02 December 2016

Theory

'Intersectionality as buzzword: A sociology of science perspective on what makes a feminist theory successful' by Kathy Davis in (2008)9(1) Feminist Theory 67–85 comments
Since its inception, the concept of ‘intersectionality’ – the interaction of multiple identities and experiences of exclusion and subordination – has been heralded as one of the most important contributions to feminist scholarship. Despite its popularity, there has been considerable confusion concerning what the concept actually means and how it can or should be applied in feminist inquiry. In this article, I look at the phenomenon of intersectionality’s spectacular success within contemporary feminist scholarship, as well as the uncertainties and confusion which it has generated. Drawing upon insights from the sociology of science, I shall show how and why intersectionality could become a feminist success story. I shall argue that, paradoxically, it is precisely the concept’s alleged weaknesses – its ambiguity and open-endedness – that were the secrets to its success and, more generally, make it a good feminist theory. 
Davis argues
The occasion for this article was a two-day seminar on the subject of ‘intersectionality’ that I recently gave during a visiting stint at a university in Germany. To my surprise, the seminar, which was originally intended for a small group of women’s studies students, drew interest from Ph.D. candidates and colleagues from cities throughout the region, all prepared to sacrifice their weekend and put aside their language difficulties (the seminar was in English) in order to participate. While this interest in my course was obviously gratifying, it was also puzzling. Why the sudden concern with ‘intersectionality’, I wondered? My curiosity increased as I discovered that most of the participants were not at all sure what the concept meant, let alone how it should or could be used in their own fields of inquiry. At the same time, however, they were all convinced that intersectionality was absolutely essential to feminist theory and they had no intention of ‘missing the boat’.
In this article, I explore the secret of intersectionality’s remarkablesuccess in contemporary feminist scholarship, given the confusion which the concept evokes among those who would most like to use it in their own research. ‘Intersectionality’ refers to the interaction between gender, race, and other categories of difference in individual lives, social practices, institutional arrangements, and cultural ideologies and the outcomes of these interactions in terms of power. Originally coined by Kimberlé Crenshaw (1989), intersectionality was intended to address the fact that the experiences and struggles of women of colour fell between the cracks of both feminist and anti-racist discourse. Crenshaw argued that theorists need to take both gender and race on board and show how they interact to shape the multiple dimensions of Black women’s experiences. Intersectionality has since been heralded as the ‘most important contribution that women’s studies has made so far’ (McCall, 2005: 1771).
Feminist scholars from different disciplines (philosophy, social sciences, humanities, economy and law), theoretical perspectives (phenomenology, structuralist sociology, psychoanalysis, and deconstructionism) and political persuasions (feminism, anti-racism, multiculturalism, queer studies, disability studies) all seem to be convinced that intersectionality is exactly what is needed. It has generated heated theoretical debates throughout the US and Europe, becoming a standard topic in undergraduate courses, graduate seminars and conferences in the field of women’s studies. Special issues of feminist journals and anthologies are currently appearing, devoted to exploring the theoretical complexities of intersectionality.
Today, it is unimaginable that a women’s studies programme would only focus on gender. Textbooks and anthologies in the field cannot afford to neglect difference and diversity among women (although opinions differ about the best way to approach the issues). It is bon ton for women’s studies professors to ask their undergraduate and graduate students to reconsider the topics of their research in the light of multiple differences. Learning the ropes of feminist scholarship means attending to multiple identities and experiences of subordination. Feminist journals are likely to reject articles that have not given sufficient attention to ‘race’, class, and heteronormativity, along with gender. At this particular juncture in gender studies, any scholar who neglects difference runs the risk of having her work viewed as theoretically misguided, politically irrelevant, or simply fantastical.
Ironically, however, while most feminist scholars today would agree that intersectionality is essential to feminist theory, judging by the discussions which have emerged around the concept, scholars seem to share the same confusion that the participants of my seminar exhibited. Some suggest that intersectionality is a theory, others regard it as a concept or heuristic device, and still others see it as a reading strategy for doing feminist analysis. Controversies have emerged about whether intersectionality should be conceptualized as a crossroad (Crenshaw, 1991), as ‘axes’ of difference (Yuval-Davis, 2006) or as a dynamic process (Staunæs, 2003). It is not at all clear whether intersectionality should be limited to understanding individual experiences, to theorizing identity, or whether it should be taken as a property of social structures and cultural discourses. This raises the question how a theory which is so vague could come to be regarded by so many as the cutting edge of contemporary feminist theory. And does it need – as some have argued – a more coherent conceptual framework and methodology in order for it to live up to its potential and to grasp the complex realities it was initially intended to address (McCall, 2005)?
In this article, I look at the phenomenon of intersectionality’s spectacular success as well as the uncertainties which it generates. I shall not be providing suggestions about how to clarify the ambiguities surrounding the concept, nor how to alleviate uncertainties about how it should be used. Quite the contrary, I shall be arguing that, paradoxically, precisely the vagueness and open-endedness of ‘intersectionality’ may be the very secret to its success. To this end, I draw upon insights from the sociology of science. This branch of sociology is concerned with processes of scientific activity, the relationship between theories and their audience, and, more generally, how a specific theory or theoretical perspective can persuade an (academic) audience to view some aspect of the world in a certain way. In particular, I shall be turning to the work of Murray S. Davis who, several decades ago, produced two – in my view – sadly underrated articles called, respectively, ‘That’s Interesting!’ (1971) and ‘That’s Classic!’ (1986). In these articles, he explored what enables a specific social theory to capture the imagination of a broad audience of academics. Borrowing from phenomenology and the rhetoric of science, he analyses how theories that are widely circulated or are ‘in the air’ (1971: 312) come to be viewed as interesting by their audiences and, in some cases, even go on to achieve the venerable status of ‘classic’. He draws his examples from the grand theories of sociology (Marx, Durkheim, Weber), but his arguments can be applied to any theory – including, as I shall show, feminist theory. Davis is not concerned with whether a specific theory is good (as in valid or able to adequately explain certain aspects of the social world) or coherent (in terms of the logic of its propositions or consistency of its arguments). Indeed, he argues that no theory ever became famous because it was ‘true’ or coherent. Quite the contrary, in fact. Davis claims that successful theories thrive on ambiguity and incompleteness. Successful theories appeal to a concern regarded as fundamental by a broad audience of scholars, but they do so in a way which is not only unexpected, but inherently hazy and mystifyingly open-ended.
At first glance, intersectionality would appear to have all the makings of a successful feminist theory.  Leaving aside the issue of whether intersectionality can be treated as a full-fledged ‘theory’, I shall take a closer look at what it is about intersectionality that has allowed it to ‘move’ the minds of a broad audience of feminist scholars, not only whetting their interest, but compelling them to enter into theoretical debates and look for ways to use the concept in their own inquiries. Drawing upon Davis’s explanation for what makes a theory successful, I shall investigate the seeming paradox between the recent success of intersectionality within feminist theory and the confusion that it generates among feminist scholars about what it actually is and how to use it. More specifically, I explore the features of intersectionality that account for its success: its focus on a pervasive and fundamental concern in feminist theory, its provision of novelty, its appeal to the generalists as well as the specialists of the discipline, and its inherent ambiguity and open-endedness that beg for further critique and elaboration. After addressing the secret of intersectionality’s success within contemporary feminist theory, I raise the question of whether embracing such a chimerical and – some would argue – scientifically unsound5 concept should be only a reason for celebration or also a reason for some alarm.

