Guest editorial : the body and the law

This issue of the Journal of Law and Medicine seeks to explore the law's relationship with the human body within a broad context of social, cultural and technological considerations. It does this both in terms of the ways in which the law constitutes the body (for example, by labelling it as property or otherwise), and in terms of the legal rules which regulate rights to bodies and body parts.

Globalising the body : globalisation and reproductive rights

Globalisation is a phenomenon of the contemporary world. Everywhere around us there seem to be signs of the power of the forces of globalisation: in our media and popular culture; in our international linkages across continents through international travel and telecommunications; in our globalised trade; and with the global movement of people, a process which itself ranges from the movement of international tourists to the international movement of refugees and other displaced persons. The processes of globalisation seem to simultaneously unify and divide us. There is no doubt that we live in a globalised world and that we are connected to others in previously unimaginable ways by transportation, telecommunications and economics. Yet, while this global context increasingly links us to others, there is also a very real sense in which separation, difference and the local have also gained a new significance; we are locked in a tension between the universal and the particular that has come to typify contemporary society. This article explores the meanings of globalisation and this dynamic – or tension – between the universal and the particular in terms of its implications for the body and, in particular, its significance for women and their reproductive rights.

Exploring the scope of gene patents through new levels of transparency

As the global intellectual property (IP) system grows and now impacts virtually all citizens, it is crucial that the means to understand these rights and their teachings, as well as their implications and scope become global public goods. To do so requires not only that the primary data is available freely and openly in a standardized and re-useable form, but that tools to visualize, analyse and model that data are similarly open and free public goods, adaptable to diverse needs and uses; this we call ‘transparency’.

The rurality of sex : community resistance and objection to prostitution in rural and regional areas throughout Queensland

Queensland legislation currently defines two legally recognised forms of prostitution: sex work conducted in a licensed brothel; or, sex work conducted privately by a sole operator.Despite prostitution’s legality in these contexts, it continues to be heavily controlled and restricted by authorities, while also being rejected by surrounding communities. Such resistance towards prostitution is demonstrated in Queensland where over 200 towns with populations of less than 25,000 have been successful in applying for exemption from the development of licensed brothels in those jurisdictions (Prostitution Licensing Authority 2012). Queensland’s legislative acknowledgement of prostitution as a legal act, while simultaneously allowing small communities to reject such activity, seems somewhat contradictory. This paper will provide a theoretical examination of common community objections to prostitution in modern society, determining whether such attitudes are applicable to communities in rural and regional Queensland towns. Additionally, this paper will incorporate an analysis of rural and urban areas via the ‘gemeinschaft‐gesellschaft’ dichotomy to understand the potential justification for opposing areas being subject to differential treatment under the law.

Admissions of law or fact?

In Pollock v Thiess Pty Ltd, McMeekin J considered two applications for the withdrawal of deemed admissions. The judgment provides important guidance on pleadings and deemed admissions under the Uniform Civil Procedure Rules 1999 (Qld).

Reproductive Health as a Human Right: A Matter of Access or Provision?

This article seeks to understand why, despite over three decades of claiming women's reproductive health as a human right, we have seen little progress in reducing their health inequalities and poor health outcomes. I argue that one reason for this lack of progress may be due to a failure to clearly articulate the responsibilities of key actors, crucially states, in ensuring that women have access to, and provision of, services required to realize their reproductive rights. What is needed, this article suggests, is a framework that can translate decades of rights language into action and specifically identify the provisions required to address women's health.

Legitimising Rejection : International Refugee Law in Southeast Asia

The 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees are the two primary international legal instruments that states use to process asylum seekers' claim to refugee status. However, in Southeast Asia only two states have acceded to these instruments. This is seemingly paradoxical for a region that has been host to a large number of asylum seekers who, as a result, are forced to live as ‘illegal migrants’. This book examines the region's continued rejection of international refugee law through extensive archival analysis and argues that this rejection was shaped by the region’s response to its largest refugee crisis in the post-1945 era: the Indochinese refugee crisis from 1975 to 1996. The result is a seminal study into Southeast Asian's relationship with international refugee law and the impact that this has had on states surrounding the region, the UNHCR and the asylum seekers themselves.

