Race against time: The export of essential medicines to Rwanda

This article considers the significance of the first export of essential medicines under the WTO General Council Decision 2003. In July 2007, Rwanda became the first country to provide a notification under the WTO General Council Decision 2003 of its intent to import a fixed-dose, triple combination HIV/AIDS drug manufactured by the Canadian generic pharmaceuticalmanufacturer Apotex, Inc. In September 2007, Apotex was granted the first compulsory licence application under Canada's Access to Medicines Regime. This article considers the convoluted and protracted negotiations between the Government of Rwanda, Apotex and three patent holders, GlaxoSmithKline, Boehringer Ingleheim Canada and Shire BioChemical, Inc. It questions the efficiency of this process. This article considers the review of the Jean Chretien Pledge to Africa Act 2004 (Canada). It is critical of the refusal of the Conservative Government of Canada to make any amendments to the legislation to improve the cost-effective delivery of essential medicines. This article queries the proposed Hong Kong Amendment to the TRIPS Agreement 1994, given the concerns of the Africa Group. It is submitted that it is undesirable to codify the WTO General Council Decision 2003, given its failure to provide a speedy, efficient and cost-effective delivery of essential medicines.

Blame it on Rio: Biodiscovery, native title, and traditional knowledge

This article examines the legal responses to protect traditional knowledge of biodiversity in the wake of the Rio Convention on Biological Diversity. It considers the relative merits of the inter-locking regimes of contract law, environmental law, intellectual property law, and native title law. Part 1 considers the natural drug discovery industry in Australia. In particular, it looks at the operations of Amrad, Astra Zeneca R & D, and the Australian Institute of Marine Science. This section examines the key features of the draft regulations proposed under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) - model contracts, informed consent, benefit-sharing, and ministerial discretion. The use of Indigenous Land Use Agreements in the context of access to genetic resources is also explored. Part 2 considers the role played by native title law in dealing with tangible and intangible property interests. The High Court decision in Western Australia v Ward considers the relationship between native title rights and cultural knowledge. The Federal Court case of Neowarra v Western Australia provides an intriguing gloss on this High Court decision. Part 3 looks at whether traditional knowledge of biodiversity can be protected under intellectual property law. It focuses upon reforms such as Senator Aden Ridgeway's proposed amendments to the Plant Breeder's Rights Act 1994 (Cth), and the push to make disclosure of origin a requirement of patent law.

Free Mickey! The copyright term and the public domain

In a victory for corporate control of cultural heritage, the Supreme Court of the United States has rejected a constitutional challenge to the Sonny Bono Copyright Term Extension Act 1998 (US) by a majority of seven to two.

The High Court and the Marlboro Man: The plain packaging decision

The High Court of Australia’s ruling on the plain packaging of tobacco products is one of the great constitutional cases of our age. The ruling will resonate throughout the world - as other countries will undoubtedly seek to emulate Australia’s plain packaging regime.

Collective land system in China: Congenital flaw or acquired irrational weakness?

With the level of urbanization in China now exceeding 50%, its collective rural land system is under increasing pressure, creating conditions in which there is increasing conflict between the efficient use of land for agricultural purposes and its retention as security for the rural population. This paper first examines the fundamental nature of China's collective land system by analyzing the collectivization history of China, then provides a comprehensive appraisal of the strengths and weaknesses of the collective land system's role in history and the challenges it faces in modern times. The main changes needed for the current collective system are identified as (1) the establishment of a new transfer mechanism for potential collective construction land, (2) the completion of land rights verification and consolidation work, and (3) the endowment of villagers with more rights to enjoy the distribution of land incremental value. The paper's main contribution is to question the relevance of collective rural land system in contemporary China, where a shift is now taking place from one of pure economic development to one involving more social concerns, and propose potential viable amendments to integrate the need for both perspectives.

A road safety strategy for Norfolk Island, an Australian external territory

Norfolk Island is an Australian external territory in Oceania. The significant road safety reforms in Australia from the 1970s onward bypassed the island, and most road safety ‘silver bullets’ adopted in other Australian jurisdictions were not introduced. While legislative amendments in 2010 introduced mandatory seat belt wearing for vehicle occupants on Norfolk Island, other critical issues face the community including drink driving by residents and visitors, occupant protection for vehicle passengers, and the provision of a more protective road environment. The release of the first Norfolk Island road safety strategy 2014-2016 proposed, inter alia: • a lower BAC of 0.05 and the introduction of compulsory driver alcohol and drug testing by police; • targeted enforcement of occupant protection for vehicle passengers, particularly for passengers riding on vehicle tray backs; • education interventions to challenge values held by some members of the community that support unsafe road use; • ensuring that driver information, training and testing is adequate for all drivers; • identification and rectification of hazardous roadside infrastructure, particularly barrier protection at “high drop locations” within the road network; and • developing a specification for vehicle standards for vehicles imported into Norfolk Island. Norfolk Island is engaging in a process of integration with the Australian community, and wider issues relating to funding and resources have impacted on the implementation of the road safety strategy. The response to the strategy will be discussed, particularly in terms of current attempts to address drink driving and the provision of a safer road environment.

