marino are all recognized as sovereign states, the Principalities of Hutt River and of Seborga were and are not. 

Model-states differ fundamentally from microstates. While microstates exercise (or purport to exercise) sovereignty over a small territorial expanse, model-states do not seek to establish legitimacy on the basis of territorial claims. Rather, they are “experiments in forming a state with all of its political institutions” and symbols. Like “real” countries, model-states perform acts of sovereignty; they write constitutions, compose national anthems, design flags, issue stamps and currency, and conduct diplomatic relations with each other (and seek recognition from recognized nations). As the founder of the Principality of Nova Arcardia, Steven Scharff, has explained, model-states are a “diplomatic version of a model railroad.” 

New country projects are similar to model-states in that they also engage in performative acts of sovereignty. However, while model-states generally do not lay claim to substantial physical territory, new country projects involve attempts to actually establish a viable state by “acquiring or creating territory which does not belong to any existing state.” This can involve sea-steading initiatives in which floating structures are “arranged into atolls and archipelagos,” allowing individuals to settle on the high seas outside national jurisdiction, like the Republic of Minerva, and the Floating Island Project’s South Pacific city. It can also include emerging efforts to develop permanent habitation on satellites like the Space Kingdom of Asgardia. Many new country projects have been influenced by libertarian philosophies, and their founders have sought to develop and operate economic schemes prohibited in their homelands. More recent initiatives, like Waveland and Asgardia, may also be inspired by cosmopolitan ideals of an integrated global pan-humanity. Nonetheless, even in these cases, new country projects can carry colonial overlays and resonances. In 2014, for instance, a United States man planted a flag in the Bir Tawil desert, asserting authority over 2060 km2 of land claimed by neither Sudan nor Egypt in order to establish a kingdom and fulfill a promise to his daughter to make her a princess. 

The typologies by Timothy, and Kalleinen and Kochta-Kalleinen, are helpful in identifying distinctions between different forms of micronations. However, they also make clear that there are “incredible differences” and “no clear sense of unity” among this diverse practice. Acknowledging this, sociologist Judy Lattas adopts a simpler definition. Lattas defines micronations as “tiny countries declared by ordinary people in an act that repeats the establishment of sovereign nations, at least in some of its protocols.” Lattas’s approach is valuable as it more clearly identifies what makes micronations distinct from similar entities. Nonetheless, it still fails to capture what we understand by micronations within the context of our legal analysis. After all, some micronations are established by prominent political actors rather than ordinary people. Other micronations might have only a very small resident population but may claim authority over large areas of land, or even outer space. Furthermore, spurred by the growth of the internet, some micronations claim hundreds of thousands of citizens, significantly more than many recognized states. 

This demonstrates the need to adopt a different definition. We define micronations as self-declared nations that perform and mimic acts of sovereignty, and adopt many of the protocols of nations, but lack a foundation in domestic and international law for their existence and are not recognized as nations in domestic or international forums. Our definition simply and accurately encompasses the diversity of micronations; it includes libertarian sea-steading efforts, experimental states formed within college dorm rooms or conceptual art projects, as well as states established to publicize political agendas. It also excludes similar but distinct phenomena, such as secessionist movements, Indigenous nations, microstates, and intentional communities. 

In contrast to micronations, secessionist movements and Indigenous nations enjoy some historical foundation for their assertions of independence, whether or not that claim has been formally recognized by domestic law or the international community. Indigenous nations, for example, are distinct political communities composed of individuals united by identity that have a long history of operating as a distinct society, with a unique economic, religious, and spiritual relationship to their land. Even where the state does not recognize this claim, their legitimacy is based on this status. By contrast, perhaps reflecting the relative moral and political strength of their respective claims and legal foundations, micronations tend to be ephemeral. One of the oldest continuing micronations, the Kingdom of Elleore, was established on the Danish island of Elleore in 1944. Designed to parody the royal traditions and government structure of Denmark, the Kingdom is now only occupied for a week-long celebration each year. 

Our definition also excludes microstates and intentional communities. Like many micronations, microstates have a very small population and control a very small geographic area. However, as “modern protected states,” microstates are internationally recognized sovereign political entities; a status that distinguishes them from micronations. Intentional communities, or communes, are communities of people that live together in common and assert authority to manage their internal affairs autonomously of the state. Such communities can be spiritual, like the Mennonites, or secular, like Twin Oaks Community eco-village, in the United States. In this sense, they are similar to micronations. Importantly, however, intentional communities do not use the language of statehood, instead seeking to operate within the state, albeit on a distinct basis.

Rivers, Agency, Sentience

'Rivers as living beings: rights in law, but no rights to water?' by Erin O’Donnell in (2021) Griffith Law Review comments 

Since 2017, some of the most beloved and iconic rivers in the world have been recognised in law as legal persons and/or living entities, with a range of legal rights and protections. These profound legal changes can transform the relationship between people and rivers, and are the result of ongoing leadership from Indigenous peoples and environmental advocates. This paper uses a comparative analysis of the legal and/or living personhood of rivers and lakes in Aotearoa New Zealand, India, Bangladesh, Colombia to identify the legal status of specific rivers, and highlight the disturbing trend of recognising rivers as legal persons and/or living entities whilst also denying rivers the right to flow. Rather than empowering rivers in law to resist existential threats, the new legal status of rivers may thus make it even more difficult to manage rivers to prevent their degradation and loss. This paper highlights an ‘extinction problem’ for rivers that environmental law has exacerbated, by recognising new non-human living beings whilst simultaneously denying them some of the specific legal rights they need to remain in existence. The paper also shows how a pluralist analysis of the status of rivers can help to identify some potential ways to address this problem.