The rule of law, the public interest and the management of natural resources in Australia

The statutory arrangements for the management of natural resources in Australia confer powers of decision-making upon government agencies and, at the same time, restrict how these powers are to be exercised by reference either to stated criteria or in some instances to the public interest. These restrictions perform different functions according to their structure, form and language: for example they may be in the form of jurisdictional, deliberative or purposive rules. This article reviews how the offshore resources legislation of the Commonwealth and some examples of the onshore resources legislation of Queensland address the functions performed by the public interest in determining whether there is compliance with the principle of the rule of law.

Legislative impact on the mortgagee’s exercise of power of sale : the need for rationalisation

Throughout Australia, regulation of the power of sale is highly inconsistent. In response to the uncertain nature of the mortgagee’s duty at common law, many legislatures have intervened. As a result, there has been a proliferation of statutory formula conferring varying degrees of protection on mortgagors. The differences in approach indicate a lack of consensus as to the best method of regulation. This article exposes the extent of the inconsistency and provides a comparative assessment of the various provisions with reference to the policy concerns that underpin legislative intervention. The article identifies a number of deficiencies associated with existing provisions and concludes that mortgagees and mortgagors alike would benefit from improved clarity and consistency. To that end, the article proposes a model provision that seeks to address the deficiencies identified.

The Construction and Performance of Commercial Contracts

This book analyses the principles underlying the construction and application of a number of boilerplate and other clauses commonly included in commercial contracts. The first Part of the work deals with general principles of interpretation. It then considers clauses which allocate commercial risk; clauses relating to performance; clauses introducing new parties by way of assignment, novation or nomination; clauses such as guarantees and indemnities which create liabilities in third parties; and dispute resolution clauses including governing law. The authors highlight common issues surrounding the application of these clauses in practice and, where appropriate, make drafting recommendations based on their analysis of case law and the operation of relevant statutes. This is a very accessible resource for all commercial practitioners.

Exploring Retinal Markers of Diabetic Neuropathy

Purpose : To investigate the application of retinal nerve fibre layer (RNFL) thickness as a marker for severity of diabetic peripheral neuropathy (DPN) in people with Type 2 diabetes. Methods : This was a cross-sectional study whereby 61 participants (mean age 61 [41-75 years], mean duration of diabetes 14 [1-40 years], 70% male) with Type 2 diabetes and DPN underwent optical coherence tomography (OCT) scans. Global and 4 quadrant (TSNI) RNFL thicknesses were measured at 3.45mm around the optic nerve head of one eye. Neuropathy disability score (NDS) was used to assess the severity of DPN on a 0 to 10 scale. Participants were divided into three age-matched groups representing mild (NDS=3-5), moderate (NDS=6-8) and severe (NDS=9-10) neuropathy. Two regression models were fitted for statistical analysis: 1) NDS scores as co-variate for global and quadrant RNFL thicknesses, 2) NDS groups as a factor for global RNFL thickness only. Results : Mean (SD) RNFL thickness (µm) was 103(9) for mild neuropathy (n=34), 101(10) for moderate neuropathy (n=16) and 95(13) in the group with severe neuropathy (n=11). Global RNFL thickness and NDS scores were statistically significantly related (b=-1.20, p=0.048). When neuropathy was assessed across groups, a trend of thinner mean RNFL thickness was observed with increasing severity of neuropathy; however, this result was not statistically significant (F=2.86, p=0.065). TSNI quadrant analysis showed that mean RNFL thickness reduction in the inferior quadrant was 2.55 µm per 1 unit increase in NDS score (p=0.005). However, the regression coefficients were not statistically significant for RNFL thickness in the superior (b=-1.0, p=0.271), temporal (b=-0.90, p=0.238) and nasal (b=-0.99, p=0.205) quadrants. Conclusions : RNFL thickness was reduced with increasing severity of DPN and the effect was most evident in the inferior quadrant. Measuring RNFL thickness using OCT may prove to be a useful, non-invasive technique for identifying severity of DPN and may also provide additional insight into common mechanisms for peripheral neuropathy and RNFL damage.

