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Editors --- "DownUnderAllOver Developments around the country" [2000] AltLawJl 15; (2000) 25(1) Alternative Law Journal 39

A regular column of developments around the country

Federal Developments

Biosafety Protocol adopted

One year after talks by Parties to the Convention of Biological Diversity at Cartagena, Colombia were suspended because officials were unable to agree, the Conference of the Parties to the Convention on Biological Diversity has adopted the text of the Cartagena Protocol on Biosafety at 4.50 am on 29 January 2000 in Montreal.

The Protocol focuses on the transboundary movement of living modified organisms (LMOs). An LMO is 'any living organism that possesses a novel combination of genetic material obtained through the use of modem biotechnology'. LMOs include, for example, crops and seeds that have been genetically modified for greater productivity or nutritional value, or for resistance to pests or diseases. The Protocol does not apply to pharmaceuticals for humans that are addressed by other international agreements or organisations.

Different obligations are imposed in relation to different types of LMOs. For LMOs for intentional introduction into the environment, such as seeds and live fish, the Protocol establishes an 'advance informed agreement' procedure. The exporter, in advance of the first shipment, must provide detailed information to each importing Party and obtain its authorisation. The importing Party must advise either that its own regulatory framework (which must be consistent with the Protocol) will apply, or that it will decide under Article 10 of the Protocol whether to allow the import. Decisions under Article 10 must be based on risk assessments to evaluate the possible adverse effects of the LMOs on the conservation and sustainable use of biological diversity, also taking into account risks to human health.

LMOs intended for use as food, or feed, or for processing (LMO-FFPs), are subject to a less onerous process, based on the dissemination of information through an Internet-based Biosafety Clearing-House. Each Party must inform the others, through the Clearing-House, of any decision regarding domestic use of an LMO-FFP. A Party may decide under its own regulatory framework whether to allow the import of LMO-FFPs, and must provide copies of the laws and regulations constituting that framework to the Clearing-House. Countries without a domestic regulatory framework (developing countries and countries with an economy in transition) may declare through the Clearing-House that their decisions on the import of an LMO-FFP will be based on the Protocol's risk assessment process.

The 'precautionary principle' applies to decisions concerning the import of LMOs. Lack of scientific certainty regarding potential adverse effects of LMOs on biological diversity and human health does not prevent the importing Party from taking a decision that avoids or minimises such potential adverse effects.

The Protocol also imposes obligations concerning handling, transport, packaging, documentation and label­ ling of LMOs.

One contentious issue in the talks was the relationship between the Protocol and World Trade Organisation agreements. The preamble recognises that trade and environment agreements should be mutually supportive, emphasises that the Protocol shall not be interpreted as implying a change in rights and obligations under existing international agreements, and records an understanding that it is not intended to subordinate the Protocol to other international agreements.

The Protocol is restricted to Parties to the Convention on Biological Diversity. It will be opened for signature in May 2000 and will enter into force for the Parties concerned 90 days after the deposit of 50 instruments of ratification, acceptance, approval or accession.

Susan Reye

Susan Reye is General Counsel to the Department of the Environment and Heritage, Australian Government Solicitor.

Copyright amendment

The Copyright Amendment (Moral Rights) Bil/1999 was introduced by the Commonwealth Attorney-General on 8 December 1999. Debate was adjourned.

Those who have followed Australia's efforts to implement moral rights will recall that the moral rights aspects of the Copyright Amendment Bil/1997 were omitted after Parliament failed to agree on the waiver provisions during debate on the Bill in 1998. As the Attorney-General points out in his second reading speech for this new Bill, creators saw the provision for waiver in the original legislation as a means by which economically powerful users of their works could force them to agree to give up these new rights completely. In response to these concerns, the concept of waiver has been dropped from this version of the Bill.

Implementation of moral rights protection is necessary to fully implement Australia's obligations under Article 6 bis of the Berne Convention for the Protection of Literary and Artistic Works, the main international convention on copyright. Australia has come under criticism for its 'fragmentary' implementation of the Berne Convention.

