In 2009, the 1959 Antarctic Treaty celebrates its fiftieth anniversary. Over its fifty-year existence the Treaty and the Antarctic Treaty System (ATS) built upon it, have promoted freedom of scientific research in Antarctica and the Southern Ocean. Despite the many successes of the Antarctic legal regime, there has been growing disquiet over the conduct by Japan, an Antarctic Treaty party, of its 'special permit' whaling program in the Southern Ocean. This program now has a lengthy history stretching back to the late 1980s, and has been undertaken purportedly in reliance on the 1946 International Convention on the Regulation of Whaling, which allows whaling for scientific purposes in limited circumstances. It has also been pursued on the assumption that the global whaling regime takes priority over the disciplines imposed by the regionally-focussed Antarctic Treaty System which seeks, among other things, to promote scientific research in Antarctica and to protect the Antarctic ecosystem. This article examines the interaction between the Antarctic and whaling regimes and argues that the main environmental text in the ATS, the 1991 Environmental Protocol, imposes obligations upon Japan to minimise or eliminate the environmental risks of its burgeoning Southern Ocean whaling program.

In light of the contemporary moves to transform the Australian university by subjecting it to the values of the market, the traditional idea of the university is in jeopardy. Freedom to teach, the unity of teaching and research, and academic selfgovernance are key factors associated with this idea. With its primarily professional and vocational focus, law has tended to be somewhat more ambivalent than the humanities about the freedoms associated with teaching and the pursuit of knowledge. Nevertheless, a liberal legal education is an ideal to which law schools have aspired over the last two or three decades. This article argues that, after a brief flirtation with a more humanistic legal education, the market is causing a swing back to a technocratic and doctrinal approach. The article draws on key proponents of the 'idea of the university', namely, Newman, Humboldt and Jaspers to consider what light these theorists might shed on the dilemma posed by the market imperative. It is suggested that a disregard for the presuppositions of the market could be disastrous for the future of the university law school.

This paper was prepared for the Honours Thesis course at the ANU College of Law, under the supervision of Matthew Zagor.

A relatively recent inclusion in refugee status determinations, the Internal Flight Alternative (IFA) is applied inconsistently both within and between jurisdictions. This has serious consequences for asylum-seeker's to whom the IFA may apply. IFA cases have significant similarities with the application of the so-called "ceased circumstances" cessation clauses in Article 1C(5) and (6) of the Refugees Convention, with voluntary repatriation of refugees, and in situations of internal displacement. This paper examines these similarities in relation to the stability and durability of proposed relocation areas, the standard of human rights in that area, and who the agent of protection is. The paper suggests that using the cessation clauses, voluntary repatriation guidelines, internal displacement guidelines, and existing principles in the Refugees Convention would provide a more integrated approach to application of the IFA.

Increasing academic and governmental attention is being directed towards improving legislative and human rights protections for the mentally ill and the mentally vulnerable in developing nations. Many states have made sincere attempts to discern such protections and enunciate them in legislation. A significant gap continues to exist here, however, between aspiration and implementation.

One strategy for improving implementation in this area, which has been little examined to date, involves the opportunities created by large-scale, collaborative research projects in developing nations. Such projects offer the potential for enhanced resources, attention and skills capable of promoting a domestic institutional culture of respect for legislative and human rights mental health protections.

This paper, as a case study, discusses the possibilities for enhancing mental health protections offered by a multi-national toxicology research project in rural Sri Lanka. The project is a Welcome Trust- funded research trial investigating treatment options for cases of self-poisoning involving organo-phosphate insecticides. It is known as the South Asian Clinical Toxicology Research Collaboration (SACTRCQ).

A common thread runs through current Australian debates over laws for emissions trading and renewable energy. It is a preoccupation with “least cost” abatement, the notion that only policies with the lowest short-run economy wide cost should be implemented, regardless of other considerations. The orthodoxy in Australian climate law and policy places great emphasis on asserting the superiority of market mechanisms. Both extended price support for renewable energy sources and direct regulation of emissions are viewed with suspicion.

Such discussion prompts us to ask whether there may be a strengthening rationale for more direct and “regulatory” approaches to carbon pollution, justified by reference to an alternative evaluation criterion – that of dependability. Perhaps our attention has strayed too far from the environmental effectiveness and timeliness of laws and policies, by emphasizing their cost. On the basis of this and other considerations, this Chapter asks whether the Australian faith in market mechanisms, and the promise to deliver solutions “at least cost”, conceals dangers inherent in oversimplifying the complexities of converting an entire economy away from reliance upon fossil fuels.

This Chapter reviews the arguments concerning the retention of renewable energy support laws alongside an ETS. It then proceeds to ask which type of renewable energy law is likely to prove superior, and why. In Australian debates over renewable energy law and policy, the same emphasis on “least cost” has led to a federal law based on tradeable green energy certificates (Renewable Energy (Electricity) Act 2000 (Cth)). Elements that such quantity-based renewables law has in common with carbon emissions trading are noted. This Chapter then considers the alternative of a price-based renewable energy support mechanism, very widely adopted in Europe, known as “feed-in laws”. Along the way it explores evidence and arguments that might lead us to question assumptions and beliefs about the superiority of tradeable permits and tradeable renewable energy certificates.

