The conceptual and operational compatibility of data breach notification and information privacy laws

Mandatory data breach notification laws are a novel and potentially important legal instrument regarding organisational protection of personal information. These laws require organisations that have suffered a data breach involving personal information to notify those persons that may be affected, and potentially government authorities, about the breach. The Australian Law Reform Commission (ALRC) has proposed the creation of a mandatory data breach notification scheme, implemented via amendments to the Privacy Act 1988 (Cth). However, the conceptual differences between data breach notification law and information privacy law are such that it is questionable whether a data breach notification scheme can be solely implemented via an information privacy law. Accordingly, this thesis by publications investigated, through six journal articles, the extent to which data breach notification law was conceptually and operationally compatible with information privacy law. The assessment of compatibility began with the identification of key issues related to data breach notification law. The first article, Stakeholder Perspectives Regarding the Mandatory Notification of Australian Data Breaches started this stage of the research which concluded in the second article, The Mandatory Notification of Data Breaches: Issues Arising for Australian and EU Legal Developments (‘Mandatory Notification‘). A key issue that emerged was whether data breach notification was itself an information privacy issue. This notion guided the remaining research and focused attention towards the next stage of research, an examination of the conceptual and operational foundations of both laws. The second article, Mandatory Notification and the third article, Encryption Safe Harbours and Data Breach Notification Laws did so from the perspective of data breach notification law. The fourth article, The Conceptual Basis of Personal Information in Australian Privacy Law and the fifth article, Privacy Invasive Geo-Mashups: Privacy 2.0 and the Limits of First Generation Information Privacy Laws did so for information privacy law. The final article, Contextualizing the Tensions and Weaknesses of Information Privacy and Data Breach Notification Laws synthesised previous research findings within the framework of contextualisation, principally developed by Nissenbaum. The examination of conceptual and operational foundations revealed tensions between both laws and shared weaknesses within both laws. First, the distinction between sectoral and comprehensive information privacy legal regimes was important as it shaped the development of US data breach notification laws and their subsequent implementable scope in other jurisdictions. Second, the sectoral versus comprehensive distinction produced different emphases in relation to data breach notification thus leading to different forms of remedy. The prime example is the distinction between market-based initiatives found in US data breach notification laws compared to rights-based protections found in the EU and Australia. Third, both laws are predicated on the regulation of personal information exchange processes even though both laws regulate this process from different perspectives, namely, a context independent or context dependent approach. Fourth, both laws have limited notions of harm that is further constrained by restrictive accountability frameworks. The findings of the research suggest that data breach notification is more compatible with information privacy law in some respects than others. Apparent compatibilities clearly exist as both laws have an interest in the protection of personal information. However, this thesis revealed that ostensible similarities are founded on some significant differences. Data breach notification law is either a comprehensive facet to a sectoral approach or a sectoral adjunct to a comprehensive regime. However, whilst there are fundamental differences between both laws they are not so great to make them incompatible with each other. The similarities between both laws are sufficient to forge compatibilities but it is likely that the distinctions between them will produce anomalies particularly if both laws are applied from a perspective that negates contextualisation.

Defences in medical negligence : to what extent has tort law reform in Australia limited the liability of health professionals?

Tort law reform has resulted in legislation being passed by all Australian jurisdictions in the past decade implementing the recommendations contained in the Ipp Report. The report was in response to a perceived crisis in medical indemnity insurance. The objective was to restrict and limit liability in negligence actions. This paper will consider to what extent the reforms have impacted on the liability of health professionals in medical negligence actions. After an analysis of the legislation, it will be argued in this paper that while there has been some limitation and restriction, courts have generally interpreted the civil liability reforms in compliance with the common law. It has been the impact of statutory limits on the assessment of damages through thresholds and caps which has limited the liability of health professionals in medical negligence actions.

The Law and Governance of Water Resources : The Challenge of Sustainability

To achieve the sustainable use and development of water resources is a daunting challenge for both the global and local communities. It requires commitments by all groups within the international, national and local communities from their own particular, possibly conflicting, perspectives. Without a set of coherent legal arrangements designed to ensure effective governance of water resources, their sustainable use and development are unlikely to be achieved. This study looks at how the legal arrangements for managing water resources have evolved across the continents over hundreds of years; their relevance for contemporary society; how the norms of current international and national legal regimes are responding; and, most importantly, how legal rights and duties should be structured so as to achieve sustainability in the future.

Free software as a democratic principle

Software forms an important part of the interface between citizens and their government. An increasing amount of government functions are being performed, controlled, or delivered electronically. This software, like all language, is never value-neutral, but must, to some extent, reflect the values of the coder and proprietor. The move that many governments are making towards e-governance, and the increasing reliance that is being placed upon software in government, necessitates a rethinking of the relationships of power and control that are embodied in software.