Accountability 30 years on: Insurance Contracts Act Reform

The Insurance Contracts Act 1984 (Cth) since inception has effected major reform to the law in this field. One of Australia’s most frequently cited pieces of legislation, it has had a major impact upon the law and practice of insurance. Given the importance of insurance to domestic and commercial activity and its pivotal position as a mechanism to manage exposure to risk, it is not surprising that this legislation has been the subject of extensive analysis in the courts and in legal literature. Furthermore the Act has, arising out of a 2009 review, been significantly amended by the Insurance Contracts Amendment Act 2013 (Cth). The principal amendments introduced are: two-fold: the Insurance Contracts Act 1984 (Cth) has been amended so that a failure to comply with the duty of good faith is now a breach of the Act; and disclosure and misrepresentation provisions under the Insurance Contracts Act 1984 (Cth) are amended and clarified.

‘The door creaked shut’: The new breach of bail offence for youth in Queensland

As part of the 2014 amendments to the Youth Justice Act 1992 (Qld) the previous Queensland government introduced a new breach of bail offence and a reverse onus provision in relation to the new offence. Also included in the raft of amendments was a provision removing the internationally accepted principle that, in relation to young offenders, detention should be used as ‘a last resort’. This article argues that these changes are likely to increase the entrenchment of young people within the criminal justice system.

Beyond chemical dependency for managing plant-parasitic nematodes: Examples from the banana, pineapple and vegetable industries of tropical and subtropical Australia

Plant-parasitic nematodes are important pests of horticultural crops grown in tropical and subtropical regions of Australia. Burrowing nematode (Radopholus similis) is a major impediment to banana production and root-knot nematodes (predominantly Meloidogyne javanica and M. incognita) cause problems on pineapple and a range of annual vegetables, including tomato, capsicum, zucchini, watermelon, rockmelon, potato and sweet potato. In the early 1990s, nematode control in these industries was largely achieved with chemicals, with methyl bromide widely used on some subtropical vegetable crops, ethylene dibromide applied routinely to pineapples and non-volatile nematicides such as fenamiphos applied up to four times a year in banana plantations. This paper discusses the research and extension work done over the last 15 years to introduce an integrated pest management approach to nematode control in tropical and subtropical horticulture. It then discusses various components of current integrated pest management programs, including crop rotation, nematode monitoring, clean planting material, organic amendments, farming systems to enhance biological suppression of nematodes and judicious use of nematicides. Finally, options for improving current management practices are considered.

Moments of flux in intermediary liability for copyright infringement

This chapter provides an overview of a recent shift in regulatory strategies to address copyright infringement toward enlisting the assistance of general purpose Internet Service Providers. In Australia, the High Court held in 2012 that iiNet, a general purpose ISP, had no legal duty to police what its subscribers did with their internet connections. We provide an overview of three recent developments in Australian copyright law since that decision that demonstrate an emerging shift in the way that obligations are imposed on ISPs to govern the actions of their users without relying on secondary liability. The first is a new privately negotiated industry code that introduces a 'graduated response' system that requires ISPs to pass on warnings to subscribers who receive allegations of infringement. The second involves a recent series of Federal Court cases where rightsholders made a partially successful application to require ISPs to hand over the identifying details of subscribers whose households are alleged to have infringed copyright. The third is a new legislative scheme that will require ISPs to block access to foreign websites that 'facilitate' infringement. We argue that these shifts represent a greater sophistication in approaches to enrolling general purpose intermediaries in the regulatory project. We also suggest that these shifts represent a potentially disturbing trend towards enforcement of copyright law in a way that does not provide strong safeguards for the legitimate constitutional due process interests of users. We conclude with a call for greater attention and research to better understand how intermediaries make decisions when governing the conduct of users, how those decisions may be influenced by both state and non-state actors, and how the rights of individuals to due process can be adequately protected.

Impacts of pesticides and fertilisers on soil

The effects of inorganic amendments (fertilisers and pesticides) on soil biota that are reported in the scientific literature are, to say the least, variable. Though there is clear evidence that certain products can have significant impacts, the effects can be positive or negative. This is not surprising when you consider the number of organisms and amount of different functional groups, the number of products and various rates at which they could be applied, the methods of application and the environmental differences that occur in soil at a micro scale (within centimetres) in a paddock, let alone between paddocks, farms, catchments, regions etc. It therefore becomes extremely difficult to draw definitive conclusions from the reported results in order to summarise the impacts of these inputs. Several research trials and review papers have been published on this subject and most similarly conclude that the implications of many of the effects are still uncertain.

