22 February 2020

Fertility and Donor Linking

'The Donor-Linking Practices of Australian Fertility Clinics' by Fiona Kelly, Deborah Dempsey and Charlotte Frew   in (2019)  27 Journal of Law and Medicine  355 comments
  While Australia is a world leader in providing statutory donor-linking services – the practice whereby individuals connected through donor conception seek access to information about each other – there has been only limited exploration of how fertility clinics respond when approached with donor-linking requests. This article reports on 19 qualitative interviews conducted with Australian fertility clinic staff that explored how clinics manage requests to share identifying and non-identifying information about parties involved in donor conception. Our findings indicate that fertility clinics have experienced an increase in donor-linking requests in recent years, but that they are typically dealt with on an ad hoc basis. Two approaches to donor linking were identified: (1) an "active" approach where clinics supported donor linking and were willing to engage in outreach to see if the other party was open to information exchange; and (2) a "passive" approach whereby clinics were reluctant to facilitate linking and were unwilling to outreach to other parties. The variety of responses to donor-linking requests highlight the ways in which donor-conceived adults, parents and donors can have dramatically different access to information, depending on the clinic that provided treatment.
The authors state
Donor linking is the practice whereby individuals connected through donor conception – donor-conceived children and adults, recipient parents and donors – seek access to identifying and non-identifying information about each other. It can be achieved through statutory registers (where they exist and the applicant meets certain eligibility requirements), inquiries made to fertility clinics or sperm banks, direct-to-consumer DNA testing, non-statutory online voluntary registers, or social media searches using information contained in a donor profile. While it is difficult to gauge exactly how many people are participating in donor linking, the advent of linking legislation in a growing number of jurisdictions and the rise in informal linking as documented in the media, suggest it is increasing in popularity.

While Australia is a world leader in providing statutory donor-linking services to the donor conception community, little is known about how the practice is managed within the fertility industry. In particular, there has been only limited exploration of how fertility clinics respond when approached with donor-linking requests. Given that clinics are often the first place someone might turn when trying to locate donor relatives, particularly in States without donor-linking legislation, knowing what clinics do when donor-linking inquiries are made is important to understanding the complex landscape of donor linking in Australia.

A small body of research has begun to emerge on the use of Australia's statutory donor-linking registers. This literature indicates that use of the registers is growing across all applicant groups (donor-conceived adults, donors and recipient parents). At the same time, it is impossible to know what percentage of eligible applicants apply as we have no record of the total number of donor conception births in Australia, and many donor-conceived people do not know they are donor conceived. Early research also suggests that applications for information frequently lead to face-to-face contact between donor relatives. However, statutory registers are only available in three States and many donor-conceived people do not fall within the ambit of the legislation because they were conceived before it came into force, are not yet old enough to apply, or are not aware of the existence of the registers. In situations where there is no State register, or where the potential applicant does not meet the eligibility criteria, they are likely to turn to the fertility clinic (or treating hospital) when looking for information about donor relatives. Since 2005, the National Health and Medical Research Council, Ethical Guidelines on the Use of Assisted Reproductive Technology in Clinical Practice and Research (the NHMRC Guidelines) have specified that clinics only use donors who agree to disclose identifying information about themselves to any resultant offspring, and clinics have been required to record all relevant information about parties involved in donor conception programs. Where the State has a statutory register, clinics are obliged to provide the information to the register. In States without a register, it is the responsibility of the clinic to maintain the records. Many Australian clinics also have pre-2005 records, though there are some instances of records being lost or destroyed, or difficult to locate or understand. Where pre-2005 records exist, the NHMRC Guidelines require that they be preserved by clinics.

