Reference Pricing for Pharmaceuticals: Is the Australia - United States Free Trade Agreement Affecting Australia’s Pharmaceutical Benefits Scheme?
Amendments to the National Health Act 1953 (Cwlth) were legislated by the Australian federal government in 2007 with minimal public debate. The National Health Amendment (Pharmaceutical Benefits Scheme) Act 2007 includes several changes that will limit reference pricing under the Australian Pharmaceutical Benefits Scheme (PBS). Here, I argue that these amendments were influenced by the Australia–United States Free Trade Agreement (AUSFTA) particularly the Medicines Working Group established under Annex 2C of that agreement. I make the case that such amendments could have adverse consequences, involving the erosion of scientific objectivity and equity in PBS processes.
One concern is that the amendments might lead to policy choice being delegated to technical experts in finance, or working groups with private interests, rather than being made part of a systematic public debate about the kind of health care system all Australians want to have, and the trade-offs they are prepared to make against strategic objectives of trade or international public policy.
Research theme: Health, Law and Bioethics
Personal Property Securities Reform
Author(s): James Popple
The Australian Government, together with the governments of the Australian states and territories, is undertaking reform of the law of personal property securities.
PPS law in Australia is currently very complex, and varies according to: the location and nature of the collateral; the nature of the security interest; and the legal personality of the debtor.
The objectives of PPS reform are to increase legal certainty by increasing consistency and reducing complexity, which should lead to reduced costs.
At present, the application of PPS law to a transaction generally depends on the legal form of that transaction. The new PPS system will be based on a functional approach, looking to the substance of a transaction.
The intention is that, subject to countervailing policy considerations, all security interests will be treated the same as far as is possible, with all PPS interests registered in one place, and subject to one Act. Several significant policy issues, which will need to be resolved during the development of the new PPS legislation, are identified.
Research theme: Military & Security Law
Regulatory Design for Scientific Uncertainty: Acknowledging the Diversity of Approaches in Environmental Regulation and Public Administration
Author(s): Judith Jones
Environmental regulatory design addresses scientific uncertainty through a range of regulatory design tools. The seven approaches identified and considered in this article are termed (1) the acknowledgement of scientific uncertainty (2) the burden shifting approach (3) the sound science approach (4) the consequences approach (5) the consensus approach (6) the estimation approach and (7) the adaptive management approach. Analysis of some common environmental legislative frameworks suggests that, rather than occurring in isolation, these seven approaches are frequently incorporated into legislative regimes in a multitude of combinations. The article also highlights the implications of expressly embedding a precautionary approach within pre-existing environmental regulatory frameworks, such as has occurred within Australian environmental regimes. Finally, the article explores the advantages and disadvantages of each approach and the various circumstances that favour the adoption of a particular regulatory approach to scientific uncertainty. In doing so, it suggests an agenda for future empirical research on approaches to regulatory design for scientific uncertainty.
Research theme: Legal History and Ethnology
Environmental Conflict Resolution: Relational and Environmental Attentiveness as Measures of Success
Author(s): Tony Foley
When evaluating the success of environmental conflict resolution (ECR), the use of traditional measures of success, such as agreement counting and participant satisfaction surveys provide an incomplete picture. This article proposes two measures to evaluate ECR in terms of both process and outcome: Is the process transformative of the participants? Is the process designed to be attentive to environmental outcomes?
Research theme: Environmental Law
Looking Beneath the Surface: The Impact of Psychology on Corporate Decision Making
Author(s): Kath Hall
This article discusses some of the most common ways in which business decisions are affected by cognitive biases. It focuses on the individual level of decision making and discusses how biases are deeply entrenched in the way many decisions are made. It also discusses how flaws in decision making can escalate when executives are under pressure, over-confident or part of a group.
The article argues that we need to develop a better understanding of the effect of cognitive biases on executive decision making. Whilst research suggests that many aspects of our decision making processes operate outside of our conscious awareness, it is suggested that these flaws may be easier to monitor and control when we are aware of their potential impact on corporate decisions.
Research theme: Regulatory Law and Policy
Council Officer Prosecuted for Biodiversity Offences: Garrett v. Freeman
Author(s): James Prest
Analysis of recent series of litigation involving questions of potential criminal liability for environmental offences under New South Wales law of damage to the habitat of threatened species. Prosecution sought to apply the criminal law to the actions of a public official, a local government public works officer.
Legal Regulation of Religious Giving
Author(s): Pauline Ridge
The article considers the legal regulation of religious giving in nineteenth century England. Three leading cases, decided between 1871 and 1887, are discussed. Each case involves a woman of Roman Catholic, or Roman Catholic-like persuasion, making a substantial testamentary or inter vivos gift to the religious body with which she is associated. It is argued that whether the gift was construed as an outright gift or a trust for purposes was crucial to its enforceability. Two key themes are considered: autonomy concerns in relation to religious giving (including reasons why these concerns were more pressing with respect to inter vivos gifts) and the different levels of legal recognition of religious giving. The law during this period took an active role both in managing the relationship of religious groups with the state and in controlling the activities of religious groups; conversely, suppressed religious groups managed to operate around, and outside, the law.