Duty to the court and the administration of justice : some examples, implications and clarifications

No liberal democracy can survive without popular trust in its judicial system. The legal profession and the judiciary enjoy a level of independence and autonomy from the executive that makes them both powerful and privileged. A UNIQUE AND ORGANIC DUTY: So long as the courts are seen to fulfil their duty to guard against encroachments by the executive on the freedoms and rights of individual citizens with integrity and credibility, they maintain enough public support to retain their normative authority. But support for those with power and privilege is easily undermined. It is contingent upon trust. Lawyers who breach that trust in ways that go to the heart of the legal system ought to expect to be made examples of and to suffer severe penalties. The good news is that the sorts of breach discussed here should be neither difficult to anticipate nor to avoid – in theory. In practice, smart and honest lawyers sometimes fall foul of these duties for all sorts of understandable (if not condonable) reasons. Law does not get practised in a social or cultural vacuum. Lawyers are people, and people have weaknesses, failings and stresses...

Review of penalties and additional damages : Trade Marks Act 1995

Effective enforcement of intellectual property (IP) rights has become a significant issue due to concerns about the effects of IP infringement, including trade mark counterfeiting. It is an important issue for the Australian Government as IP rights underpin a strong, modern economy. Criminal offences and civil remedies can be an important element of an enforcement regime. This review of penalties and additional damages in the Trade Marks Act 1995 (Cth) (Trade Marks Act) has been prompted by a recommendation made by the Advisory Council on Intellectual Property (ACIP), recent changes to the Copyright Act 1968 (Cth) (Copyright Act) and concerns raised by stakeholders. The purpose of this paper is to elicit comments on options which IP Australia is considering recommending to Government.

The Proposed Commonwealth Personal Property Securities Act 2008

Inspired by similar reforms introduced in New Zealand, Canada and the United States, the Commonwealth, with the co-operation of the States, seeks in the Personal Property Securities Bill 2008 (the Bill) to introduce a central repository of recorded information reflecting particular security interests in personal property in Australia. Specifically, the interest recorded is an interest in personal property provided for by a transaction that in substance secures the payment or the performance of an obligation. In addition to providing a notification of the use of the personal property as collateral to secure the payment of monies or the performance of an obligation, the Bill proposes to introduce a regime of prioritising interests in the same collateral. Central to this prioritisation are the concepts of a ‘perfected security interests’and ‘unperfected security interests’. Relevantly, a perfected security interest in collateral has priority over an unperfected security interest in the same collateral. The proposed mechanisms rely on the fundamental integer of personal property, which is defined as any property other than land. Recognising that property may take a tangible as well as an intangible form, the Bill reflects an appreciation of the fact that some property may have a tangible form which may act as collateral, and simultaneously the same property may involve other property, intangible property in the form of intellectual property rights, which in their own right may be the subject of a‘security agreement’. An example set out in the Commentary on the Consultation Draft of the Bill (the Commentary), indicates the practical implications involving certain property which have multiple profiles for the purposes of the Bill. This submission is concerned with the presumptions made in relation to the interphase between tangible property and intangible property arising from the same personal property, as set out in s 30 of the Bill.

Submission: Towards a Stronger and More Efficient IP Rights System : Getting the Balance Right

1. In March 2009, the Australian Government, through IP Australia its administrator of Intellectual Property Rights (IPR) acquired by registration or grant, issued two consultation papers for comment by interested stakeholders. 2. The Consultation Papers have invited written submissions directed towards the object of the paper, namely encouraging discussion on certain proposed changes and their impact on business and innovation. 3. I understand the invitation to make written submissions is predominantly in the areas raised by the Consultation Papers and the questions posed. However, I have made a brief reference to several other areas of concern with the current Australian patent law, which in my opinion inhibit innovation and therefore come under the wider agenda of the government to work toward a stronger and more efficient IP rights system. 4. In this regard, the Consultation Papers indicate that if the IPR are less likely to be invalidated and more likely to be enforced, this confidence will reflect in a greater investment in research leading to innovation. 5. This submission relates to the Balance Paper.