While clinics are the natural starting point for many people looking for information about their donor relatives, little is known about this type of linking. The small body of research that has emerged has focused on the experiences of individuals who have requested information from a clinic. Virtually nothing is known about clinic-based linking from the perspective of clinics. To fill this information gap, we conducted 19 qualitative interviews with fertility clinic staff across seven Australian States and Territories to explore policies, practices and processes regarding the management and sharing of identifying and non-identifying information about parties involved in donor conception. Clinic staff were asked about the frequency and nature of donor-linking requests, how they responded to them, the challenges and impediments to donor linking in the clinic setting, and how they are preparing for donor linking in the future. Our findings indicate that clinics have experienced an increase in donor-linking requests in recent years, but that they are largely dealt with on an ad hoc and often inconsistent basis. Two approaches to donor linking were identified among the clinics: (1) an "active" approach, meaning that clinics were open to facilitating donor linking and were willing to engage in outreach to see if the other party was open to information exchange; and (2) a "passive" approach whereby clinics were reluctant to facilitate linking and were unwilling to outreach to other parties to ask if they were open to contact. The variety of responses by fertility clinic staff to donor-linking requests highlight the ways in which donor-conceived adults, recipient parents or donors can have dramatically different access to information, depending on the clinic that provided treatment.


The Machine As Author' by Daniel J. Gervais in (2019) 105 Iowa Law Review comments
The use of Artificial Intelligence (AI) machines using deep learning neural networks to create material that facially looks like it should be protected by copyright is growing exponentially. From articles in national news media to music, film, poetry and painting, AI machines create material that has economic value and that competes with productions of human authors. The Article reviews both normative and doctrinal arguments for and against the protection by copyright of literary and artistic productions made by AI machines. The Article finds that the arguments in favor of protection are flawed and unconvincing and that a proper analysis of the history, purpose, and major doctrines of copyright law all lead to the conclusion that productions that do not result from human creative choices belong to the public domain. The Article proposes a test to determine which productions should be protected, including in case of collaboration between human and machine. Finally, the Article applies the proposed test to three specific fact patterns to illustrate its application.


Sitting in on a grad law workshop where students are discussing gifts, conditional gifts and rings.

In Cohen v Sellar (1926) 1 KB 536 McCardie J commented
 (a) If a woman who has received a ring in contemplation of marriage refuses to fulfil the conditions of the gift she must return it. 
(b) If a man has, without a recognised legal justification, refused to carry out his promise of marriage, he cannot demand the return of the engagement ring. 
(c) It matters not in law that the repudiation of the promise may turn out to the ultimate advantage of both parties. A judge must apply the existing law as to the limits of justification for breach. 
(d) If the engagement to marry be dissolved by mutual consent, then in the absence of agreement to the contrary, the engagement ring and like gifts must be returned by each party to the other.
In Papathanasopoulos v Vacopoulos [2007] NSWSC 502 Smart AJ found that if a woman refuses without legal justification to marry her fiancé, she cannot keep the engagement ring and must return it.

Vicki Papathanasopoulos had received a $15,250 engagement ring on the condition that she would marry Andrew Vacopoulos. She called off the engagement (and wedding) ten days after the engagement party and receipt of the sparkler, with words to the effect “the wedding is off, here take the ring, I don’t want it.”

She then removed the engagement ring and placed it on the coffee table in front of Vacopoulos. She stated that during the remainder of his time at the family home, about half an hour, the ring remained on the table in front of him. At no time did he attempt to pick up the ring or take the ring with him. He responded with words to this effect, “I do not want the ring it is a gift for you, you can keep it.”

At some stage after Vacopoulos she “put all of the photographs, jewelry ( [sic] ) and other items that were symbolic of my relationship with [AV] in a box and packed them away in a wardrobe in my room.” About 24 August 2005 she said to Vacopoulos in a telephone conversation, “with the presents we got from the engagement on your side, I want you to pick them up I don't want them, ring my dad to organise a time to pick them up so I'm not in the house". Papathanasopoulos complained that in September he telephoned her at work, declared his love for her and said he wanted her back.