Papers and screens

The Guardian reports that the NSW government has abandoned its plan to make cyclists carry photo ID, following consultation with cycling groups.

According to Roads Minister Duncan Gay
The government would instead “encourage” cyclists to carry ID or “emergency contact cards”, to be made available through Cycling NSW and Bicycle NSW ...
This “alternative solution struck the right balance between safety and convenience,” Gay said in a statement.
The requirement for cyclists to carry photo ID or be fined $106 was announced in December last year, along with a number of changes to cycling laws and huge increases in fines for offences.
The ID plan was to take effect in March.
A 2016 members’ survey conducted by Bicycle NSW showed that about 93% of riders already carried ID.
The group had expressed concern that making it mandatory would serve as a disincentive to ride and was a case of cyclists “being singled out”. Its chief executive, Craig Meagher, welcomed the government’s about-turn and the “strong, working relationship” the two bodies had developed in consulting on the issue.
IBalla DCJ in Moutia Elzahed Anors v Commonwealth of Australia and State of NSW [2016] NSWDC 327 has declined to permit Moutia Elzahed to give evidence with her face covered.

The judgment states
This is a claim by four plaintiffs [Moutia Elzahed, Hamdi Alqudsi, Hamza George and Abdulla George] for damages for injuries each of them say they sustained during the execution of a search warrant at their home on 18 September 2014. The AFP is the first defendant, and the New South Wales Police is the second defendant. Liability is in issue.
The first plaintiff is the wife of the second plaintiff, and the mother of the other two plaintiffs. She is a religious Muslim. She wears what I understand is a niqab; that is, her whole body, other than her eyes, is covered. Senior counsel for the plaintiffs informed me earlier today that he intended to call the first plaintiff to give evidence. The issue then arose as to whether she should give that evidence with her face covered or uncovered. Just before I adjourned I was told that the first plaintiff refused to give evidence with her face uncovered.
Since I have resumed after lunch, I have offered other courses to the first plaintiff, that her evidence be taken while she is in a remote room, her face would be uncovered, but she could choose not to see who is watching her give evidence and/or I close the Court so that only lawyers involved in the proceedings would be in the Court. She has decided not to do so.
It is my role to ensure that there is a trial which is fair to all parties. I must balance on the one hand the need to respect the first plaintiff's religious beliefs. In this case, those beliefs mean that she may choose not to give evidence which could impact on the successful prosecution of her case.
On the other hand, I must take into account whether I would be impeded in my ability to fully assess the reliability and credibility of the evidence of the first plaintiff if I am not afforded the opportunity of being able to see her face when she gives evidence. I am well aware that the demeanour of a witness and the viewing of their face is not the only way in which credibility is assessed. In some cases the demeanour of a witness may be misleading. However, neither of those considerations can, in my view, mean that I should be completely deprived of having the assistance of seeing her face to assess her credibility.
I have only heard the evidence of one of the sons. However, yesterday I asked senior counsel for the plaintiff whether there will be a conflict in the evidence as to what actually occurred, and he replied that there is bound to be. He agreed that I will need to make a finding about whose evidence I prefer.
As the resolution of the likely conflict in the evidence as to exactly what occurred that morning is essential to the determination of the proceedings or the part of the proceedings involving the first plaintiff at least and the assessment of the weight to be given to the evidence of the first plaintiff is part of that exercise, I have decided that she can only give evidence with her face uncovered. I decline to permit her to give evidence with her face covered.
Elzahed featured in v Commonwealth of Australia [2015] NSWDC 271, of interest to defamation scholars regarding the imputation through 'vulgar language' that she was 'an unpleasant woman'.