Part IX of the Copyright Act 1968 (Cth) presently contains provisions prohibiting false attribution of author­ ship of a work. It does not, however require a positive recognition or attribution of authorship, and refers only to

'works'; it does not cover cinematograph films.

The new Bill seeks to address these shortcomings. The moral rights provided for will apply to authors of literary, artistic, dramatic and musical works and also authors of cinematograph films. It does not apply to sound recordings.

Three moral rights

The Bill provides for three moral rights:

1. an author's right to be identified as the author of a work (the right of attribution of authorship), subject to a test of 'reasonableness' - the identification of the work must be reasonably clear and prominent, that is, it must be such that a person acquiring the reproduction or copy will have notice of the author's identity (new ss.195AA and 195AB);

2. the right of an author to take action against false attribution (the right not to have authorship of a work falsely attributed); and

3. an author's right to object to derogatory treatment of their work which prejudicially affects their honour or reputation (the right of integrity of authorship of a work).

The right of integrity in a work will last until the death of the author of the work. However, the right of attribution and the right against false attribution will continue until copyright ceases to subsist in the work (for most works, the author's life plus 50 years).

Important features of the Bill

Important features of the Bill are:

• moral rights are conferred only on individuals -corporate bodies will not have moral rights under the new Part IX;

• an author's moral right in respect of a work applies only to acts or omissions within Australia;

• writers of scripts for films and television programs will be 'authors' of the film or television program alongside the current authors (the producer and director);

• a 'cinematograph film' is defined as the final version for release-moral rights will not apply in relation to unfinished versions of the film;

• an author may be identified by any

'reasonable' form of identification

which must be clear and reasonably prominent, ie so as to appear on each copy;

• non-attribution of authorship of a work may not be an infringement of moral rights if the omission was

'reasonable' in the circumstances (this will involve looking at the nature of the work, any relevant industry codes of practice and whether the creator was an employee);

• notwithstanding the abandonment of waiver provisions, the Bill makes provision for an author, artist or film-maker to 'consent' to the doing of something that would otherwise infringe their moral rights. Consent must be written, and may range from a specific consent (in relation to a specific act or a specific work) to a comprehensive consent. Consent may also be retrospective and may be conditional or unconditional. In effect, the practical outcome for authors may not be much different from the previous waiver provisions, that is, written 'consent' could now be required by commissioners and producers as a condition of any contract for the creation of a work;

• remedies for infringement of moral rights include an injunction, damages, a declaration, an order that the defendant make a public apology for the infringement, and an order that any false attribution of authorship, or derogatory treatment, of the work be removed or reversed.

The Bill and the Explanatory Memorandum are at <http://www.> and <


Elena Down

Elena Down is a Solicitor at Australian Government Solicitor.

The views in the two items above do not necessarily express the views of the AGS.


Legal privilege & common law

The High Court recently handed down a decision on privilege that provides an interesting insight into the interaction between the doctrine of client legal privilege in the Evidence Act 1995 (Cth) and the common law doctrine of legal professional privilege. In the case of Arnold Mann v Anne Katherine Carnell (December 1999, HCA 66), the High Court overruled the decision of the full Federal Court and held that the Evidence Act does not modify the common law doctrine of legal professional privilege in the jurisdictions in which it applies, in this case the ACT.

Dr Mann had brought a number of proceedings for breach of contract and defamation against the ACT Board of Health (as it was then known).Dr Mann settled one of his actions for a sum of money. Correspondence concerning this settlement ensued between Ms Carnell, Chief Minister of the ACT, and Mr Michael Moore, then an independent member of the ACT Parliament. Chief Minister Carnell provided to Mr Moore copies of documents which had been obtained by her on behalf of the Territory from its legal advisers.

Dr Mann sought access to these documents through a request for preliminary discovery in the ACT Supreme Court. The request was narrowed down to three documents from counsel and a fourth document from the ACT Government Solicitor. Chief Minister Carnell claimed privilege over the documents.

The full Federal Court considered the issue of privilege at common law and under the Evidence Act 1995.They decided that in jurisdictions where the Evidence Act applied, including the ACT, the common law principles must be treated as having been modified by the Evidence Act.