The High Court's Conception of Discrimination: Origins, Applications, and Implications
Author(s): Amelia Simpson
In constitutional settings, the High Court has grown attached to a particular conception of discrimination that is notable for its abstractedness and purported universality. This article explores that conception, tracing its evolution and its permeation of the Court's constitutional jurisprudence. It argues that this 'universal' conception of discrimination, while it does mandate certain limited content, cannot provide guidance upon some of the most significant questions confronting judges when shaping constitutional non-discrimination rules.
Research theme: Constitutional Law and Theory
Sedition, Security and Human Rights: 'Unbalanced' Law Reform in the 'War on Terror'
Author(s): James Stellios
This article provides a review of the history, structure and form of the law of sedition, focusing on the new provisions inserted into the Criminal Code Act 1995 (Cth) in 2005 as part of a wider counter-terrorism package. A short historical review of sedition in Australia is followed by a critical analysis of the new offences, which explores the constitutional and human rights implications of these new offences. Critical attention is given to the process of law reform that seeks to 'balance' security and human rights, focusing on the recommendations of the Australian Law Reform Commission which emerged from the retrospective review of the 2005 reforms. Our conclusion is that the 'balanced' model endorsed by the Australian Law Reform Commission produces incoherence in relation to the definition of offences and 'good faith' defences. In particular, incoherence is produced by definitions of offences that are over-inclusive or under-inclusive depending on the rationale (security or human rights) which is accorded priority.
Uncertainty and Exclusion: Detention of Aliens and the High Court
Author(s): Matthew Zagor
In a series of judgments in late 2004, the High Court found that the Migration Act 1958 (Cth) unambiguously provides for the indefinite detention of unlawful non-citizens, and that such a law is constitutionally valid. The cases are significant not only for reflecting different approaches to statutory construction, the aliens power and the potential protections offered by Ch III - the manifest issues before the Court - but for the broader perspectives of Australia's constitutional arrangements and the control of public power. With specific reference to the judgments in Al-Kateb and Re Woolley, this paper argues that the majority were inherently informed by a largely unstated assumption about the Court's constitutional role that relies upon an unprecedented deference to the other branches of government, as well as an attitude towards aliens as a category - reflected in the rhetoric of control, exclusion and unlawfulness - that echoes a regrettable part of Australia's constitutional inheritance. By neglecting to state or address these assumptions upfront, and by failing to present a coherent test to stand in the stead of the protection which earlier case law had promised, the majority's reasoning loses both its moral authority and legal coherency.
Regulating Telecommunications Interception and Access in the 21st Century: Technological Evolution or Legal Revolution?
Author(s): James Stellios
This article reviews the expansion of federal telecommunications interception powers, focusing on the watershed reforms enacted in 2006. The new statutory frameworks governing interception of "live" and "stored communications" are compared and contrasted, with a particular focus on their impact on human rights such as privacy and the fair trial. The article identifies significant regulatory loopholes and deficiencies in this new system, casting doubt on the usefulness of adopting a "balancing" model to guide either macro-level policy development or micro-level decision-making relating to individual warrants.
Chair of the Citizenship Council
Author(s): Kim Rubenstein
This chapter appears in a collection honouring Sir Ninian Stephen, former Australian High Court Judge and Governor General. The chapter examines Sir Ninian's contributions to citizenship law in both a domestic and international context. Indeed, the chapter straddles both aspects of this book's division: Sir Ninian's domestic and international contributions. It begins by concentrating upon his Australian contributions in this field and then moves on to reflect in particular on his judgment in the International Criminal Tribunal for the former Yugoslavia (ICTY) in the case of Proscecutor v Dusko Tadic, which had important statements about nationality in an international humanitarian law context. As I too am interested in both jurisdictions, the chapter reflects upon the contrasts and similarities of Sir Ninian's contribution to those different jurisdictions and what they may tell us about Sir Ninian's framework for thinking about citizenship. In doing so, it is my contention that Sir Ninian is a role model to all seeking to be cosmopolitan citizens in an ever increasingly connected world.
Using Federalism to Protect Political Communication: Implications from Federal Representative Government
Author(s): James Stellios
The recognition of the implied freedom of political communication has been the subject of much controversy. Although a unanimous Court in Lange v Australian Broadcasting Corporation identified the textual basis for the implication, there continues to be significant uncertainty as to the nature and scope of the freedom. This article seeks to provide an alternative constitutional foundation for protecting political communication, which focuses on the way in which representative government has been accommodated within the federal structure of government. In doing so, it attempts to provide a firmer constitutional foundation for the protection of political communication.
Advancing Citizenship: The Legal Armory and its Limits
Author(s): Kim Rubenstein
This Article considers the use of litigation as one mechanism to make citizenship more inclusive. It examines three Australian High Court decisions on citizenship in which the author was also counsel. While addressing the promotion of inclusive approaches to citizenship as a legal status, the Article argues that advocates must consider a range of avenues for advancing their clients' claims. In doing so, the Article also presents a normative critique of citizenship legislation as not paying enough attention to the individual's affiliation with Australia. The cases highlight rules that overlook certain individuals without giving sufficient consideration to their special circumstances, demonstrating that a person's identity is not always reflected in law.