In that judgment the Court stated
Although not strictly speaking a defence, the defendants submitted that the matters complained of, and in particular the statements allegedly made to the first plaintiff, would be likely to be struck out at trial as not being defamatory, on the basis that they were vulgar abuse.
Vulgar abuse and defamatory meaning
The fact that an offensive word appears, or that the publication was made in an angry tone and voice, does not necessarily mean that the publication amounts to a mere abuse. The question is whether or not the matter complained of conveys more than just insulting words. If no defamatory act or condition is capable of being conveyed, then the matter complained of is more likely to amount to mere insult or “vulgar abuse”. It is only in those circumstances that the language will be regarded as merely offensive and vituperative and therefore not actionable: Ralston v Fomich (1992) 66 BCLR (2d) 166 at 169 (SC).
In Mundey v Askin [1982] 2 NSWLR 369, the first case in New South Wales to consider “vulgar abuse”, the defendant, the Premier, said about the plaintiff, during a long speech about his activities: “But don't under-estimate some of these vermin”. The jury found that the whole publication was not defamatory and Mr Mundey appealed. The Court of Appeal upheld the trial judge’s directions to the jury on the basis that the trial judge’s reference to “vulgar abuse” was in the context of whether or not “vulgar abuse” could damage reputation, which would have the effect of rendering a publication not being defamatory.
The impact of “vulgar abuse” on defamatory meaning was more recently the subject of analysis in Bennette v Cohen [2005] NSWCA 341; (2005) 64 NSWLR 81; Tory v Megna [2007] NSWCA 13 and Echo Publications Pty Ltd v Tucker and Anor; Fast Buck$ v Tucker and Anor [2007] NSWCA 73.
In Bennette v Cohen the defendant gave a speech at a fundraiser to raise funds for a person who had previously been sued for defamation by the plaintiff. The imputations included an imputation that “the plaintiff has done illegal work which severely damaged the environment”, which the jury considered was not defamatory of the plaintiff (imputations that the plaintiff was a “thug” and a “bully” were, however, found to be defamatory). In holding that the jury’s finding was within the range of conclusions reasonably available, the court noted (at [25]) that in considering whether an imputation was defamatory, it was for the jury to consider the meaning of the words and of the imputations in the context in which they were spoken, namely an address to a meeting. At [46]–[51] Bryson JA analysed the law relating to “vulgar abuse” and concluded (at [51]):
“In my opinion it is clear from the passage I have set out from Mundey v Askin that there is not a dichotomy between vulgar abuse (or mere vulgar abuse) on the one hand and defamatory matter on the other, and that it does not follow from establishing that the matter complained of was mere vulgar abuse that it was not defamatory. What is for decision is whether the words spoken bore a meaning that was likely to affect the reputation of the person spoken of. “Vulgar abuse” and “mere vulgar abuse” are not terms of art nor are they capable of high definition or detailed exposition; but in determining the meaning of words used and whether their meaning was defamatory it may be open to consideration whether the terms used and the context in which they were used were such that there was no likelihood of their affecting the reputation of the person spoken of; that no notice would be taken of them. This would not be the right conclusion on all statements which could accurately be described as vulgar abuse or mere vulgar abuse; much vulgar abuse is highly defamatory.”
In Tory v Megna, the s 7A trial jury rejected a submission that the “rubbishy nature” of 17 anonymous newsletters, which accused the plaintiff (inter alia) of being “vermin”, meant that they were “junk mail”, incapable of conveying a defamatory meaning. The Court of Appeal (at [54]) dismissed the appeal on the facts, holding that the newsletters were “a serious attempt to communicate information.” In Echo Publications Pty Ltd v Tucker and Anor; Fast Buck$ v Tucker and Anor a submission that an imputation that the plaintiff was a “bully” was not defamatory was dismissed. Hodgson JA noted at [130]:
“Turning to imputation (h), namely that Mr Tucker was a “bully”, it seems to me that that is an imputation which, because of its vagueness, might possibly have been considered not likely to cause an ordinary reasonable person to think less of Mr Tucker or to shun or avoid him. It is true that the circumstance that something might be considered “vulgar abuse” does not prevent it from being defamation; but the circumstance that this imputation may be considered mere abuse may permit a jury to conclude that the imputation is one which in the circumstances is not likely to cause ordinary reasonable persons to think badly of Mr Tucker: cf. Mundey v Askin [1982] 2 NSWLR 369 at 371–2; Bennette at [45]–[51].”
It can be seen from the above analysis that different findings as to the defamatory meaning of the words words “bully” and “vermin” have been reached. However, to make anything of this would be to ignore the warning of Bryson JA in Bennette v Cohen at [57], namely that “the nature of defamation is that there are no close analogies” and that it is dangerous, when determining whether imputations are defamatory, to have regard to other cases concerning specific words.
For these reasons, it is necessary to be cautious about whether a word such as “bitch” is capably of conveying a defamatory meaning, as different views have been taken in cases where this word is used, depending on the rest of the context. In Piscioneri v Brisciani [2015] ACTSC 106, Burns J rejected a submission that posts in a forum headed “Bitching and Rants”, which included a series of vile insults (of which “stupid bitch” was one of the more anodyne), were mere vulgar abuse, and awarded the plaintiff damages of $82,000. However, in Wood v Branson (1952) 3 SALR 369 the word “bitch” was considered mere vulgar abuse (see also Blaser v Krattiger (1921) 99 Or 392 (“son of a bitch”), Culverhouse v Cooke Centre for Learning and Development Inc (1998) 177 Misc. 2d 365, 675 NYS 2d 776 (“rich bitch”), Travers v Shane (1995) 4 Mass L Rptr 141 (“fat, fucking, disgusting bitch”)).
However, the distinguishing feature of this publication is that the word “bitch” is more or less all that was said. There is no context to give it flavour, or meaning, of any kind. In those circumstances, it is hard to see how any imputation, let alone the strained claim that the plaintiff is “an unpleasant woman”, could be made out. No imputation can be conveyed by the word “bitch”, for the reasons explained by Garibaldi J in Ward v Zelikovsky (1994) 136 NJ 516, 643 A 2d 972 at 982 – 983:
“The term ‘bitch’ is undoubtedly disparaging. But to hold that calling someone a ‘bitch’ is actionable would require us to imbue the term with a meaning it does not have. Such a holding would, in effect, say that some objective facts exist to justify characterising someone as a bitch. If calling someone a bitch is actionable, defendants must be able to raise the defence of truth. ‘Bitch” in its common everyday use is vulgar but non-actionable name-calling that is incapable of objective truth or falsity. A reasonable listener hearing the word ‘bitch’ would interpret the term to indicate merely that the speaker disliked Mrs Ward [the plaintiff] and is otherwise inarticulate. Although Zelikovsky’s [the defendant] manner of expression was very offensive, our slander laws do not redress offensive ideas.”
Adopting the same approach to the findings of fact necessary for this application as those taken by McCallum J in Bleyer v Google Inc, I am of the view that the first plaintiff’s prospects of success in establishing the first matter complained of conveyed a defamatory imputation are extremely poor.
That would leave only the second matter complained of, namely a statement made by one or more of the defendants’ servants or agents to the parents of the third and fourth plaintiffs that their sons were terrorists. Given the limited extent of publication, the circumstances of the arrest and the family relationship, a defence of unlikelihood of harm would have strong prospects of success.

30 November 2016

Political Communication in the APS

The national Public Service Commission has released a discussion paper regarding public comment by Australian Public Service staff.

The paper follows controversy over Banerji and other litigation, alongside recent legislation in the ACT that I discussed in an Alternative Law Journal item. It sits somewhat oddly with statements, noted in this blog, by Public Service Commissioner John Lloyd regarding the Freedom of Information Act (Cth)