She said that she told him to stop telephoning her and leave her alone, terminating the conversation. Papathanasopoulos telephoned her mother and told her that she wanted to throw out all the items Vacopoulos had given her. Her father threw the box with all the items in the rubbish bin. In the early afternoon of 29 September 2005 Vacopoulos sent an email which stated, amongst other things: “Your dad said that he tore up my photos and threw the ring in the garbage. Why is this happening, I don't want it to happen".

Vacopoulos later made a claim in the NSW Local Court for the return of the engagement ring or compensation for its value. Magistrate George in the Local Court found for Vacopoulos, ordering Papathanasopoulos to compensate Vacopoulos for the ring's value. Papathanasopoulos appealed, claiming that the ring was a gift and that she was entitled to deal with it as she pleased.

Stewart AJ commented
If a party rejects the gift of an item as the magistrate found, it is not open to her, if she later takes control of the item, to claim the item as a gift when she continues to assert that she does not want it and asks for it to be thrown out. A party cannot be forced to take or accept a gift … Upon VP rejecting the gift she became a bailee of that item so long as she had it in her control. It is not open to a bailee to cause the item bailed to be thrown into the garbage bin. This is especially so where the item is valuable and no proper notice was given and but a short time had elapsed. Holding a small item, such as an engagement ring is not a great chore. I do not accept the contention that it was irrelevant that VP rejected the gift of the engagement ring.
The Supreme Court found that Papathanasopoulos was the holder of a “conditional gift”: the engagement ring would only become her property after their marriage took place. He said that, legally, a woman who receives a ring in contemplation of marriage, and who later refuses to marry, must return the ring unless there is some legal justification for her decision - for example acts of violence towards her, or evidence that her fiancĂ© was unfaithful.

Smart found that there was no such justification. By changing her mind about the marriage, Papathanasopoulos was rejecting the gift; “upon rejecting the gift she became a bailee of that item so long as she had it in her control” responsible for it until Vacopoulos asked for its return.

Papathanasopoulos’s claim that the gift became absolute when Vacopoulos told her that she could keep it was rejected by Smart, construing Vacopoulos' statement as merely an attempt to preserve the relationship rather than evidence that he was giving her the ring to do with as she pleased. The appeal was dismissed; Papathanasopoulos was again ordered to pay compensation and Vacopoulos’s costs.