The High Court (in its majority decision) stated the full Federal Court had erred in deciding that the applicable law was to be found derivatively in the Evidence Act. While the Evidence Act applied in relation to all proceedings in the Supreme Court of the ACT, including the current proceedings, the ambit of the common law doctrine of legal professional privilege exceeded that of the Evidence Act. In this case, access to the documents had been sought at the preliminary stage of discovery and inspection in the hearing process. The common law doctrine of legal professional privilege applied at this stage. However, the Evidence Act would apply when evidence was 'adduced' (the words used in the Evidence Act), for example at the hearing.

The High Court found that privilege did attach to the documents, and this privilege had not been waived by Chief Minister Carnell's disclosure of the documents to Mr Moore in a confidential manner. • FD


Updating anti-discrimination law

Eight years in the making, the NSW Law Reform Commission's Review of the Anti-Discrimination Act was released the week before Christmas 1999 (Report 92).

As if to give value after a very long wait -the first written submission to the review was made in April 1992 - the Report is very big: 2 volumes, 944 pages, and 161 recommendations.

The size of the Report is in fact some measure of how dated the once innovative Anti-Discrimination Act of 1977 has become. Recommendation 7, for example is that the Act 'should include a Preamble which refers to a right to substantive, as distinct from formal, equality. It should identify the relevant international human rights instruments adopted by Australia and provide a brief statement of (those) principles.' Another sign of time passing is the recommendation to replace the term 'marital status' with 'domestic status'.

As well as 'updating' the Act, the Report recommends simplifying the maze of exceptions. If there is political will in NSW to implement the Report then most of the recommendations of this sort should be uncontroversial. The recommendations get interesting, and the Report throws down some real challenges, with the prospect of new grounds of discrimination.

The Report recommends the following be grounds for complaint of discrimination: religious beliefs and practices, political opinion, carer responsibilities, and sexuality defined as heterosexuality, homosexuality, lesbianism and bisexuality.

And there's more where that came from. The whole report can be read in html format online at <www.lawlink.>. Watch this space for the legislative response. • SR

Northern Territory

Mandatory sentencing

Mandatory sentencing in the Northern Territory is in the national and international spotlight following a string of events in February.

The Senate Legal and Constitutional References Committee's report will be published on 9 March 2000.

Their inquiry arose out of the Human Rights (Mandatory Sentencing of Juvenile Offenders) Bill 1999 initiated by Greens Senator Bob Brown which, if passed, would ban mandatory sentencing for juveniles in Australia.

The Committee's terms of reference include inquiring into and reporting on: the legal and social impact of mandatory sentencing; the implications of mandatory sentencing for particular groups; and Australia's international human rights obligations in regard to mandatory sentencing.

In the Northern Territory, submissions were made by Legal Aid; Aboriginal, Women's and Community Legal Services; the Law Society and Bar Association; NT Council of Churches; and Youth Rights Action Group.

A pivotal argument put to the Committee was that mandatory sentencing has not decreased crime. It was also argued that mandatory sentencing has increased incarceration rates amongst Aboriginal people, juveniles and women, particularly Aboriginal women.

It was argued that the mandatory sentencing laws contravene a number of international conventions including the Convention on the Rights of the Child, the Convention on the Elimination of all Forms of Racial Discrimination, the Convention on the Elimination of all Forms of Discrimination Against Women and the International Covenant on Civil and Political Rights.

There were criticisms made that the Northern Territory government has not conducted a thorough analysis of the impact of mandatory sentencing nor provided adequate information to enable such an analysis to be conducted.

A 15-year-old boy from Groote Eylandt died on I 0 February 2000 while serving a 28-day mandatory gaol term for stealing goods including textas, paints, pens and pencils worth less than $100. The boy reportedly died after hanging himself with bed sheets.

Renewed calls to abolish mandatory sentencing legislation were made by leaders of community groups. The Chief Minister of the Northern Territory, Denis Burke, said the boy's death was not related to the issue of mandatory sentencing. He said the issue was of suicide and self-destructive behaviour. He said 'there will always be deaths in custody ... [I]t's an Australia-wide issue'.