The Commission comments
5. The rights and responsibilities of public servants as private citizens has been an area of debate and evolution since the establishment of the APS. From the outset Governments have passed legislation to ensure that public servants in their private lives observe basic standards of behaviour. The Public Service Act 1902, for example, allowed for the dismissal of officers for ‘any disgraceful or improper conduct.’
6. This debate has included the question of whether public servants should be free to make public comment, whether that be about the work of their agency, the political issues of the day, or any other matter. In 1902, for example, APS employees were forbidden from discussing or promoting political movements or from commenting on any matter to do with the administration of their agencies.
7. This is not unique to the public service. However, APS employees face a particular concern. There are increasing calls that they should be able to participate more fully in the political affairs of the Commonwealth without risk to their employment. Media articles discussing policies limiting the rights of public servants to express their views are typically accompanied by strongly negative reactions on social media platforms.
8. These comments draw a distinction that emphasises the unusual position of APS employees. APS employees are at the same time employees of the Government and citizens. As employees they have obligations to their employer, but as citizens it is argued that they should be able to participate in political activities as freely as other citizens. Some commentators have gone so far as to suggest that as public servants they are often uniquely well-placed to contribute to discussion about the development of public policy.
What is the current APS guidance on making public comment?
9. The current Australian Public Service Commission guidance, published in APS Values and Code of Conduct in Practice, recognises that APS employees can make public comment in a number of different capacities: a. in a professional capacity on behalf of their employing agency b. in a professional or expert capacity as a private citizen c. as a private citizen.
10. The guidance adopts the principle that APS employees may generally make public comment in an unofficial capacity, so long as the comment is lawful and the employee makes it clear they are expressing their own views.
11. However, as exceptions to this principle it states that it is not appropriate for APS employees to make comment that is, or could reasonably be perceived to be:
a. being made on behalf of their agency or the Government, rather than an expression of a personal view
b. compromising the employee's capacity to fulfil their duties in an unbiased manner—this applies particularly where comment is made about policies and programs of the employee's agency
c. so harsh or extreme in its criticism of the Government, a Member of Parliament from another political party, or their respective policies, that it raises questions about the employee's capacity to work professionally, efficiently or impartially
d. so strong in its criticism of an agency's administration that it could seriously disrupt the workplace
e. a gratuitous personal attack that might reasonably be perceived to be connected with their employment
f. compromising public confidence in the agency or the APS.
12. The guidance also recognises that employees of the Senior Executive Service have a particular responsibility. It notes that because of: the influence that they carry with stakeholders, and because they are likely to be required to advise on, or lead, the implementation of government policies and programs, SES employees should be particularly careful when making public comment.
13. The guidance also notes, importantly, that making public comment anonymously, or using a pseudonym, does not protect an employee from any subsequent action. There are a number of cases where APS employees who had used pseudonyms were identified and found to have breached the Code of Conduct in the comments they had posted on social media platforms
The Commission goes on to ask 'What is the legal basis for the position?', stating
14. Section 13(11) of the Public Service Act 1999 (the Act) obliges APS employees to behave at all times in a way that upholds: a. the APS Values and APS Employment Principles; and b. the integrity and good reputation of the employee's Agency and the APS.
15. The APS Values are set out in section 10 of the Act. One of the Values is Impartial: The APS is apolitical and provides the Government with advice that is frank, honest, timely, and based on the best available evidence.
16. Under section 11 of the Act, the Australian Public Service Commissioner may issue directions for the purpose of determining the scope or application of the Values. These directions are binding on all APS employees.
17. The directions state that the Impartial Value requires APS employees, among other things, to
a. ensure that their actions do not ‘provide grounds for a reasonable person to question the ability of the individual to serve the Government of the day’, and
b. implement Government policies in a way that is free from bias.
18. Section 13(11) of the Act requires employees to behave in a way that upholds the good reputation and integrity of their agency and the APS. This places a positive obligation on employees. a. It is not necessary to establish actual damage to the reputation of the agency or the APS in order to find that this section has been breached. b. A public servant agreeing with critical comments about government policy may not be consistent with this requirement, particularly if their agency is responsible for the development or delivery of that policy.
19. Section 13(5) of the Act requires APS employees to comply with lawful and reasonable directions given to them by their employer in connection with their employment. This power has been used to regulate the out of hours conduct of APS employees where there is a connection to the workplace. 
 It notes
20. Employers in both the public and private sectors can take steps to regulate the private behaviour of their employees if there is a sufficient connection between the workplace and the behaviour in question.
21. For example, to reduce the risk of harassment an employer can direct an employee not to contact a colleague outside of working hours or away from work premises. It is well recognised that disputes between employees can have an impact on relationships in the workplace. Employers have a right to take reasonable, proportionate steps to protect their own business interests.
22. This has included action taken by employers to dismiss employees who abuse each other, or attack their employer, on social media platforms.
23 In the Australian Public Service, the Code of Conduct does affect the private lives of APS employees. Section 13(11) of the Code expressly applies ‘at all times’, for example. Other sections of the Code have a similar effect even where there is no express term. Section 13(8), for example, forbids employees from misusing Commonwealth resources. It is clear that this applies at all times, even though that is not stipulated in the legislation.
24. Other sections of the Code apply ‘in connection with the employment’ of the employee. These sections also apply to out of hours activity where there is some connection to the workplace
After discussing private sector practice it concludes
40. Social media guidelines developed more recently go beyond managing the risk of content and focus as well on managing the risk of use. Many identified as risk to their agencies the possibility that information about an employee’s identity could be obtained from social media, and how that information can be used for identity fraud purposes and/or to compromise the integrity of employees.
41. Some organisations highlight the risk to ICT infrastructure that the personal use of social media on work platforms may represent. This included the possibility of importing viruses or malware, using common passwords across platforms, or even the possible impact on office bandwidth usage. In relation to use of social media at work, this guidance included matters such as performance of duties and productivity.
PSC 'Questions for consideration' are
 1. Should APS employees be prevented from making public comment on all political issues? Should there be different rules for different groups of APS employees?
2. Should APS employees be prevented explicitly from making critical public comment about services or programs administered by their agencies?
3. Should senior public servants have specific limitations about making public comments?
4. Should public servants posting in a private capacity be able to say anything as long as it includes a clear disclaimer stating that the opinion they have expressed is purely a statement of their own opinion and not that of their employer and is otherwise lawful?
5. Are the requirements of the APSC guidelines expressed clearly? Can they be made simpler and easier to understand?

Evidence

In Wright v Wright (1910) 16 Argus LR 602
A wife petitioned for dissolution of marriage on the ground of her husband's repeated act of adultery; and, on the hearing, tendered as the only evidence of adultery a certified copy of an entry in the Register of Births in Brisbane, being a record of the birth of an illegitimate child of the husband registered by him. 
It was held by A'Beckett J that 'there being no reasonable doubt as to identity, and no circumstances of suspicion, the entry might be accepted as sufficient proof of adultery'.

The judgment states
 Alice May Emma Wright petitioned for dissolution of her marriage with Maxwell Parker Wright, upon the ground of adultery in the conjugal residence, and of a repeated act of adultery. In support of the second ground, the petitioner tendered as the only evidence a certificate of the Registrar-General, Brisbane, being a copy of an entry of the birth, on 20th January, 1910, of an illegitimate child, the father of whom was described as Maxwell Parker Wright, the person who registered the birth.
In this case the wife sought divorce on the ground of her husband's adultery, on the first occasion with a woman in the conjugal residence, and afterwards with another woman in Queensland. As to the first adultery I have no evidence but that of the wife of admissions made to her by the husband and by the woman. As to the second, I have nothing but a certified copy of an entry in the Register of Births in Brisbane, which shows that a person, describing himself and his other children in such a way as unmistakably to identify him as the husband of the petitioner, registered the birth of an illegitimate child born in Queensland, of which he described himself as the father. I doubted whether I could act upon this evidence alone, although I did not suspect collusion or any untruth in the statements made in the registration. The only way in which the registration would be evidence would be as an admission of adultery by the husband. It would have been possible for someone to have impersonated the bus- band in registering the birth. I think that the Court should not accept meagre evidence or doubtful ad missions where direct evidence is easily available. It was pointed out that in this case the procuring of direct evidence would certainly be costly, and prob­ ably be difficult, and that if I were satisfied that the admission was genuine I was at liberty to act upon it. Passing over the possibility of impersonation as too remote to cause doubt, an admission made by a father in registering a birth is made under serious sanctions. Untruth in the declaration is punishable by imprisonment. The declaration is made in the performance of a statutory obligation.
The other facts before me lead to no suspicion. The husband was personally served, and according to the affidavits on which leave to proceed was given, virtually admitted the case against him. The wife was enabled to obtain the copy certificate by an anonymous letter, unobjectionable in its tone and definite in its information, from someone signing her self her friend. Feeling no doubt as to the facts, I have evidence which I may accept as sufficient to prove them. I therefore grant the order nisi, on the ground of a repeated act of adultery, with costs against the respondent, and I give the petitioner the custody of the children of the marriage

