Legal Studies Research Paper Series Vol 20, No. 7

Melbourne Law School published Volume 20 Number 7 of the University of Melbourne Law School Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Mark Taylor, Susan Wallace and Megan Prictor
United Kingdom: Transfers of Genomic Data to Third Countries (794)

In the United Kingdom (UK), transfer of genomic data to third countries is regulated by data protection legislation. This is a composite of domestic and European Union (EU) law, with EU law to be adopted as domestic law when Brexit takes place. In this paper we consider the content of data protection legislation and the likely impact of Brexit on transfers of genomic data from the UK to other countries. We examine the advice by regulators not to rely upon consent as a lawful basis for processing under data protection law, at least not when personal data are used for research purposes, and consider some of the other ways in which the research context can qualify an individual’s ability to exercise control over processing operations. We explain how the process of pseudonymization is to be understood in the context of transfer of genomic data to third parties, as well as how adequacy of data protection in a third country is to be determined in general terms. We conclude with reflections on the future direction of UK data protection law post Brexit with the reclassification of the UK itself as a third country.

Helen Anderson
Illegal Phoenix Activity: Practical Ways to Improve the Recovery of Tax (795)

Illegal phoenix activity generally involves closing one debt-laden company and continuing its business through another company minus those debts. Its propensity to cause losses of federal revenue has recently been highlighted by the Australian Government Treasury announcement of a suite of measures to combat it. However, there is already an extensive array of legislative and administrative tools that are available against illegal phoenixing. This article considers both the existing and proposed measures and makes some practical suggestions to improve the recovery of tax. However, solutions are not found exclusively in tax law and its administration. Since illegal phoenix activity is facilitated by the creation and demise of companies and their controllers are regulated by the Corporations Act 2001 (Cth), suggestions are made regarding corporate law and its administration by the Australian Securities and Investments Commission.

Jason NE Varuhas
Conceptualising the Principle(s) of Legality (796)

The principle of legality is a principle of statutory interpretation that is of increasing importance in common law jurisdictions in cases where statute affects basic rights or other common law norms. This article unpacks elements of the principle of legality, some of which are not apparent at the surface level of doctrine, and in so doing teases out key controversies raised by the principle. The article examines the triggers that enliven the principle of legality, and possible rationales for the principle. The article’s core claim is that there is not one principle of legality, but rather several different variants are evident in the case law. The article identifies and distinguishes three different conceptions: the classic principle of legality, the augmented principle of legality and the proactive principle of legality. The article’s focus is English and Australian law.

Megan Prictor, Harriet Teare and Jane Kaye
Equitable Participation in Biobanks: The Risks and Benefits of a 'Dynamic Consent" Approach (797)

Participation in biobanks tends to favor certain groups—white, middle-class, more highly-educated—often to the exclusion of others, such as indigenous people, the socially-disadvantaged and the culturally and linguistically diverse. Barriers to participation, which include age, location, cultural sensitivities around human tissue, and issues of literacy and language, can influence the diversity of samples found in biobanks. This has implications for the generalizability of research findings from biobanks being able to be translated into the clinic. Dynamic Consent, which is a digital decision-support tool, could improve participants’ recruitment to, and engagement with, biobanks over time and help to overcome some of the barriers to participation. However, there are also risks that it may deepen the “digital divide” by favoring those with knowledge and access to digital technologies, with the potential to decrease participant engagement in research. When applying a Dynamic Consent approach in biobanking, researchers should give particular attention to adaptations that can improve participant inclusivity, and evaluate the tool empirically, with a focus on equity-relevant outcome measures. This may help biobanks to fulfill their promise of enabling translational research that is relevant to all.

Tim Baxter, George Gilligan and Cosima McRae
Australian Climate Change Regulation and Political Math (798)

This paper traces the tumultuous decade of Australian climate politics from 2007 to 2016 when climate change policy emerged as a defining issue in Australian politics. It focuses on the interplay, that we believe is unique, or at least uniquely powerful, between Australian climate policy and the perceived legitimacy of its political leaders. This interplay has seen the Prime Ministership change five times in ten years with climate change being a key determinant in the rise, fall, or rise and fall of each of their careers. The paper also engages strongly with the raw political math of a period where Australia’s houses of parliament were nearly as often opposed on climate policy as they were in sync.

Dale Smith
What is Statutory Purpose? (799)

While there is considerable disagreement about what role statutory purpose should play in the interpretation of legislation, it is widely accepted that purpose has some role to play. This is despite the fact that there is little in the way of agreement about what statutory purpose is. In this paper, to be published in a festschrift in honour of Jeff Goldsworthy, I offer an account of what statutory purpose is. I begin by distinguishing three broad accounts of statutory purpose – the first of which understands it in terms of the intentions of certain legislators, or of the legislature as a whole; the second of which understands it in terms of the intentions that a reasonable legislator would have had if he or she had enacted the statute; and the third of which understands it in terms of the functional role the statute plays within the broader legal system. I contend that each of these accounts faces significant problems.

I then suggest a way of understanding the first approach – which is the approach preferred by Goldsworthy – that overcomes many of those problems. A particular difficulty facing the first approach is in distinguishing statutory purpose from legislative intent. I seek to do so by treating purpose as concerned with what Mark Greenberg has called the legislature’s legal intentions, and by treating legislative intent as concerned with the legislature’s communicative intentions. I then consider whether legal intentions should be understood as directed toward the norm(s) that the statute, or provision, is to contribute to the content of the law (‘norm-intentions’) or toward the state of affairs that the statute is to bring about (‘application-intentions’). While the former suggestion may appear attractive, I argue that we should understand legal intentions in terms of application-intentions. However, the legislature may have multiple application-intentions regarding a single statute, only some of which should count as part of the statute’s purpose. Thus, I go on to suggest some constraints on which of the legislature’s application-intentions count. I finish by addressing the possibility that different legislators have different application-intentions.