Charity law, advocacy and the aid/watch decision : compatibility of charitable purposes and political objects — the view from Australia

Introduction In 1952 the Nathan report stated that: Some of the most valuable activities of voluntary societies consist, however, in the fact that they may be able to stand aside from and criticize State action or inaction, in the interests of the inarticulate man in the street. Some 60 years later it remained the case that if a voluntary society wanted to gain or retain charitable status then, contrary to the Nathan report, the one thing it could not do was set itself up with the purpose of criticizing State action or inaction. This legal position was adopted by the authorities in Australia with the Australian Taxation Office (ATO) noting in Taxation Ruling TR2005/21: 102. An institution or fund is not charitable if its purpose is advocating a political party or cause, attempting to change the law or government policy, or propagating or promoting a particular point of view. So, why, if it is such a valuable activity, have governments steadfastly refused to allow charities to have as their purpose the freedom to advocate in this way and how has this situation been affected by the recent High Court of Australia decision in Aid/Watch v Commissioner of Taxation? This article proposes to address such questions. Beginning with some background history, it explains that, initially, the current constraints did not apply. Then it looks at the nature of these constraints: how does the law define what constitutes the type of political activity that a charity must not undertake? What is the rationale for prohibition? How has the judiciary contributed to the development of the law in this area in recent years? This will lead into a consideration of the Aid/Watch case and the implications arising from the recent final decision. The article concludes by reflecting on what has changed and why the view on this contentious matter now looks different from Australia.

Section 64 of the Property Law Act 1974 (Qld) and the reluctant buyer

The decision of the Court of Appeal in Dunworth v Mirvac Qld Pty Ltd [2011] QCA 200 arose from unusual circumstances associated with the flood in Brisbane earlier this year. Maris Dunworth (‘the buyer’) agreed to purchase a ground floor residential apartment located beside the Brisbane River at Tennyson from Mirvac Queensland Pty Ltd (‘Mirvac’). The original date for completion was 12 May 2009. In earlier proceedings, the buyer had alleged that she had been induced to purchase the apartment by false, misleading and deceptive representations. This claim was dismissed and an order for specific performance was made with a new completion date of 8 February 2011...

Engaging law students to promote psychological health

Recent empirical evidence suggests that concern for the psychological health of law students is well justified. Traditionally, the legal curriculum has focused on the provision of substantive legal doctrinal knowledge. This approach has not always engaged students positively with their learning of law. This article considers some strategies that can be adopted by Law Faculties to better engage students with their legal education in order to promote their psychological health. These strategies are: ensuring that active learning occurs in lectures, demonstrating concern for students and their learning and skillful management of student expectations and the learning environment. Further, some self-help strategies that students can adopt for themselves are discussed. Combined, these strategies will enable students to engage more positively with their legal education.

National Environmental Law Review Issue 2011: 3, Editorial: Federal Developments

Clean Energy Agreement of the MPCCC On 10 July 2011, details of the Multi-Party Climate Change Committee’s Clean Energy Agreement for implementing a carbon price were released. This included an agreed package of measures that the Committee considered would enable Australia to meet its emissions reduction targets in an environmentally and economically efficient way. A copy of the agreement can be found on the website of the Department of Climate Change and Energy Efficiency...

Physicality in Australian Patent Law

It is generally understood that the patent system exists to encourage the conception and disclosure of new and useful inventions embodied in machines and other physical devices, along with new methods that physically transform matter from one state to another. What is not well understood is whether, and to what extent, the patent system is to encourage and protect the conception and disclosure of inventions that are non-physical methods – namely those that do not result in a physical transformation of matter. This issue was considered in Grant v Commissioner of Patents. In that case the Full Court of the Federal Court of Australia held that an invention must involve a physical effect or transformation to be patentable subject matter. In doing so, it introduced a physicality requirement into Australian law. What this article seeks to establish is whether the court’s decision is consistent with the case law on point. It does so by examining the key common law cases that followed the High Court’s watershed decision in National Research Development Corporation v Commissioner of Patents, the undisputed authoritative statement of principle in regard to the patentable subject matter standard in Australia. This is done with a view to determining whether there is anything in those cases that supports the view that the Australian patentable subject matter test contains a physicality requirement.

Using cost-effective multimedia to create engaging learning experiences in law and other disciplines

This is the final report of an Australian Learning and Teaching Council Teaching Fellowship which addressed the needs of two separate groups of learners: (1) final year law students studying ethics and (2) law academics and other interested educators in higher education wishing to use information and communication technologies (ICT) to create engaging learning environments for their students but lacking the capacity to do so. The Fellowship resulted in final year law students being infused with an improved appreciation of ethical practice than they receive from traditional lecture/tutorial means by the development of an integrated program of blended learning including an online program entitled "Entry into Valhalla". This "ethics capstone‟ utilises multimedia produced using cost effective resources (including the "Second Life" virtual environment) to create engaging, contextualised learning experiences. The Fellowship also constructed the knowledge of producing cost-effective multimedia projects in other law academics and other educators in higher education by staff development activities comprising workshops, conference presentations and an interactive website using the "Entry into Valhalla" program as a case study exemplar.

Civil applications in the Magistrates Court are often set down for hearing by a judicial registrar, but there is now some uncertainty on the limitation of this practice

The decision of the District Court of Queensland in Mark Treherne & Associates -v- Murray David Hopkins [2010] QDC 36 will have particular relevance for early career lawyers. This decision raises questions about the limits of the jurisdiction of judicial registrars in the Magistrates Court.

Developing a transition pedagogy : intentional curriculum design in first and final year law programs

This chapter will first consider the rationale for a transition pedagogy for first and final year law students. It then discusses the elements of a transition pedagogy for both years, noting the synergies and differences between programs designed to assist transition into and out of a law degree. In doing so, the authors attempt to explore the extent to which the first year curriculum principles identified by Sally Kift under an Australian Learning and Teaching Council (ALTC) Senior Fellowship may also be applied to the final year university experience. During the course of the discussion, examples are drawn from universities and Law Schools in Australia and internationally which seek to address these imperatives...