Realism

'Legal Amateurism' (Cornell Law School research paper No. 16-41) by Annelise Riles comments 
One of the recurring complaints about the American legal academy is that it is amateuristic. Scholars from other fields complain about the vacuousness of legal academics’ analytical categories, the casual way data is made to fit arguments, or the lack of commitment to particular problems as American legal scholars casually hop from topic to topic or field to field to keep up with the hottest trends and current events. American law professors see themselves more as general social commentators, advisors to policy makers and industry, and overall “smart guys” than as traditional academics. Another common complaint is that legal academics routinely deploy paradigms that have been long discredited and outdated in the social sciences. Sociolegal scholars are often left to scratch their heads when confronted with the casual way property scholars use non-Western legal cultures to make inferences about earlier moments in the development of Euro-American law. This kind of stagist evolutionism when out of favor in the social sciences in the 1920s. For decades now, the same critiques of legal studies have been heard in the social and humanistic sciences and, still, the old methods persist.
My own career began with a quite naïve ambition to professionalize this amateuristic discipline. As a young anthropologist, it was downright infuriating to me that law professors did not read; that they did not take an interests in the details; that they seemed more engaged by acts of self-promotion than by the furthering of knowledge about the law. Somewhere along the way, however, I was forced to confront the realization that an anthropologist of law should take legal amateurism as seriously as any other knowledge practice one might study ethnographically. Indeed, I want to suggest that an appreciation of legal amateurism is critical to an understanding of contemporary legal thought. In particular, legal amateurism gives us insight into the incompleteness of the so-called Realist revolution in American law. The amateurism of legal thought was a key target of legal realism, with its ambitions to professionalize legal thinking through engagement with the social sciences from the standpoint of the modernist cult of expertise. In this vision, the link of law to the social required greater expertise and specialization in the disciplines of the social. The success of the Realist revolution at an ideological level is evidenced by the fact that amateurism has become something of an epithet, and I use it purposely to call into question the hegemony that frames it as such. And yet, amateurism—that which does not fit with the modernist vision—persists in the law. It persists in the way legal academics and practicing lawyers alike, indulge in game-like performances of “brilliance” (Gordley 1993) and intentionally use methods of inquiry which deviate from the modernist ideal.
My ultimate claim is that contemporary legal thought cannot be reduced to a theoretical position and an accompanying epistemology. Rather, it is first an aesthetic propensity--a genre of self-presentation, a set of skills of thought and performance, a style of life and work. As such, it exceeds intellectual fashions and ideological commitments of the moment. In this respect, contemporary legal thought is not simply an artifact of the contemporary. My own ethnographic work in Japan has led me to conclude that this aesthetic dimension of legal thought also transcends differences traditionally attributed to the distinction between the civil law and the common law, or other national differences. While all of these differences and distinctions are important and relevant, what it means to be a lawyer and think like a lawyer entails certain distinctive aesthetics which I will term legal amateurism.
I offer a description of legal amateurism with the help of two examples drawn from the engagements of legal scholars and legal practitioners with one central legal doctrine—the doctrine of financial collateralization. Through the lens of legal amateurism, I will argue, we come to understand that Realist assertions to the contrary notwithstanding, legal scholarship is not quite like sociology, or political science, or philosophy, or critical theory. This is because of the intertwined relationship between the identities of the legal scholar and the legal practitioner—identities that were formed by legal formalism, and which remain legal formalism’s enduring legacy. I argue that these identities are the preconditions for enacting legal amateurism and also the effects of legal amateurism. One cannot understand the nature of legal scholarship without understanding legal amateurism and hence without making sense of legal knowledge in terms of relations between the legal academy and the profession (Dezalay and Garth 1996).
In some respects, this approach helps to explain the limits of what is possible within the legal academy—why, for example, certain kinds of scholarship or certain kinds of scholars fail to be recognized as legitimate, or why certain ideological positions predominate in legal scholarship and practice. Yet I do not intend these observations as a critique. On the contrary, I hope to demonstrate the many theoretical and even political potentialities I have come to see in legal amateurism. I conclude by suggesting some ways in which critical scholars and scholars in other disciplines might embrace legal amateurism as a modality of experimentalism.
Riles concludes
Conclusion: Amateurism as Professionalism 25 My claim, then, is that legal amateurism is the very heart of legal professionalism. One cannot be a great legal professional without being a legal amateur as well. It is in the context of amateur work— seemingly useless, often undervalued work—that lawyers and legal scholars develop truly novel solutions to problems, or novel ways of thinking about the law. Legal amateurism is also what often gives professional legal work its greatest meaning: Many of the lawyers and legal scholars I have worked with would count their amateur work as the most important, the most interesting, the most exciting and fulfilling piece of their work lives. As I have shown, legal amateurism is in some respects always a performance of privilege (cf. Mertz 2007), and with this privilege comes responsibility for the context and consequences of one’s work and one’s ideas. I want to hold onto my initial revulsion to the (often highly masculinist) arrogance of the law professor’s performance of what it is to be a smart guy. Yet at the same time, I want to give voice to what I have come to appreciate through fieldwork: legal amateurism may in some cases serve as a medium for rejuvenation when it enables lawyers to create spaces for reflection in a world in which speed, and a lack of time, is a fundamental cause of errors, failures of moral and ethical judgment, and “silo thinking” (Tett 2015).
I want to suggest, therefore, that we begin to acknowledge legal amateurism as a dimension of legal expertise. Doing so may have important implications for the pedagogy of law, and for the evaluation of law students and novice lawyers, where “skills training” is the current fashion, but what is defined as “legal skills” is far more narrow and less intellectually adventurous than the amateurism I have described here. More controversially for law faculties, legal amateurism also brings attention to the symbolic place of the legal academy within the profession. It demands that we understand the legal academy as integrated first into the profession and only secondarily into the social science division of the modern university. For interdisciplinary scholars such as myself, an appreciation of legal amateurism suggests that we abandon the impulse to critique legal scholars from the viewpoint of social scientific standards and instead consider what might be learned from legal amateurism in our hyper-professionalized social scientific disciplines.

28 November 2016

SACC Interest

The national Government has released its response to the final report of the Independent Review of the Small Amount Credit Contract (SACC) laws, a regime that on occasion saw consumers paying upwards of 880% interest. The Review reflected the National Consumer Credit Protection Act 2009 (Cth).

