PMCH Review

The review of the Protection of Movable Cultural Heritage Act 1986 (Cth) is now mid-way.

In announcing the review last month the Attorney-General stated that the Act

protects Australia’s movable cultural heritage and provides for the return of foreign cultural property which has been illegally exported from its country of origin and imported into Australia. It gives effect to Australia’s agreement to the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970. 

The Protection of Movable Cultural Heritage Act 1986 has not been significantly amended since its enactment, and the scope of the proposed Review is therefore intentionally broad. It will consider the existing framework for the protection of movable cultural heritage material in Australia, as set out in the Protection of Movable Cultural Heritage Act 1986 and the Protection of Movable Cultural Heritage Regulations 1987. 

The Review will focus on the appropriate settings for protection and regulation in this area, and explore other, similar protection schemes in Australia and other international models for the protection of cultural property: 

Which objects are protected, including having regard to the following:

• What are the categories and types of Australian cultural objects which should be protected via regulation? 

• What are the appropriate thresholds and definitions of significance? 

• What levels of protection should be extended to foreign material?

 How Australia’s international obligations are fulfilled, including having regard to the following: 

• How Australia implements the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970; 

• How this scheme interacts with the obligations under the UNESCO Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict 1956; and 

• Whether there are other international conventions or practices which provide useful benchmarks or guidance?

How this protection is administered, including having regard to the following:

• What is the most effective framework for protecting Australia’s cultural heritage? 

• How are decisions regarding specific objects best made? 

• How is the scheme best enforced?

The Review may also examine and report on any other issues considered relevant or incidental, and will consult with stakeholders as is thought necessary. It will report to the Australian Government Minister for the Arts by 30 September 2015.

Genomics, Property and Privacy

'Privacy, Personhood, and Property in the Age of Genomics' by Wendy Bonython and Bruce Baer Arnold in (2015) 4(3) Laws 377-412 comments

Revolutions in genetic technology have heralded the age of population-scale genomic metadata. This article analyzes the tensions and gaps between traditional conceptions of personhood and international legal responses to a person’s right over disembodied data obtained from his/her body. The opportunities for breakthroughs in healthcare by interrogating population-scale genomic databases are accompanied by questions about privacy, property, dignity, and the nature of information regulation in a global economy. This article highlights instances where law and policy makers have grappled with these challenges, and foreshadows some emerging future challenges. It also highlights differences between jurisdictions, and calls for greater global participation in the development of a coherent framework, rather than continued reliance on a small number of stakeholders, to develop that framework.

Credit Referencing

'Pre-Modern Credit Networks and the Limits of Reputation' by Emily Kadens in (2015) 100 Iowa Law Review examines

pre-modern European credit networks to question a fundamental assumption of private ordering scholarship that a good reputation is so critical to the functioning of a private system that its maintenance incentivizes members of the community to keep their promises and act honestly. Pre-modern credit networks, which involved the whole society in interlocking webs of credit and debt, arose from the actions of individuals who offset the lack of sufficient specie by inventing credit mechanisms to solve the problem of purchase and sale. Governments played little to no role in creating these solutions. Reputation, to some extent, did drive lending decisions, but reputation did not reliably parallel a good history of timely repayment. Default, it turns out, was not a simple binary concept in the past, and, consequently, neither were the decisions about extending credit. The article argues that reputation, or at least reputation in the sense we might understand it today, did not bear quite the weight which private ordering theory assigns to it. This appears to be due in part to a more expansive pre-modern sense of what it meant to keep a promise, in part to the role of higher-level notions of confidence and reciprocity that transcended individual debtors to encompass whole communities of lenders and borrowers, and in part to the availability of public institutions, both lay and ecclesiastical, to sanction nonpaying debtors.

Family Law and Child Protection

The Family Law Council 144 page interim report into Families with Complex Needs and the Intersection of the Family Law and Child Protection Systems has been released by the national Attorney-General.

The report was commissioned in October last year

in response to increasing concerns about the parallel operation of the federal family law and state and territory child protection and family violence systems, and how that parallel operation may inadvertently contribute to greater risks for those affected by family violence and other complex needs.

The Attorney-General comments

The Council has provided a detailed and thoughtful report to Government on the first two terms of the reference. The report addresses the prospect of having a more streamlined, coherent and integrated approach to improve the overall safety of families and in particular children, when involved in the family law, child protection and family violence jurisdictions.  

I look forward to receiving the Council’s full report in June 2016. It will advise me on issues concerning enhanced collaboration and information sharing between the family courts and family relationship services as well as other relevant support services such as child protection, mental health, family violence, drug and alcohol, Aboriginal and Torres Strait Islander and migrant settlement services.

The report notes

At the outset, Council notes the significant commitment to improving the interface between the family law, child protection and family violence systems across the organisations, services and individuals who contributed to this reference. Council also notes the complexities of this endeavour and that some stakeholders supported a measured approach to creating a more integrated system for children and families. At the same time, Council is aware of the urgency of the task, and that many of those who assisted Council in its work on this report regard this matter as an issue that should be given priority by all governments in Australia. Council also notes the concern that any reforms should be adequately resourced.  

The remainder of this chapter provides an overview of the empirical and practice context for the issues discussed in this report. This includes a description of recent developments affecting the family law system (at 1.1), followed by descriptions of the law and practice governing children's courts and child protection matters in Australia (at 1.2) and the law and practice governing parenting matters in the family law system (at 1.3). The final section of this chapter describes a recent reform proposal in Western Australia to enhance collaboration between the child protection and family law systems in that state (at 1.4).  