Another Aboriginal youth from Groote Eylandt was sentenced on 16 February to 12 months imprisonment. Jamie Wurramura, who is now 21, was sentenced to one year for stealing cordial and biscuits from a mine site

on Christmas Day. Mr Burke said that he did not regard the laws as trivial.

Greg Cavanagh, the magistrate who sentenced both Mr Wurramura and the boy who died in custody, had commenced the coronial inquest into the death of the 15-year-old boy. On 16 February Mr Cavanagh announced that he would no longer be sitting as coroner for the case but did not elaborate.

Further pressure was brought to bear on the Northern Territory government by the meeting between United Nations Secretary-General Kofi Annan and Chief Minister Burke in Darwin on 18 February.

Mr Burke said that he can defend the laws easily. Mr Annan has since requested the UN High Commissioner for Human Rights to investigate mandatory sentencing laws in the Northern Territory and Western Australia.

They weren't kidding when they said we do things differently up here. • FH


Gender vs merit

As described in detail in the Weekend Australian (12-13 February 2000), Sir Harry Gibbs, former Chief Justice of the Australian High Court, spoke about judicial appointments, merit and gender at a function at the Queensland Supreme Court in early February. Attorney­General Matt Foley was in attendance.

Sir Harry referred to the importance of having a more transparent process for judicial appointments. He raised concerns about inappropriate motives sometimes influencing judicial appointments. Sir Harry stated that 'at one time, religion seemed to be a determinative factor'. He also referred to political affiliation before turning to gender. Sir Harry stated 'a more recent heresy is that the bench should be more representative and that the sex of the aspirant should be a more important consideration than merit.' He warned that the appointment of insufficiently qualified or meritorious people to judi­ cial positions risked injustice as well as disturbing the morale of the bench and undermining the faith of the legal profession in the appointment system.

Since coming to power in 1998, the Beattie ALP government has appointed 12 women to the judiciary along with 11 men. The Beattie government appointed Margaret McMurdo as President of the Court of Appeal and Di Fingleton as Chief Magistrate. In response to Sir Harry Gibbs' comments, Attorney-General Foley defended his judicial appointments, stating that all had been based on merit.

In stark contrast to the informative coverage of the Australian, the Courier Mail ran only a brief report on the issue. It was left to the Sunday Mail to provide more detail, including coverage of the response of Premier Beattie to Sir Harry's remarks. The Premier said that Sir Harry belonged to an 'old boys club' which was angry as it no longer had a monopoly on judicial appointments in Queensland. Did Queensland's major newspaper miss the boat on this story, or was it decided by the editors that the views of Sir Harry are no longer relevant? Make up your own mind.

Police computer misuse

The Queensland Criminal Justice Com­ mission is conducting an inquiry into misuse of the Queensland Police Service database. Counsel assisting the inquiry, Ralph Devlin, has referred to a Brisbane­ based senior officer who used confidential information to assist in his part­ time job with a debt collection agency. Devlin also told the inquiry that systematic misuse of the database had been uncovered at a provincial police station. • JG


Blood rights

In December I999, Minister for Health, John Thwaites, indicated that he would implement the recommendations of the Smallwood Review Committee pertaining to the blood donor/recipient process. The aim of the Report was to suggest appropriate measures to increase the quality controls on the blood donation/transfusion process, specifically attempting to minimise the risk of transfusing HIV infected blood. Some of the recommendations included:

• the establishment of a 'Haemovigilance' scheme. Health professionals would be encouraged

to report newly discovered cases of infected blood to a confidential national agency with the consent of their patients. They would also re­ port incidents where a patient suffers adverse reactions after having received a blood transfusion, which may signal the initial stages of HIV infection;

• altering the blood donor's questionnaire to ask whether the donor has had sexual relations with a partner currently living or previously living overseas, in order to cover cases where the discovery of HIV may not have been reported to the Haemovigilence scheme;

• the introduction of the Nucleic Acid test which decreases the waiting time or 'window period' for the detection of the HIV virus from 22 days to II days;

• creating the right of parents to donate blood for transfusion to their children, unless there are medical reasons not to do so.

