Bruce Baer Arnold

Disclosure ‘downunder’: misadventures in Australian genetic privacy law

Along with many jurisdictions, Australia is struggling with the unique issues raised by genetic information in the context of privacy laws and medical ethics. Although the consequences of disclosure of most private information are generally confined to individuals, disclosure of genetic information has far-reaching consequences, with a credible argument that genetic relatives have a right to know about potential medical conditions. In 2006, the Privacy Act was amended to permit disclosure of an individuals genetic information, without their consent, to genetic relatives, if it was to avoid or mitigate serious illness. Unfortunately, additional amendments required for operation of the disclosure amendment were overlooked. Public Interest Determinations (PIDs)—delegated legislation issued by the privacy commissioner—have, instead, been used to exempt healthcare providers from provisions which would otherwise make disclosure unlawful. This paper critiques the PIDs using documents obtained under the Freedom of Information Act—specifically the impact of both the PIDs and the disclosure amendment on patients and relatives—and confidentiality and the procedural validity of subordinate laws regulating medical privacy.

Direct to consumer genetic testing and the libertarian right to test

Loi recently proposed a libertarian right to direct to consumer genetic testing (DTCGT)— independent of autonomy or utility—reflecting Cohen’s work on self-ownership and Hohfeld’s model of jural relations. Cohen’s model of libertarianism dealt principally with self-ownership of the physical body. Although Loi adequately accounts for the physical properties of DNA, DNA is also an informational substrate, highly conserved within families. Information about the genome of relatives of the person undergoing testing may be extrapolated without requiring direct engagement with their personal physical copy of the genome, triggering rights and interests of relatives that may differ from the rights and interests of others, that is, individual consumers, testing providers and regulators. Loi argued that regulatory interference with exercise of the right required justification, whereas prima facie exercise of the right did not. Justification of regulatory interference could include ‘conflict with other people’s rights’, ‘aggressive’ use of the genome and ‘harming others’. Harms potentially experienced by relatives as a result of the individual’s exercise of a right to test include breach of genetic privacy, violation of their right to determine when, and if, they undertake genetic testing and discrimination. Such harms may justify regulatory intervention, in the event they are recognised; motives driving ‘aggressive’ use of the genome may also be relevant. Each of the above criteria requires clarification, as potential redundancies and tensions exist between them, with different implications affecting different groups of rights holders.

Sexual Harassment on Trial: The DJs Case

The ‘trial’ by media and lawyers in the 2010 dispute between Kristy Fraser-Kirk, leading retailer David Jones and former CEO Mark McInnes ended in an out of court settlement. The case was significant in many ways. The complainant took the unusual step of pleading her claim under the Trade Practices Act 1974 (Cth), Fair Trading Act 1987 (NSW) and the common law of contract, in addition to the sexual harassment provisions of the Sex Discrimination Act 1984 (Cth). Fraser-Kirk and her lawyers also actively engaged with the media, prompting David Jones to respond in kind. In this paper, we contrast how this particular trial by media and lawyers compares to the typical processes and outcomes for those whose complaints are not spotlighted in newspapers or the news. We critique the use of publicity in that dispute, showing that the plaintiff’s

Freedom of Speech under the Southern Cross—It Arrived and Departed by Sea?

37m claim grabbed media attention and fostered an out of court settlement that is inconsistent with traditional damages for workplace injury and awards regarding sexual discrimination. We find too that the size of the claim seemed to be highlighted more by the media than Fraser-Kirk’s resemblance to the ideal complainant identified in previous research (young, subordinate position, fresh complaint). Although it is a case worthy of analysis as exemplifying a trend in adversarial dispute resolution, we conclude that these tactics may not be useful or work for everyone.

Yours, mine, or ours: cautions about LRT

Abstract Australian offshore processing of asylum seekers and others seeking to enter the country without authorisation has attracted substantive criticism for abuses of their human rights, particularly their mandatory detention in Australian-funded facilities located in Nauru and Papua New Guinea. Official and corporate disregard of the rights of Australians in dealing with those people—contrary to the official accountability that underlies the liberal democratic state—has attracted less attention. This article explores the offshore processing regime through an examination of how legislation that criminalises disclosure of information about mandatory detention is conceptually inconsistent with the freedom of political communication implied under Australia’s Constitution, and expected by Australian citizens. That legislation treats asylum seeking as a matter of national security rather than humanitarian law. It conflicts with the ethical obligations of health practitioners and others, and with Australian expectations about effective mandatory reporting intended to prevent abuse of children and other vulnerable people. It affects Australian and other officials, contractors, care providers, advocates, and journalists who deal with asylum seekers inside and outside Australia. Accountability and minimisation of harms to non-citizens can—and should—be achieved through an independent oversight mechanism reporting directly to parliament.

Villains, Victims and Bystanders in Financial Crime

We appreciate the opportunity to present some further thoughts on the libertarian right to test (LRT) initially proposed by Loi, and hope these additional comments will further inform debate about this critical emerging technology. Loi’s important argument is that individuals possess a prima facie libertarian right to test their genomes and that regulatory intervention restricting genetic testing must be justified by those proposing regulation. Our position is that the onus of justifying regulation is reversed. The risk to others whose genomic information is shared with the individual is potentially significant enough to warrant prima facie regulatory intervention, including protection against misuse of genetic information derived from those tests, not just against the individual tested but also against those who for reasons of common familial ancestry are also susceptible to misuse. Testing an individual’s genome does not merely reveal information about that individual; it reveals, or renders reasonably inferable, information about the genomes of close relatives due to the commonality of genomic DNA within families. Such commonality is not merely ‘incidentally identical’: it is instead inevitable given the shared nature of genomic DNA sequences within families. ‘Incidental identity’ may appropriately describe the statistical possibility of two unrelated individuals in the human …

Autopsies, scans and cultural exceptionalism

White collar crime causes more pain to national economies, employees and investors than blue collar theft involving violence. Perhaps unsurprisingly, because that financial crime is often undertaken by well-educated, charming, softly spoken and socially adroit peers rather than by people who fit stereotypes about violent offenders, it has received less attention from psychologists and criminologists. This chapter considers the psychology of financial crime in terms of the criminals, their victims and bystanders such as government regulators and auditors who might be expected to prevent harms associated with figures such as Madoff, Maxwell and Stanford. It offers an overview of theories of what motivates the criminals, why some people are receptive to exploitation, and why systems of belief in gatekeeper institutions result in regulatory incapacity that inhibits effective risk identification and action to minimise that crime. The chapter highlights particular incidents since the 1880s, arguing that financial crime is a systemic problem that requires active management. It also argues that the psychology of financial crime is diverse, inducing caution about explanations purportedly enabling systematic prediction and prevention of large-scale offences.