Copyright, fair use and the Australian Constitution

There has been much debate over recent years about whether Australian copyright law should adopt a fair use doctrine. In this chapter we argue by pointing to the historical record that the incorporation of the term 'copyrights' in the Australian Constitution embeds a notion of balance and fair use in Australian law and that this should be taken into account when interpreting the Australian Copyright Act 1968. English case law in the 18th and 19th centuries developed a principle that copyright infringement did not occur where a person had made a fair use of a work. Fair use was generally established where the defendant had made a productive use that did more than alter the original work for the purpose of evading liability, and where the defendant had made an original contribution to the resulting work. Additionally, fairness was shown by a use that did not supersede or prejudice the market for the original work. At the time of including the copyright power in the Constitution, the UK Parliament’s understanding of “copyrights” included the notion of fair use as it had been developed in U.K. precedent. In this chapter we argue that the work “copyrights” in the Australia Constitution takes its definition from copyright in 1900 and as it has evolved since. Importantly, the word “copyrights” is infused with a particular meaning that incorporates the principle of copyright balance. The constitutional notion of copyright, therefore, is not that of an unlimited power to prevent all copying. Rather, copyright distinguishes between infringing copying and non-infringing copying and grants to the copyright owner only the power to control the former. Non-infringing copying includes well-accepted limitations on the copyright owner’s rights, including the copying of ideas, the copying of public domain works and the copying of insubstantial parts of copyrighted works. In this chapter we argue that non-infringing copying also includes copying to make a fair use of a work. The sections that distinguish infringing copying from non-infringing copying in the Copyright Act 1968 are sections 36(1) and 101(1), which define infringement as the doing, without licence, of an “act comprised in the copyright”. An infringing copy is an act comprised the copyright, whereas a non-infringing copy is not. We argue that space for fair uses of copyrighted works is built into the Copyright Act 1968 through these sections, because a fair use will not produce an infringing copy and so is not an act comprised in the copyright.

Application of phytotoxicity data to a new Australian soil quality guideline framework for biosolids

To protect terrestrial ecosystems and humans from contaminants many countries and jurisdictions have developed soil quality guidelines (SQGs). This study proposes a new framework to derive SQGs and guidelines for amended soils and uses a case study based on phytotoxicity data of copper (Cu) and zinc (Zn) from field studies to illustrate how the framework could be applied. The proposed framework uses normalisation relationships to account for the effects of soil properties on toxicity data followed by a species sensitivity distribution (SSD) method to calculate a soil added contaminant limit (soil ACL) for a standard soil. The normalisation equations are then used to calculate soil ACLs for other soils. A soil amendment availability factor (SAAF) is then calculated as the toxicity and bioavailability of pure contaminants and contaminants in amendments can be different. The SAAF is used to modify soil ACLs to ACLs for amended soils. The framework was then used to calculate soil ACLs for copper (Cu) and zinc (Zn). For soils with pH of 4-8 and OC content of 1-6%, the ACLs range from 8 mg/kg to 970 mg/kg added Cu. The SAAF for Cu was pH dependant and varied from 1.44 at pH 4 to 2.15 at pH 8. For soils with pH of 4-8 and OC content of 1-6%, the ACLs for amended soils range from 11 mg/kg to 2080 mg/kg added Cu. For soils with pH of 4-8 and a CEC from 5-60, the ACLs for Zn ranged from 21 to 1470 mg/kg added Zn. A SAAF of one was used for Zn as it concentrations in plant tissue and soil to water partitioning showed no difference between biosolids and soluble Zn salt treatments, indicating that Zn from biosolids and Zn salts are equally bioavailable to plants.

The con-stitutional re-cognition (s)cam-pain: The campaign for the hidden recognition of first nations peoples' racial inferiority

The constitutional recognition campaign has received party-wide support and its efforts have been promoted by Prime Minister Tony Abbott as being something that would ‘complete our Constitution.’ The broader rhetoric surrounding this campaign suggests that it will result in a just, albeit delayed, recognition of indigenous peoples in the Australian legal system. However, beneath the surface of this seemingly benevolent gesture, is a reaffirmation of the colonial subordination and erasure of the several hundred original nations’ peoples and ways of being.

Random Breath Testing Operation and Effectiveness in 1985

Random breath testing (RBT) was introduced in South Australia in 1981 with the intention of reducing the incidence of accidents involving alcohol. In April 1985, a Select Committee of the Upper House which had been established to “review the operation of random breath testing in this State and any other associated matters and report accordingly” presented its report. After consideration of this report, the Government introduced extensive amendments to those sections of the Motor Vehicles Act (MVA) and Road Traffic Act (RTA) which deal with RBT and drink driving penalties. The amended section 47da of the RTA requires that: “(5) The Minister shall cause a report to be prepared within three months after the end of each calendar year on the operation and effectiveness of this section and related sections during that calendar year. (6) The Minister shall, within 12 sitting days after receipt of a report under subsection (5), cause copies of the report to be laid before each House of Parliament.” This is the first such report. Whilst it deals with RBT over a full year, the changed procedures and improved flexibility allowed by the revision to the RTA were only introduced late in 1985 and then only to the extent that the existing resources would allow.