Pharmacare

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).

DNA Forensic Databases and Big Data

'DNA Databases and Big Data' by Helena Machado and Rafaela Granja in Forensic Genetics in the Governance of Crime (Springer, 2020) 57-70 comments

 Criminal DNA databases are expanding in different regions of the world to support the activities of the criminal justice system. The use of techniques that combine different sources of digital information for preventing and anticipating the risk of crime (one of the potential uses of so-called Big Data) is increasingly seen as a promising strategy to govern crime. This chapter provides an overview of the development of technological systems orientated towards genetic surveillance of criminalized populations. It also outlines a comprehensive mapping of the main ethical, social and political challenges related to the growing uses of DNA databases and Big Data at a global scale.

 The authors argue

Forensic genetics has become a significant resource for criminal investigation and evidence-gathering activities for court proceedings in judicial systems around the world (Hindmarsh and Prainsack, 2010). One of the most prominent aspects of the use of forensic genetics in the criminal justice system is the creation and expansion of centralized national databases that contain genetic profiles that are inserted and stored in function of criteria defined in the legislation of each country (Santos, Machado and Silva, 2013). These databases may contain genetic profiles of convicted persons, suspects, victims, volunteers and other persons of interest, in order to conduct criminal investigations. 

A database provides a matrix of genetic profiles based on biological samples collected from a set of individuals. In the context of a pending criminal investigation, traces found in the crime scene or on the victim’s body may be analysed and the resulting DNA profiles will be compared with those included in the genetic forensic database, thus making it possible to identify the origin of this vestige, in the event of a positive match. 

The process of creating forensic databases with genetic profiles began in the mid-1990s. The first forensic genetic database was set up in England and Wales in 1995, and countries such as the Netherlands (1997), Austria (1997) and Germany (1998) followed suit. It is estimated that there are now 69 countries around the world operating this type of database and that at least 34 countries are starting the process of implementing their own database (Interpol, 2016; Prainsack and Aronson, 2015). Such databases exist in different regions of the world, especially in Europe and North America: however, recent developments point to growing expansion in Asia, in particular in China, India and South Korea (Forensic Genetics Policy Initiative, 2017). 

The creation of databases to support criminal investigation is aligned with the social, economic and political context of the so-called information society, which many authors consider to be a society of maximum surveillance that began to emerge in the mid-1980s (Boersma, Van Brakel, Fonio and Wagenaar, 2014; Garland, 2001; Lyon, 1992, 2006; Marx, 2002; Norris and Armstrong, 1999). The phenomenon of Big Data emerges in the context of technological development and the growing importance of the digital world, which is associated with large-scale collection of citizens’ data. It can be defined as a technique that aggregates and analyses a massive amount of data, converting it into algorithms, numerically categorized and identified by employing a calculated index, from which information may be extracted. The technique can be applied in several spheres of social life, including commerce, consumption, health, social security, marketing and immigration. In the context of this book, the authors will pay careful attention to expectations associated to the potential of applying Big Data in the fields of criminal investigation and security (Brayne, 2017; Chan and Moses, 2015, 2017; Tsianos & Kuster, 2016). The complexities and challenges arising from the use of forensic DNA databases and Big Data in the context of criminal investigation will be presented and briefly discussed in the different sections of this chapter.