Overall the Government indicates that legislation (albeit with grandfathering) will provide for
  •  retaining the existing price caps on SACCs;
  • extending the SACC protected earnings amount requirement to all consumers and lowering it to 10 per cent of the consumer’s net income (currently, for those consumers who receive 50 per cent or more income through payments from Centrelink, total SACC repayments are capped at 20 per cent of a consumer’s gross income); 
  • introducing a cap on total payments on a consumer lease equal to the base price of the good plus 4 per cent of that price per month; and
  •  introducing a protected earnings amount requirement for consumer lease providers of 10 per cent of net income for all consumers, equivalent but separate to the requirement for SACCs.
 The Recommendations were
R1 – Affordability
Extend the protected earnings amount regulation to cover SACCs provided to all consumers. Reduce the cap on the total amount of all SACC repayments (including under the proposed SACC) from 20 per cent of the consumer’s gross income to 10 per cent of the consumer’s net (that is, after tax) income. Subject to these changes being accepted, retain the existing 20 per cent establishment fee and 4 per cent monthly fee maximums.
The Government accepts these recommendations [1 and 2] in full. The Government supports the panel’s direction to promote financial inclusion by ensuring that consumers do not enter into unaffordable SACCs whose repayment absorbs too large a proportion of their net income. The Government notes that these recommendations directly target the harm associated with repeat borrowing, rather than repeat borrowing per se, by reducing the likelihood of a debt spiral occurring, while still enabling consumers to access further SACCs if the repayments are affordable. The Government notes that it is unusual to have such prescriptive requirements regarding the amount that a consumer can devote to a particular form of finance; however, the panel’s report highlighted the vulnerable customer base of SACCs. The panel noted that the principles based responsible lending obligations appear insufficient alone to prevent observed harm; a more strict affordability test is warranted.
R2 – Suitability
Remove the rebuttable presumption that a loan is presumed to be unsuitable if either the consumer is in default under another SACC, or in the 90-day period before the assessment, the consumer has had two or more other SACCs. This recommendation is made on the condition that it is implemented together with Recommendation 1.
The Government accepts this proposal. To assist SACC providers in complying with this obligation, the Government will provide a safe harbour allowing providers to rely on a consumer’s bank statements when determining a consumer’s average income for the purposes of the protected earnings amount, unless there is evidence suggesting that it is inappropriate to do so. The Government supports removing the current rebuttable presumption that a SACC is considered unsuitable if a consumer has had two or more SACCs in 90 days.
R3 – Short term credit contracts Maintain the existing ban on credit contracts with terms less than 15 days.
The Government accepts this recommendation in full. Currently there is an outright ban on a provider offering a credit contract which has a term of 15 days or less irrespective of whether the credit contract is secured. The Government supports the panel’s recommendation to maintain this ban. Loans of less than 15 days consume a disproportionate amount of a consumer’s income due to large repayment amounts in a short period of time. These loans are more likely to trap consumers in a debt spiral than loans with longer durations.
R4 – Direct debit fees
Direct debit fees should be incorporated into the existing SACC fee cap.
The Government notes this recommendation. This recommendation is the responsibility of ASIC, as the independent regulator. In response to the recommendation, ASIC announced on 4 November 2016 that it would remove ASIC Class Order [CO 13/818] Certain small amount credit contracts. The class order allowed SACC providers to charge a separate fee for direct debit processing. The removal ensures that consumers are not charged direct debit fees when taking out a SACC. The change will apply to any SACC provided from 1 February 2017. Loans that commence before 1 February 2017 will continue to operate under the existing rules and third party direct debits will be able to be charged on those loans.
R5 – Equal repayments and sanction order
To meet the definition of a SACC, the credit contract must have equal repayments over the life of the loan (noting that there may need to be limited exceptions to this rule). Where a contract does not meet this requirement the credit provider cannot charge more than an annual precent rate (APR) of 48 per cent. The Government partially accepts this recommendation.
The Government supports the panel’s recommendation that SACCs should have equal repayments over the life of the loan as it will stop SACC providers artificially extending the term of the loan. ASIC will have the power to allow limited exceptions where appropriate. However, the Government does not support the panel’s recommendation that, where a contract does not meet the equal repayment requirement, a credit provider cannot charge more than an annual percentage rate (APR) of 48 per cent. This would effectively create a specific penalty regime for this requirement, and the Government would prefer a consistent approach to penalties across the SACC regime.
R6 – SACC database
A national database of SACCs should not be introduced at this stage. The major banks should be encouraged to participate in the comprehensive credit reporting regime at the earliest date.
The Government accepts this recommendation in full. This does not preclude the industry from developing its own database.
Recommendation 7 – Early repayment
No 4 per cent monthly fee can be charged for a month after the SACC is discharged by its early repayment. If a consumer repays a SACC early, the credit provider under the SACC cannot charge the monthly fee in respect of any outstanding months of the original term of the SACC after the consumer has repaid the outstanding balance and those amounts should be deducted from the outstanding balance at the time it is paid. The Government accepts this recommendation in full. This will allow consumers, if their loan is discharged early, to only pay fees for the new shorter length of the loan.
R8 – Unsolicited offers
SACC providers should be prevented from making unsolicited SACC offers to current or previous consumers.
The Government accepts this recommendation in full. The Government agrees with the principle that consumers should only apply for a SACC when they pro-actively choose to do so, rather than being prompted by a SACC provider.
R9 – Referrals to other SACC providers
SACC providers should not receive a payment or any other benefit for a referral made to another SACC provider.
The Government does not accept this recommendation. The panel considered that it would be inappropriate for SACC providers to refer a customer to another SACC provider after determining that the customer is unsuitable to receive a SACC. During the consultations undertaken following receipt of the final report, it became apparent that there are legitimate instances where it may be appropriate for a referral to occur. For example, some SACC providers only target specific geographical locations. If such a SACC provider receives an application from a consumer from another location, they may wish to refer that consumer to another SACC provider. In addition, paying for referrals may be less expensive than other means of attracting customers, who are in any case subject to a cap on costs (a 20 per cent establishment fee and a 4 per cent monthly fee).
R10 – Default fees
SACC providers should only be permitted to charge a default fee that represents their actual costs arising from a consumer defaulting on a SACC up to a maximum of $10 per week. The existing limitation of the amount recoverable in the event of default to twice the adjusted credit amount should be retained.
The Government does not accept this recommendation. The Government will maintain the existing default cap of twice the adjusted credit amount. Evidence provided by the SACC industry suggests that the $10 per week default fee does not cover the costs of managing a defaulting borrower. The Government considers the existing cap provides sufficient restrictions to prevent SACC providers from over-charging a consumer. Consumer Leases R
R11 – Cap on cost to consumers
A cap on the total amount of the payments to be made under a consumer lease of household goods should be introduced. The cap should be a multiple of the Base Price of the goods, determined by adding 4 per cent of the Base Price for each whole month of the lease term to the amount of the Base Price. For a lease with a term of greater than 48 months, the term should be deemed to be 48 months for the purposes of the calculation of the cap.
The Government accepts this recommendation in full. The Government supports this recommendation. The SACC review identified the high cost of consumer leases, particularly to vulnerable consumers. This will provide, for example, a cap of 1.48 times of the Base Price of the goods for a 12 month lease and a multiple of 1.96 times the Base Price of the goods for a two year lease. Leases of four years or more would be subject to a cap of 2.92 times the Base Price of the goods. For example, a two year lease for a TV valued at $500 would be limited to total payments of $980. This recommendation will make the regulation of consumer leases more consistent with that of credit contracts, which are subject to a 48 per cent APR cap. However, in recognition of the different costs facing consumer lease providers, the Government supports a higher cap on costs for consumer leases.
12 – Base Price of goods
The Base Price for new goods should be the recommended retail price or the price agreed in store, where this price is below the recommended retail price. Further work should be done to define the Base Price for second hand goods. The Government accepts this recommendation with an amendment.
The Government supports this recommendation for new goods. To provide a clear understandable process for applying the cap to second hand goods, second hand goods will be subject to the same cap as new goods, with a 10 per cent discount to the original Base Price per annum, up to a maximum of 30 per cent. For example, a $500 TV re-leased after two years would have a new base price of $400 for the purposes of calculating the cap.