'Rituals of Engagement: What Happens to the Ring When an Engagement is Called Off?' by James Duffy, Elizabeth Dickson and John O'Brien in (2020) 94 Australian Law Journal 61 comments
Whether due to the beauty, the cost, or the sentiment of an engagement ring, it is an asset that people hold valuable. In recent years, Australian popular media has been captured by stories of celebrities who have broken off engagements, but then quarrelled over who is entitled to the engagement ring. James Packer, Mariah Carey, former Australian cricket captain Michael Clarke and Lara Worthington (then Bingle), have all supposedly been involved in disputes surrounding expensive engagement rings. The rule of thumb that a man should spend two to three months of annual salary on an engagement ring meant that Packer and Carey were dealing with a 35 carat, 10 million dollar ring, and Clarke and Bingle a 4.7 carat, $200,000 ring. It is hard to tell whether these disputes were real or fabricated (Bingle allegedly flushed her engagement ring down the toilet). Whatever the case, they do raise an interesting question as to who is legally entitled to keep the ring on dissolution of an engagement. 
As will be outlined in this article, the law surrounding engagement rings has been quite stable in Australia. Australian courts have adopted the thorough reasoning of Justice McCardie in the 1926 English High Court (King's Bench Division) decision of Cohen v Sellar. It came as a surprise when in 2017, the New South Wales Local Court in Toh v Su questioned whether Cohen v Sellar still represented good law.  The Magistrate did not follow the reasoning in Cohen v Sellar, and suggested that a more modern view regarding the treatment of engagement rings was required. This article suggests that there are conceptual difficulties with the substance of the decision in Toh v Su, and procedural issues relating to the doctrine of precedent, which mean that this decision should not be adopted by other courts. As a decision of the New South Wales Local Court, the judgment (at present) may not be of great moment. Difficulties will arise however, if other courts in the New South Wales jurisdiction or beyond, adopt the reasoning contained in the judgment.
The authors comment
Given the adoption of Cohen v Sellar principles into Australian common law, it came as a surprise that Magistrate Brender in Toh v Su questioned the modern relevance of Cohen v Sellar and refused to follow the decision. The case involved Mr Toh proposing to Ms Su on 5 December 2015 and giving her an engagement ring. On 5 March 2016, Toh said to Su (in the presence of a friend) that he no longer wished to marry Su or be in a relationship with her. He also stated that "everything that belongs to   each party will be returned to each party". 
Toh brought an action in a New South Wales Local Court (Downing Centre) seeking the return of the engagement ring, as well as several other gifts. Toh sued for the engagement ring on the basis that it was a gift conditional on marriage, and as the marriage did not go ahead, he was entitled to its return. If Cohen v Sellar was applied in this case, the result would be that as Mr Toh, without recognised legal justification, refused to carry out his promise of marriage, he could not demand the return of the engagement ring. The Magistrate held however that Mr Toh was unable to reclaim the engagement ring, on the basis that it was an unconditional gift and therefore became the absolute property of Ms Su. 
The fact that the marriage did not go ahead was irrelevant, as there were no conditions attached to the giving of the ring. While his Honour acknowledged that it would be possible to give an engagement ring with conditions (borne from words or conduct), his Honour felt that the default position for any engagement ring is that it should be viewed as a gift given without condition. 
Magistrate Brender reached this conclusion based on the supposed effect of two pieces of legislation. First, his Honour held that, given the abolition of action for breach of promise to marry in s 111A of the Marriage Act, "there is arguably no room for the operation of the rule of recovery [of the engagement ring] in the event the marriage does not proceed". 
Second, given the passing of the Family Law Act 1975 (Cth) and the principle of no-fault divorce, his Honour stated that, "it would be surprising, given that statute, if the common law still determined legal rights between parties to a proposed marriage by reference to whether or not their conduct in breaking off an engagement was justified or not". 
The first criticism that can be made of his Honour's judgment is that there are jumps in logical reasoning. It is not clear why the enactment of s 111A of the Marriage Act abolishing the action of breach of promise to marry should affect a decision as to who should keep an engagement ring. It is simply suggested as a matter of fact, that it does. One possibility is that the Magistrate was concerned (despite the presence of s 111A(2), considered in the next paragraph) with the "deposit or pledge" analogy of an engagement ring. If one party breaches their promise to marry they forfeit the deposit of the ring. Breach of promise to marry was previously recognised as a legal wrong, with attendant legal consequences regarding the loss of a deposit. Given the abolition of action for breach of promise to marry, it could be argued that since there is no legal obligation to honour a promise of marriage, you should not be liable to lose a deposit if you default on your promise. ... 
Comparative law and case law aside, treating an engagement ring as an unconditional gift would seem inconsistent with the current wording of s 111A of the Marriage Act. Subsection (2) states that the abolition of the "breach of promise" action in subs (1) "does not affect an action for the recovery of any gifts given in contemplation of marriage which could have been brought if this section had not been enacted". An action brought for recovery of an engagement ring in Australia prior to the enactment of s 111A(1) would be subject to common law Cohen v Sellar principles. Cases such as Kais v Turvey, Papathanasopoulos v Vacopoulos and Loumbos v Ward all make it clear that an engagement ring is properly characterised as a conditional gift. It is difficult to understand how the fundamental nature of this gift can be changed by abolishing a separate (though somewhat related) cause of action in breach of promise to marry. 
Whatever reasoning informed Magistrate Brender's decision, it does not account for the clear intention of the Commonwealth Parliament in 1975, as contained in s 111A(2), that the law relevant to the disposition of gifts given in contemplation of marriage is undisturbed by the abolition of the action for breach of promise in s 111A(1). The contemporary meaning and symbolism of an engagement ring is a social question. On that basis, it would seem more appropriate for the Commonwealth Parliament to decide how such a gift should be characterised, and the attendant consequences that flow from such a characterisation for those who terminate an engagement. 
Similar legislation from different countries around the world highlight how this task could be achieved. In England and Wales, the Law Reform (Miscellaneous Provisions) Act 1970 (UK) removed any cause of action for breach of promise to marry. The British Parliament acted upon a 1969 report by the English Law Commission, suggesting that the action be removed. As a separate question, the Law Commission (and subsequently the Parliament) dealt with the legal entitlement to gifts conditional upon marriage, where the marriage did not proceed. Section 1(1) of the Act removed any action for breach of promise to marry: An agreement between two persons to marry one another shall not under the law of England and Wales have effect as a contract giving rise to legal rights and no action shall be brought in England and Wales for breach of such an agreement, whatever the law applicable to such an agreement.