Although the Chapter touches upon the interactions between ETS’ and renewable energy laws, its core intention is to explore and investigate the implications of placing primacy on the objective of least cost abatement. Arising from that discussion some suggestions are made about the reasons for opposition to the alternative model of feed-in laws.

Julian Burnside’s collection of essays provides an insight into the mind of one of the Howard era’s most vocal public critics. Located within traditional liberal values and orthodox human rights principles, Burnside’s stories of human suffering and his Kantian appeals to human dignity are aimed at awakening our ‘imagination to understand the realities’ behind the political and legal spin of the times. Although sometimes loose with his legal language, his vision of a ‘just society’, his concerns for democracy, and his fury at the disempowerment and silencing of ‘voiceless minorities’ (notably asylum-seekers, indigenous peoples, and ‘terror’ suspects) remain persuasive and relevant to the new administrations in both Australia and the US.

In Re Herrington [2007] VSC 151 (King’s Case) the partner and family of an Aboriginal woman (diagnosed as being in a persistent vegetative state after an accident) sought an order from the Victorian Supreme Court that the decision of her treating doctors to withhold further medical treatment be opposed. The resultant judicial decision contains a very brief review of the now considerable case law in this area, does not mention the increasingly important role of clinical ethics committees in this context, or discuss the relevance of recently passed human rights legislation in Victoria. Given the statutory requirement for judicial reference to international human rights norms in jurisdictions such as Victoria and the Australian Capital Territory and their increasing importance in other developed nations, the authors highlight the need for the Australian judiciary to lift the quality of their jurisprudence in relation to end-of-life cases.

More than 1000 sunscreen products are marketed in Australia, and an increasing proportion (about one-third) incorporate engineered nanoparticles (ENPs). Defined as manufactured particles having one or more dimensions less than 100nm (0.00001cm), ENPs exploit the altered chemical reactivity and other changes that reduction to nanosize elicits.

ENPs in sunscreen, such as titanium dioxide (TiO2) and zinc oxides, constitute effective broad-spectrum ultraviolet radiation (UVR) blocking agents with enhanced cosmetic transparency. The Australian Therapeutic Goods Administration (TGA), in approving such products, has stated that "there is no evidence that sunscreens containing these materials pose any risk to the people using them". Similarly, authors of a recent article (written in collaboration with representatives of a cosmetic company) interpret the evidence as confirming that ENPs do not penetrate below the stratum corneum, or only in small amounts, producing limited cellular toxicity. Information on sunscreen packaging is not required to disclose the presence of ENPs.

A New South Wales Government committee has recommended that, for regulatory purposes, ENPs be considered new chemical entities that require increased safety data. Policymakers should increase funding for objective research in this area (such as that by Macquarie University and the flagship project in nanotechnology of the CSIRO [Commonwealth Science and Industry Research Organisation]). Until such safety data are available, the TGA should apply the "precautionary principle" and, at a minimum, increase packaging information about nanoparticles in sunscreens.

Historically, there have been intense conflicts over the ownership and exploitation of pharmaceutical drugs and diagnostic tests dealing with infectious diseases.

Throughout the 1980’s, there was much scientific, legal, and ethical debate about which scientific group should be credited with the discovery of the human immunodeficiency virus, and the invention of the blood test devised to detect antibodies to the virus. In May 1983, Luc Montagnier, Françoise Barré-Sinoussi, and other French scientists from the Pasteur Institute in Paris, published a paper in Science, detailing the discovery of a virus called lymphadenopathy (LAV). A scientific rival, Robert Gallo of the National Cancer Institute, identified the AIDS virus and published his findings in the May 1984 issue of Science. In May 1985, the United States Patent and Trademark Office awarded the American patent for the AIDS blood test to Gallo and the Department of Health and Human Services. In December 1985, the Institut Pasteur sued the Department of Health and Human Services, contending that the French were the first to identify the AIDS virus and to invent the antibody test, and that the American test was dependent upon the French research.

In March 1987, an agreement was brokered by President Ronald Reagan and French Prime Minister Jacques Chirac, which resulted in the Department of Health and Human Services and the Institut Pasteur sharing the patent rights to the blood test for AIDS. In 1992, the Federal Office of Research Integrity found that Gallo had committed scientific misconduct, by falsely reporting facts in his 1984 scientific paper. A subsequent investigation by the National Institutes of Health, the United States Congress, and the US attorney-general cleared Gallo of any wrongdoing.

In 1994, the United States government and French government renegotiated their agreement regarding the AIDS blood test patent, in order to make the distribution of royalties more equitable...

The dispute between Luc Montagnier and Robert Gallo was not an isolated case of scientific rivalry and patent races. It foreshadowed further patent conflicts over research in respect of HIV/AIDS. Michael Kirby, former Justice of the High Court of Australia diagnosed a clash between two distinct schools of philosophy - ‘scientists of the old school... working by serendipity with free sharing of knowledge and research’, and ‘those of the new school who saw the hope of progress as lying in huge investments in scientific experimentation.’ Indeed, the patent race between Robert Gallo and Luc Montagnier has been a precursor to broader trade disputes over access to essential medicines in the 1990s and 2000s. The dispute between Robert Gallo and Luc Montagnier captures in microcosm a number of themes of this book: the fierce competition for intellectual property rights; the clash between sovereign states over access to medicines; the pressing need to defend human rights, particularly the right to health; and the need for new incentives for research and development to combat infectious diseases as both an international and domestic issue.