The Review was conducted during the time when a Melbourne schoolgirl was diagnosed with HIV after receiving a blood transfusion from the Red Cross Blood Bank while she was undergoing elective surgery in I998. The infected girl's father, who was denied the opportunity to donate blood for transfusion to his daughter, welcomed the Smallwood Report. The medical profession has commented, however, that 98% of blood donations for children are required for those suffering from cancer or who are admitted to emergency surgery, where it is not medically advisable to trans­ fuse blood to a child from their parents.

Greater diversity on the bench

Attorney-General Rob Hulls has launched a Victorian government campaign to encourage greater diver­ sity in the future selection of applicants for positions as judges and magistrates. The government is looking to increase the number of women on the bench, along with increased representation of indigenous and ethnic groups.

At present, the number of women on the bench is disproportionately low. The Magistrates Court has 24 women and 7I men; the County Court - 7 women and 45 men; the Supreme Court -2 women and I7 men. The Court of Appeal is composed of II men.

Responses to the government's recruitment drive from the Victorian Bar Council and the Law Institute of Victoria were similar: stressing the importance of merit and ability. One would hope that when the government considers the merits of culturally diverse applicants for judicial positions they also value a diversity of merits, experiences and abilities.

Removal of POWER in Victoria

Maintenance workers of the Yalloum Energy plant, which normally supplies 20% of Victoria's electricity, recently went on strike in protest at the company's assertion of their unfettered right to hire contract labour. The relevant unions alleged that such an assertion was an attempt to 'de-unionise' the La Trobe Valley, with a necessary decline in workers' rights.

In order to conserve the State's sup­ ply of electricity, the government announced that mandatory power restrictions would be imposed on households and businesses. On February 7, 8, 9 and IO between I and 7 pm, households were not able to use electricity for 'non-essential' appliances such as air-conditioners, personal computers and stereos. Businesses were also banned from using air-conditioners and had to switch off any unnecessary lighting. Hospitals and other essential services were exempt from the restrictions. Following a weekend of unresolved talks between the unions and the energy supplier, on 7 February Premier Steve Bracks ordered the Yallourn Energy workers to return to work at 6 pm under the provisions of the Electricity Industry Act. He said that if the workers did not obey the order, they risked fines of up to $10,000 and the

company faced fines of up to $I million if it did not resume supplying power.

Federal Workplace Relations Minister, Peter Reith, claimed that the Bracks government should have intervened in the dispute earlier than it did, before power had to be rationed. The Victorian government held that it had no power to intervene in an industrial dispute, following the former government's ceding of that power to the Commonwealth in I996.

I guess that in many contexts, Victorians may ask: 'Who has power?' • MR

Western Australia

Unrepresented appellant's scheme

In March 2000, a new initiative, the 'Unrepresented Criminal Appellant's Scheme' will commence operation on the west coast. It is a cooperative scheme devised by the University of Western Australia and others and chaired by Justice Miller of the Western Australian Supreme Court.

The Scheme has attracted a commendable degree of support from the legal profession and the judiciary. To date, 4I practitioners have volunteered their skills, including six Queen's Counsel. Acting under the guidance of supervising solicitor Karen Farley, the scheme will combine the efforts of senior undergraduate law students and qualified practitioners in the preparation and initiation of criminal appeal proceedings. Students will be given course credit for their roles in preparing an appellant's appeal book, grounds of appeal and outline of submissions. The practitioner, acting on a pro bono basis, will then advocate the case in court. The primary aim of the scheme is to improve the efficiency and fairness of the appeal process. It should also pro­ vide students with some invaluable clinical experience.

Mandatory sentencing

The UN Secretary-General, Mr Kofi Annan, has requested the UN High Commissioner for Human Rights to investigate whether WA's mandatory sentencing laws are in breach of Australia's international obligations. The Australian Senate inquiry will report on 9 March 2000 • PN & TH

DownUnderAI/Over was compiled by Alt.LJ committee members Fiona Dalton, Jeff Giddings, Tatum Hands, Fiona Hussin, Patricia Neurauter, Michael Ryall and Simon Rice, together with invited writers listed under their contribution above.


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