Section 3 of the Act deals with gifts given in contemplation of marriage: (1) A party to an agreement to marry who makes a gift of property to the other party to the agreement on the condition (express or implied) that it shall be returned if the agreement is terminated shall not be prevented from recovering the property by reason only of his having terminated the agreement. The gift of an engagement ring shall be presumed to be an absolute gift; this presumption, may be rebutted by proving that the ring was given on the condition, express or implied, that it should be returned if the marriage did not take place for any reason.

The effect of this s 3 in England and Wales is that the decision in Cohen v Sellar no longer represents good law in those countries. [74] Perhaps this is what influenced the Magistrate in Toh v Su (and earlier Justice McPherson in Wynen v Jenkins) to question whether Cohen v Sellar was still good law in Australia. It is important to note however, that the law governing entitlement to engagement rings in England and Wales is determined by the clear wording in s 3(2) of the Law Reform (Miscellaneous Provisions) Act 1970 (UK). The law was not changed, by implication, from the wording of s 1 (the equivalent of s 111A(1) of Australia's Marriage Act) in isolation. This was the implication that the Magistrate sought to draw in Toh v Su, and absent more direct statutory language in the Marriage Act, it is argued that it was not a logical implication to make.

The next criticism of the judgment is his Honour's reliance upon the "no-fault" divorce provisions of the Family Law Act 1975 (Cth). His Honour argued that given fault was no longer relevant to obtaining a divorce (and subsequent property settlements), it should not be relevant to determining property rights upon dissolution of an engagement. At face value, this argument has some appeal, but the analogy breaks down when one considers the status of the engagement ring before, and after, marriage occurs. When a marriage has occurred, an engagement ring is no longer a conditional gift. The gift becomes unconditional, and is the absolute property of the donee (traditionally, a wife). The "no fault" provisions of the Family Law Act simply mean that the issue of who called off the marriage cannot be used as leverage to determine who should keep the engagement ring. The ring may stay with the wife or be returned to the husband as part of a property settlement, but there is no question that, until such time, the wife would be the legal owner of the engagement ring.

The situation is different when a marriage does not occur, because the condition on which the engagement ring was given has not eventuated. This means that legal entitlement to the engagement ring is in issue. Based on Cohen v Sellar principles, the idea of fault (who called off the engagement) is important to determining who gets to keep the ring. It would certainly be possible to extricate the notion of "fault" from who is entitled to keep an engagement ring, but this would mean a retreat from Cohen v Sellar principles. The result would be that the engagement ring is returned to the person who gave it, regardless of who called off the engagement. There are many who would consider this a fair result, and in Toh v Su, Mr Toh pleaded his case on this basis. Such a change however, should ultimately come from the legislature, and the overruling of Cohen v Sellar principles in the absence of clear legislative guidance was not an appropriate step for a Magistrate to take.