Reintroducing a Criminal Jury in Japan: Reform Lessons for Us All?
Author(s): Mark Nolan
This paper overviews Chief Justice Spigelman's suggestion that NSW criminal jurors consult sentencing judges and give views on sentence before those judges pass sentence. This form of lay participation in criminal justice is compared and contrasted to the new Japanese mixed court system (the saiban-in seido, operational by May 2009).
Judicial Selection: Trust and Reform
Author(s): Ron Levy
The Ad Hoc Committee to Review a Nominee for the Supreme Court of Canada held unprecedented public hearings in advance of the appointment of Justice Marshall Rothstein to the Court. The author assesses the work of the Committee using the interdisciplinary literature on assorted institutional design models and their effects on public trust and decision-maker trustworthiness. This literature can inform efforts to ensure that judicial selectors select, or aspire to select, new justices impartially. The Committee adopted a comparatively ineffective and risky model of democratization that relies on accountability tools such as political party dýtente. Past examples suggest that an alternative approach is preferable: Reforms should focus not on increasing accountability for selections but on building trust and trustworthiness in selections. The author offers specific recommendations to enhance trust and trustworthiness in the selection process using a permanent Supreme Court of Canada appointments body. The body proposed can enable robust rather than token levels of public involvement while preserving or broadening judicial independence.
The Class Action as Sheriff: Private Law Enforcement and Remedial Roulette
Author(s): Peta Spender
This essay will explore the effect of developments in class action law and practice upon remedial law, and investigate the state of health of the compensation principle.
The compensation principle requires that plaintiffs should as nearly as possible be awarded a sum of money that will place them in the same position as if they had not suffered a wrong. The principle has occupied a central position in modern private law to provide standing to plaintiffs and to limit the powers of courts. Yet commentators such as Berryman argue that the compensation principle is in decline and suffering a death by a thousand cuts. Some of the deepest cuts have been inflicted by the modern class action.
This argument will be examined by reference to class actions in Australia, Canada, and the US, using the vitamins antitrust litigation in those jurisdictions as a case study.
The overall hypothesis is that whilst the compensatory principle is being assailed by the calls for the class action to deter corporate misconduct, the principle still acts as a moral compass. Corrective justice has not entirely yielded to instrumentalism, but the current autonomous, individualistic, and substantive law model of corrective justice under private law needs to adjust to group procedural justice as practised in law firms and in the courts.
Litigating Questions of Quality
Author(s): Greg Weeks
There are some grounds of judicial review which inherently lead the court to consider questions of the quality of the decision-maker’s decision. The most prominent of these are review for Wednesbury unreasonableness and S20/2002 irrationality or illogicality. These grounds of review require careful application to avoid reviewing the merits of a case. The Australian Retailers case demonstrates another difficulty with quality review – that of what detail should be allowed in the evidence both supporting and rebutting the alleged error of law. This article provides a brief examination of the nature of quality review, followed by an examination of the approach used by Weinberg J in Australian Retailers. The article also suggests a method by which judicial review for issues of quality can serve its intended purpose – to catch rare and absurd decisions – without becoming unduly time-consuming or, worse, degenerating into merits review.
Research theme: Administrative Law
Here I Am: Illuminating and Delimiting Responsibility
Author(s): Desmond Manderson
The ethics of Emmanuel Levinas and the law of negligence are in many ways surprisingly well-suited. Levinas offers a sustained meditation on the relationship of ethics, responsibility and justice, and he does so using precisely the language of the duty of care, of neighbourhood, and of proximity. ‘Perhaps because of current moral maxims in which the word neighbour occurs, we have ceased to be surprised by all that is involved in proximity and approach.’ Here then is a philosopher, largely unknown to doctrinal legal theory, who at last speaks the language of torts. This paper seeks to explore the connection between Levinas and doctrines of care and responsibility in the common law, struggling in particular with the relationship between ethics and law or politics, between the unlimited responsibility canvassed by Levinas and the necessity for limitation and definition embedded in legal forms.
Research theme: Legal Theory
Commonwealth Power Over Infrastructure: Constitutional Tools for National Economic Regulation
Author(s): Fiona Wheeler
This paper considers the extent of the Commonwealth’s power under the Australian Constitution to make laws regulating economic infrastructure such as transport, communications and energy. In this context, the external affairs power in s 51(xxix) of the Constitution, the communications power in s 51(v), the corporations power in s 51(xx) and the interstate and overseas trade and commerce power in s 51(i) are all addressed. The High Court’s strongly nationalist approach to constitutional construction, most recently affirmed in 2006 in its expansive reading of the corporations power in the Work Choices Case, means that the Commonwealth has very substantial, though not unlimited, authority to deal with infrastructure regulation. While the prospect of a wider reading of the interstate and overseas trade and commerce power may further augment Commonwealth authority in this area, gaps in Commonwealth regulatory power are still likely to remain.
Research theme: Constitutional Law and Theory