R13 – Add-on services and features
The cost (if any) of add-on services and features, apart from delivery, should be included in the cap. A separate one-off delivery fee should be permitted. That fee should be limited to the reasonable costs of delivery of the leased good which appropriately account for any cost savings if there is a bulk delivery of goods to an area.
The Government accepts this recommendation with an amendment. The Government accepts that certain leased goods may necessarily have significant installation costs, and is therefore allowing installation on some items be excluded from the cap. The Government will provide ASIC with the ability to exempt the installation costs of certain leased goods from inclusion in the cap on costs where ASIC considers it appropriate to do so.
R14 – Consumer leases to which the cap applies The cap should apply to all leases of household goods including electronic goods. Further consultation should take place on whether the cap should apply to consumer leases of motor vehicles.
The Government accepts this recommendation with an amendment. Following further consultation after the release of the final report, the Government will apply the cap on costs to all consumer leases. The Government notes that novated leases and small business leases are not covered by the Credit Act, and will not be affected by any changes.
R15 –Affordability A
protected earnings amount requirement be introduced for leases of household goods, whereby lessors cannot require consumers to pay more than 10 per cent of their net income in rental payments under consumer leases of household goods, so that the total amount of all rental payments (including under the proposed lease) cannot exceed 10 per cent of their net income in each payment period.
The Government accepts this recommendation in full. The Government notes that it is unusual to have such prescriptive requirements regarding the amount that a consumer can devote to a particular form of finance; however, the panel’s report highlighted the vulnerable customer base of consumer leases. The panel noted that the principles based responsible lending obligations appear insufficient alone to prevent observed harm; a more strict affordability test is warranted. The Government accepts this proposal. Capping the amount of income that can be devoted to lease payments will ensure that consumers do not get locked into long term lease contracts they cannot afford, while still enabling consumers to lease a wide range of goods. To assist lessors in complying with this obligation, the Government will provide a safe harbour allowing lessors to rely on a consumer’s bank statements when determining a consumer’s average income for the purposes of the protected earnings amount, unless there is evidence suggesting that it is inappropriate to do so.
R16 – Centrepay implementation
The Department of Human Services consider making the caps in Recommendations 11 and 15 mandatory as soon as practicable for lessors who utilise or seek to utilise the Centrepay system.
The Government supports this recommendation in-principle. The Government supports this recommendation in-principle. Action in response to the recommendation will take account of the outcome of litigation between The Aboriginal Community Benefit Fund Pty Ltd and the Chief Executive Centrelink.
R17 – Early termination fees
The maximum amount that a lessor can charge on termination of a consumer lease should be imposed by way of a formula or principles that provide an appropriate and reasonable estimate of the lessors’ losses from early repayment.
The Government accepts this recommendation in full. The Government supports this recommendation in-principle, and will undertake further consultation to finalise the formula or principles.
R18 – Ban on the unsolicited marketing of consumer leases
There should be a prohibition on the unsolicited selling of consumer leases of household goods, addressing current unfair practices used to market these goods.
The Government partially accepts this recommendation. The Government will prohibit door to door selling of consumer leases. The final report highlights the concerns that sales through unsolicited approaches are unfair and have the capacity to cause financial harm irrespective of the target market. However, difficulties with distinguishing between unsolicited selling and marketing mean that the Government will only prohibit door to door sales. 
R19 – Bank statements
Retain the obligation for SACC providers to obtain and consider 90 days of bank statements before providing a SACC, and introduce an equivalent obligation for lessors of household goods. Introduce a prohibition on using information obtained from bank statements for purposes other than compliance with responsible lending obligations. ASIC should continue its discussions with software providers, banking institutions and SACC providers with a view to ensuring that ePayment Code protections are retained where consumers provide their bank account log-in details in order for a SACC provider to comply with their obligation to obtain 90 days of bank statements, for responsible lending purposes.
The Government accepts this recommendation in full. The Government supports retaining the requirement for SACC providers to collect 90 days of bank statements before providing a SACC as well as introducing a requirement that lessors must also collect 90 days of bank statements. Evidence from the final report shows that lessors are not making sufficient inquiries when providing a lease and may be in a position to make a more accurate assessment of consumers’ circumstances if they collected at least 90 days of bank statements, in addition to their responsible lending obligations. The Government also supports introducing a prohibition on using information obtained from bank statements for purposes other than compliance with responsible lending obligations.
R20 – Documenting suitability assessments
Introduce a requirement that SACC providers and lessors under a consumer lease are required at the time the assessment is made to document in writing their assessment that a proposed contract or lease is suitable. The Government accepts this recommendation in full. This recommendation strengthens the responsible lending obligations.
R21 – Warning statements
Introduce a requirement for lessors under consumer leases of household goods to provide consumers with a warning statement, designed to assist consumers to make better decisions as to whether to enter into a consumer lease, including by informing consumers of the availability of alternatives to these leases. In relation to both the proposed warning statement for consumer leases of household goods and the current warning statement in respect of SACCs, provide ASIC with the power to modify the requirements for the statement (including the content and when the warning statement has to be provided) to maximise the impact on consumers. The Government accepts this recommendation in full. The Government supports lessors being required to provide consumers with a warning statement to assist consumers in making more informed decisions. The Government considers that giving ASIC the flexibility to modify the requirements for the statement will likely result in a more effective warning over time.
R22 – Disclosure
Introduce a requirement that SACC providers and lessors under a consumer lease of household goods be required to disclose the cost of their products as an APR. Introduce a requirement that lessors under a consumer lease of household goods be required to disclose the Base Price of the goods being leased, and the difference between the Base Price and the total payments under the lease.
The Government partially accepts this recommendation. The Government supports disclosing the base price of a lease and the difference between the base price and the total cost of a consumer lease. The Government does not consider it appropriate to require disclosure of an APR for consumer leases as in order to calculate an APR it is necessary to treat the lease as a sale by instalment and assume that the consumer owns the good at the end of the lease. This is not the case. In addition, the Government does not consider it appropriate to require disclosure of an APR for SACCs. While the APR does accurately reflect their high cost nature, this is partly a reflection of the short term nature of SACCs.
R23 – Penalties
Encourage a rigorous approach to strict compliance by extending the application of the existing civil penalty regime in Part 6 of the National Credit Code to consumer leases of household goods and to SACCs, and, in relation to contraventions of certain specific obligations by SACC providers and lessors, provide for automatic loss of the right to their charges under the contract.
The Government accepts this recommendation in full. The Government supports this recommendation as it will encourage SACC providers and lessors to comply with the Credit Act.
R24 – Avoidance
The Government should amend the Credit Act to regulate indefinite term leases, address avoidance through entities using business models that are not regulated by the Credit Act, and address conduct by licensees adopting practices to avoid the restrictions on the maximum amount that can be charged under a consumer lease of household goods or a SACC, or any of the conduct obligations that only apply to a consumer lease of household goods or a SACC.
The Government accepts this recommendation in full. The Government supports regulating indefinite term leases. As these products are currently exempted from the consumer protections in the Credit Act, providers are not required to hold an Australian Credit Licence or meet responsible lending obligations. This has resulted in opportunities for regulatory arbitrage and has been relied upon by fringe providers of short-term and indefinite leases to avoid regulation, including where the consumer may be disadvantaged by the use of an unregulated lease relative to a consumer lease. The introduction of an anti-avoidance provision will assist in avoiding a drift to non-compliance where providers who are complying with the Credit Act are losing business to those who are not complying and are, therefore, under financial pressure to lower their own standards. It will also minimise consumer detriment resulting from businesses which are avoiding compliance with cost caps and additional responsible lending and conduct requirements.