Looking forward, whether fault should continue to play a role or not in who keeps an engagement ring upon dissolution of an engagement is an interesting social question. No fault divorce is an expedient that makes property settlements simpler and less acrimonious. Whether the policy drivers applicable to no fault divorce should extend to legal entitlements to an engagement ring is a debate worth having, but not a debate that should be decided by a Local Court of New South Wales. In any event, that debate is a different one to whether an engagement ring is a conditional or unconditional gift. This article contends that neither the Marriage Act or the Family Law Act 1975 (Cth), separately or in combination, have the effect of changing the essential nature of an engagement ring, which is a conditional gift.

20 February 2020


'Neuro-Surveillance and the Right to be Human at Work' by Valerio De Stefano in On Labor comments
In 2018, the news reported that some assembly line workers had been asked to wear caps that monitor brain waves in order for managers to adjust the pace of production and workflows. Some observers raised doubts on the reliability of these tools, and even cast doubts on their actual functioning, but it is undeniable that forms of mental surveillance are increasingly coming to our workplaces. “Sociometric badges”, wearable tools tracking emotions and stress by collecting data on heartbeats and the tone of voice, for instance, are spreading in the United States. 
In 2018, the news reported that some assembly line workers had been asked to wear caps that monitor brain waves in order for managers to adjust the pace of production and workflows. Some observers raised doubts on the reliability of these tools, and even cast doubts on their actual functioning, […] 
Most of these practices should be urgently restricted. Losing one’s mental privacy arguably threatens one of the core elements of being human. If this occurs at the workplace, where workers are already subject to quasi-dictatorial managerial prerogatives, the consequences could be disastrous. Yet, no significant attention has been devoted to how neurotechnologies, and other forms of mental surveillance, may impact on workplaces. 
Besides brain waves monitoring and emotional tracking, facial scans are also widely used in recruitment, with artificial intelligence analyzing “how a person’s face moves” to detect ”how excited someone seems about a certain work task or how they would behave around angry customers”. Research projects exploring how to connect brains to technological devices are underway that could have detrimental consequences for workers. 
The more these practices progress, the more labour scholars should raise concerns about them. Experimentations and implementation of these practices need data, and workplaces are perfect data mines. If regulation is not brought up-to-speed, the future world of work risks being one where employers require employees to use tools that collect data on their brain activity to engage in a unrestrained quest for productivity, to predict their behavior and even to monetize on their data by making them accessible to third parties. 
Given the imbalance between employers and workers, there is limited possibility for workers to refuse such surveillance without risking to lose their jobs. This is why European countries have promoted governance of these practices through collective bargaining and workers’ representatives’ involvement. The EU General Data Protection Regulation provides that EU Member States may introduce, by law or by collective agreements, “specific rules to ensure the protection of the rights and freedoms in respect of the processing of employees’ personal data in the employment context”. 
Much more heed, however, needs to be paid to “neuro-surveillance at work”. Neuroscientist Marcello Ienca, for instance, called for the recognition of new human rights to face the rise of neurotechnology, including rights to mental privacy and integrity. xxx

AI Lawyering

Would you get better results from a cup of coffee and a thoughtful Google search?

'Applied Natural Language Processing for Law Practice' by Brian S. Haney comments
 Scholars, lawyers, and commentators are predicting the end of the legal profession, citing specific examples of artificial intelligence (AI) systems out-performing lawyers in certain legal tasks. Yet, technology’s role in the practice of law is nothing new. The Internet, email, and databases like Westlaw and Lexis have been altering legal practice for decades. Further, cutting edge AI technology has been around since the early twentieth century. Despite technology’s evolution across other industries, in many ways the practice of law remains static in its essential functions. 
The dynamics of legal technology are defined by the organization and quality of data, rather than innovation. This Article explores the state-of-the-art in AI applications in law practice, offering three main contributions to legal scholarship. First, this Article explores various methods of natural language database generation and normalization. Second, this Article provides the first analysis of two types of machine learning models in law practice, deep reinforcement learning and the Transformer. Third, this Article introduces a novel natural language processing algorithm for legal writing.