O'Donnell argues 

Rivers and wetlands are some of the most threatened ecosystems on the planet. Since 2017, some of the most beloved and iconic rivers and lakes in the world have been recognised in law as legal persons and/or living entities, with a range of legal rights and protections. These profound legal changes allow the law to ‘see’ complex systems as legal subjects, and may enable us to harness the power of environmental law to prevent their future extinction. But does the recognition of rivers in law as legal persons or living beings actually help to save them? 

The recognition of complex, landscape scale systems as legal and/or living beings represents one of the biggest structural changes in environmental law in decades. UN Special Rapporteur on human rights and the environment, David Boyd, described legal rights of nature as a ‘legal revolution’ that could help to level the playing field between humans and nature. More profoundly, the recognition of rivers legal and/or living beings is also often grounded in Indigenous peoples’ cosmologies and laws, which can lead to more pluralist environmental laws as well as the opportunity to transform the relationship between people and rivers in colonial settler states. However, the new legal frameworks which give rivers rights also tend to deny the new river beings the right to control their own lifeblood: the water which flows between their banks. 

Water extraction for drinking, irrigation, mining, and energy generation is a key driver of poor river health, but the new governance arrangements for the living rivers have all left the existing rights to use water from the river in place. Even worse, recognition of rivers as legal persons can entrench an adversarial narrative, in which our willingness to protect rivers is eroded, and replaced by a zero-sum, transactional relationship in which there are clear winners and losers. Rather than empowering rivers in law to resist their own existential threats, these new legal arrangements may ultimately make it even more difficult to prevent the degradation and loss of rivers. 

In this paper, I begin by examining the multitude of ways in which rivers are recognised as legal rights holders or living entities in law. These differences establish the legal rights and powers of the rivers, as well as the foundation for the next phase of the human relationship with rivers. The UN Secretary General noted in 2019 that the emerging ‘Earth-centred paradigm [of environmental law] guided by the oldest jurisprudential traditions of humankind is inherently pluralistic’, and when examining the question of rivers as living beings and legal persons, a pluralist perspective is essential to overcome the shortcomings of Western legal theories of personhood, which still struggle to recognise that natural entities can be legal persons. More profoundly, the recognition of rivers, lakes, mountains, animals, and all of nature as legal subjects is often the result of Western legal frameworks adopting and translating concepts from the laws of Indigenous peoples. However, without deep, respectful engagement, such translations can also involve a re-interpretation (or appropriation) of Indigenous laws that may obscure or undermine the rights of Indigenous peoples. 

Secondly, I consider the specific legal and living personhood of rivers based on comparative analysis between leading international examples of riverine personhood (in Aotearoa New Zealand, India, Bangladesh, and Colombia) and two Australian examples that depend on living entity status rather than legal rights. These rivers have been defined in law in multiple ways, but one consistent trend across all the examples of ‘living rivers’ is that their legal rights do not explicitly include rights to water. 

I then consider the question of how extinction can apply to rivers, and how the recent construction of rivers as living beings could exacerbate extinction risks. In doing so, I apply a pluralist understanding of environmental protection, reflecting the laws of both Indigenous peoples and settler colonial states. As stated by Poelina et al, recognition of rivers as living beings with a right to life ‘is grounded in ancient First Law (Traditional Law, Customary Law, or Aboriginal Law) which promotes the holistic natural laws for managing the balance of life.’ Based on the evidence from the rivers, I argue that ‘extinction’ can and does apply to rivers, and that the construction of rivers as legal and/or living beings can increase this risk in key ways. 

Lastly, I explore potential ways to address the extinction problem that environmental law has exacerbated by recognising rivers as legal and/or living beings, whilst simultaneously denying them the specific legal rights they need. This discussion further demonstrates the power of a pluralist approach to environmental law, and help to frame a future legal and policy agenda riverine protection.

'Ghost twitter in Indigenous Australia: Sentience, agency, and ontological difference' by Francesca Merlan in (2020) 10(1) HAU: Journal of Ethnographic Theory comments 

By distinguishing between attributions of sentience and agency we begin to take crucial analytical steps to consider ontological and cosmological differences between groups. Scholars in New Animist and Actor-Network Theory camps sometimes expound broadly generalized notions of agency, thus overlooking the ways in which characterizations of different kinds of beings—and the implications of these characterizations—may apply to aspects of environment and change historically. In Australia there has been debate about the “sentience” of the country as understood by Indigenous Australians. In a broader Australian public culture, there has come about in the last four decades or so an “etherealized” apprehension of Indigenous relations to landscape, which has privileged attention to certain kinds of cosmogenic being (that is, “Dreamings” as world founding agencies). Considering Australian Aboriginal practices and descriptions of spirit, human, other-than-human figures, and sacralized countryside, I take the view that there is incommensurability between Indigenous and non-Indigenous experiences of environment as sentient. Drawing on both my field experience with Indigenous people in North Australia and the broader Australianist ethnographic record, I discuss the many other kinds of being that populate and animate the countryside, showing a wide range of beings and forces. Three themes of continental distribution stand out: continuities between life and death; human-animal ambiguity; and communicative connectivities among life-forms. All these were elaborated in a way of life integral with its surroundings. The article considers change over time to such understandings, reduction in the range of life-forms, and what this may involve.