26 November 2016

Propertisation

'‘Abandonment’ and the acquisition of property rights in separated human biomaterials' by Neil Maddox in (2016) Medical Law International 1-23 offers
a critique of the concept of ‘abandonment’ when utilized in relation to separated human biomaterials. In the absence of the recognition of even limited property rights in the human source of such materials, the author contends that utilizing abandonment is meaningless and misleading. Absurd consequences need not result from recognition of such rights and indeed most cases of purported abandonment of human tissue are more akin to voluntary transfers. Describing such transfers in terms of abandonment obscures questions as to the agency and the scope of the fiduciary duties of medical professionals and researchers. Income rights in such materials are more appropriately determined as normative questions as to who should benefit from windfall wealth in human biomaterials, not by reference to abandonment. An alternative framework that recognized that the source of human tissue had limited property rights in it would solve many of the conceptual difficulties outlined. 
Maddox argues
Modern advances in biotechnology have led to rigorous debate as to how we properly regulate biological materials once they have been separated from the person. There are conflicting views as the usefulness of utilizing a property model to deal with these issues. Questions as to the ownership of such separated materials, and in particular whether they vests in its source or a subsequent appropriator, such as a medical research institute, have led to some notable litigation. Broadly, these disputes can be divided into those where the power to control the materials is in issue and those where it is the entitlement to the income from their commercialization. To admit that the source has property rights in their tissue after it has been separated from their body, it is feared by some, would impose onerous costs upon medical researchers in investigating title, and would impede research. To prevent this, so this argument goes, the source should be granted no property in their own biological materials.  Nonetheless, and somewhat incongruously, a concept derived from property law, that of ‘abandonment’ has been invoked in this debate in aid of this view.
Abandonment first appears prominently in a report of the Nuffield Council on Bioethics in 1995 concerning legal and ethical issues relating to human tissue. The report recommended, inter alia, that in any consent to treatment, tissue removed in the course of that treatment would be regarded as abandoned by its source.
Such an approach would conveniently preclude the source of tissue from making any subsequent claims to it, protecting the hospital and subsequent researchers from having to fend off litigation that might impede the smooth running of the hospital and the progress of important medical research. In other words, it is a simple and easy way to resolve any potential title disputes relating to human tissue. The normative merits of this approach are not the focus of this article. Instead, I seek to critique utilizing the concept of abandonment to justify such an approach. There are a number of elements to this.
First, abandonment is one of those phrases that has different meanings depending on the context. When one describes a person ‘abandoning’ their property (or their tissue, blood or sperm sample for that matter), it is not always clear what is meant. It can mean, inter alia, the abandonment of all claims in respect of a thing, as appeared to be what was meant in the Nuffield report or be employed as a legal term of art to refer to ‘divesting abandonment’ a concept derived from property law, whereby an owner loses all ownership of his property if divesting abandonment is found to have occurred. Second, in property law there are specific requirements that must be met before divesting abandonment operates and an owner is deemed to have his ownership extinguished: There must be loss of de facto physical control, there must be an intention to abandon all rights in the property and there must be indifference as to who any subsequent owner might be. I contend that these requirements are often overlooked when discussing abandonment of human tissue, and, further, that if we are to examine these elements closely, it becomes apparent that many cases of purported abandonment of human tissue are more akin to voluntary transfer (also referred to as delivery). Incorrectly invoking abandonment obscures this, and also obscures the potential remedies available to a source of human tissue consequent on such a finding.
Third, I contend that is impossible to determine the role that the concept of abandonment might usefully play in relation to human tissue, when it is has not been conclusively determined where the original ownership of such material lies. I argue that this uncertainty may only be resolved by recognizing that limited property rights vest in the source of the material. Following on from this argument, I contend that the source of human tissue never has income rights to them, and thus such rights accrue as windfall wealth, not by virtue of their abandonment by their source, the concept here further confusing an already muddled area of law.
This article first sets out the differing meanings of the term abandonment and then examines the law relating to the property law concept of divesting abandonment, fleshing out is operation and requirements. Then, I examine how abandonment has been applied in relation to human tissue, critiquing such use in the Nuffield report and I outline the inappropriateness of using a line of American Jurisprudence as precedent for a general presumption of abandonment. I then set out the difficulty of utilizing abandonment in relation to human tissue, given the uncertainty as to who the original owner of such material is. I further contend that most cases of purported abandonment of hospital waste are more akin to voluntary transfers, as there is no break in seisin and no ‘roll of the dice’ by their source as to who the subsequent owner might be. I then discuss how income rights in human materials do not arise by virtue of their abandonment by the source, and that invoking abandonment obscures normative questions as to where such rights should initially vest. Finally, I argue that an alternative framework where limited property rights were granted to the source of human tissue need not lead to absurd consequences, and abandonment could be useful in such a framework, as there would be expressly identified rights to abandon.
Maddox concludes
There is a myriad of objections to invoking the concept of abandonment to separated human biological materials. Much of the difficulty comes from utilizing a property law concept, despite the failure (for the most part) of the law to recognize that the source of these materials has any property rights in them. Such materials are the source’s property in so far as their actions can be taken to have extinguished any ownership rights they had in them before being acquired by a hospital or research institute. However, when one inquires as to the ownership rights that the source abandoned, one is met with the objection that there is no property in the body. You can’t have your cake and eat it. While there is a failure to recognize the property rights of the source in the body, then it is the language of property that should be abandoned.
There is also merit in recognizing a limited form of property in separated body parts – mere property – that is an extension of the bodily use freedom principle. Absurd consequences need not result as such items would not be the same as chattels and would not be treated the same. Such an approach need not impose onerous costs on medical institutions in investigating ownership. Furthermore, most cases of purported abandonment in a medical context are more akin to a voluntary transfer, as there is no roll of the dice as to the identity of the next owner. The misdescription of such transfers as abandonment obscures questions about the agency and undue influence that are appropriately raised where a fiduciary personally benefits through the relationship from a gratuitous transfer of a valuable or useful res. Finally, it is more appropriate to determine entitlement to income rights in such materials by reference to nuanced normative questions concerning where ownership o