19 February 2020

Privacy Externalities

'The Economic Consequences of Data Privacy Regulation: Empirical Evidence from GDPR' by Guy Aridor, Yeon-Koo Che, William Nelson and Tobias Salz comments
This paper studies the effects of the EU’s General Data Protection Regulation (GDPR) on the ability of firms to collect consumer data, identify consumers over time, accrue revenue via online advertising, and predict their behavior. Utilizing a novel dataset by an intermediary that spans much of the online travel industry, we perform a difference-in-differences analysis that exploits the geographic reach of GDPR. We find a 12.5% drop in the intermediary- observed consumers as a result of GDPR, suggesting that a nonnegligible number of consumers exercised the opt-out right enabled by GDPR. At the same time, the remaining consumers are more persistently trackable. This observed pattern is consistent with the hypothesis that privacy-conscious consumers substitute away from less efficient privacy protection (e.g, cookie deletion) to explicit opt out, a process that would reduce noise on remaining consumers and make them more trackable. Further in keeping with this hypothesis, we observe that the average value of the remaining consumers to advertisers has increased, offsetting most of the losses from consumers that opt-out. Our results highlight the externalities that consumer privacy decisions have both on other consumers and for firms.

15 February 2020


In Comptroller-General of Customs v Pharm-A-Care Laboratories Pty Ltd [2020] HCA 2 the High Court has unanimously dismissed an appeal from a judgment of the Full Court of the Federal Court of Australia regarding classification of certain goods for the purpose of the Customs Tariff Act 1995 (Cth). It is a useful judgment regarding nutraceuticals., in this instance what a sceptic would regard as lollies.

 The Act imposes duties of customs on goods imported into Australia. Chapter 30 of Sch 3 to the Act contains heading 3004 under which medicaments consisting of mixed products for therapeutic or prophylactic uses put up in measured doses are relevantly classifiable. Note 1(a) to Ch 30 states that the chapter does not cover "[f]oods ... such as ... food supplements".

 Pharm-A-Care Laboratories Pty Ltd imports pastilles (referred to as "vitamin preparations" and "garcinia preparations") containing sucrose, glucose syrup, gelatin, flavours and other substances including vitamins of specified descriptions or a quantity of hydroxycitric acid. On an application for review under the Customs Act 1901 (Cth), the Administrative Appeals Tribunal found that the vitamin preparations and the garcinia preparations were classifiable under heading 3004. The consequence was that no duty was owed on the importation of the preparations.

 The Comptroller-General of Customs appealed the Tribunal's decision to the Federal Court on questions of law under the Administrative Appeals Tribunal Act 1975 (Cth). The Comptroller-General contended that the vitamin preparations and the garcinia preparations were each classifiable as either a type of "sugar confectionery", under subheading 1704.90.00, or as "food preparations", under subheading 2106.90.90, so that each was dutiable at a rate of 5% or 4%. The Comptroller-General contended that the vitamin preparations and the garcinia preparations were excluded from heading 3004 because they answered the description of "food supplements" within Note 1(a) to Ch 30.

 The Full Court of the Federal Court upheld the Tribunal's classification of the vitamin preparations and the garcinia preparations under heading 3004. By grant of special leave, the Comptroller-General appealed to the High Court.

 The High Court has unanimously found that although the Tribunal made an error of law (in considering that the vitamin preparations and the garcinia preparations had to answer the description not just of "food supplements" but also of "[f]oods" in order to be excluded from heading 3004 by Note 1(a) to Ch 30) the Tribunal was correct in law in independently concluding that the preparations fell outside the description of "food supplements".

 The High Court further held that the Tribunal did not wrongly equate the expression "food preparations" in heading 2106 with the expressions "[f]oods" or "food supplements" in Note 1(a).