Chapter 2 focuses on question 1 of the terms of reference, which asks Council to report on the legal and practical obstacles to greater co-operation between the family law and child protection systems. This chapter draws on the submissions and consultations to describe the key areas of intersection and gaps between these systems, and the difficulties experienced by families and services associated with these circumstances. This chapter also examines the capacity for transferring proceedings between the federal family courts and state and territory children's courts and the legal and practical limitations of this approach as a solution to the problems described by stakeholders.  

Chapters 3 and 4 focus on the second question of Council’s terms of reference about the capacity for providing the children's courts and family courts with a measure of co-extensive jurisdiction, and the benefits and challenges of doing so.  

Chapter 5 draws on the submissions and consultations to explore the possibilities for creating specialist multi-jurisdiction family violence courts based on the principle of ‘one family, one judge’. This chapter also provides a description of the practice and policy context governing the making of family violence protection orders by state and territory magistrates courts, which are often the first point of contact with the legal system for families with complex needs.  

Chapter 6 draws on the submissions and consultations to canvass ways in which the working relationships between the child protection and family law systems might be improved within current jurisdictional frameworks. This chapter explores areas of effective and promising practice and ideas for enhancing the integration of services across the different systems.  

Chapter 7 sets out Council’s views and preliminary recommendations about these issues.

Fertility, Disability and Discrimination

'Societal Disregard for the Needs of the Infertile' by David Orentlicher in the forthcoming Oxford Handbook of Reproductive Ethics comments -

Social policies in the United States often favor families and encourage reproduction — but not for infertile persons. When the infertile want to have children, health care funding policy, legal rules, and popular sentiments generally are not very sympathetic. Infertile couples typically must rely on their own resources to procreate, without reimbursement by their health insurance, the law may erect barriers to assisted reproductive services, as with prohibitions against surrogate motherhood, and infertile couples may not find much concern for their plight from friends or even some family members. 

Such discounting of the needs of the infertile is unjust and reflects a misunderstanding of the nature of infertility. Infertility is a disability — and a very serious one for some people — yet it is often misperceived as not a real handicap or even as enabling. Scholars writing on reproductive issues frequently valorize life without children. These societal sentiments are reflected in anti-discrimination law. The protections that persons with other disabilities enjoy do not extend to the infertile. Respect for the fundamental interest in reproduction justifies changes in social attitudes and reforms in the law to ensure fair treatment for the infertile.

Orentlicher goes on to comment -

Public policy in the United States gives insufficient attention to the interests of infertile persons because infertility does not seem to be viewed as a serious enough problem. 

Rather than viewing infertility as a significant disability and infertile persons as deserving assistance in their efforts to procreate, many Americans dismiss the idea that infertility is disabling. To be sure, as discussed below, the law will protect infertile people from some forms of discrimination. For example, if an employer refused to hire an infertile person, the Americans with Disabilities Act would make the employer’s refusal unlawful. But that is not the kind of discrimination that infertile persons face. 

Rather, they face barriers to receiving medical treatment that will overcome their infertility, barriers that people with other medical problems do not face. And these barriers reflect a common view that being infertile is not really disabling. 

There is much evidence for the view that people do not see infertility as really disabling in the way emphysema, heart disease, paraplegia, or blindness is seen as disabling, that fertile persons frequently dismiss the idea that infertility is a significant problem. Before discussing the evidence, I will explain why infertility is a disability. … “Disability” refers to the existence of substantial limitations on a person’s “major life activities.” 

Major life activities include functions like seeing, hearing, walking, speaking, learning, and working. Commonly, disability is caused by an impairment, which is defined as a “physical or mental anomaly.” If a person has the impairment of paralyzed legs, then the person is disabled with respect to the major life activity of walking. A person with the impairment of advanced emphysema may be disabled with respect to the major life activities of walking or working. Infertile persons generally meet the definition of a disability because they have an impairment of their reproductive tracts that substantially limits the major life activity of procreation. Having children is an interest of fundamental importance to many people; for many people, it is the most important endeavor they undertake in their lives. Indeed, it would be odd to identify working at a job as a major life activity but not similarly recognize bearing and raising children as a major life activity. Because of the central role that reproduction plays in the lives of so many individuals, the Supreme Court has held both that procreation is a constitutionally-protected right and that reproduction is a major life activity. 

To be sure, some would argue that infertility is an inevitable result of aging and therefore represents a natural state, not a disabling condition. But many infertile persons are of normal childbearing age and have lost their reproductive capacity through illness or injury. Moreover, many well-recognized disabilities, including osteoporosis, are a common result of ageing. If we are willing to provide hip replacements for seniors with reduced bone density to overcome their disabilities, we also should be willing to provide treatments to people with infertility to overcome that disability. 

Infertility has psychological, as well as physical, implications — the emotional impact of infertility can be substantial, particularly for women. For people who want to reproduce, but cannot, the loss can be devastating … 

Infertility is not seen as disabling Despite the disabling nature of infertility, it often is not seen as disabling. Studies of infertile couples by academic scholars are illustrative. For example, in her research on infertility, Elizabeth Britt found that “the infertile often feel as if the seriousness of their condition is trivialized.” Disclosure of infertility might elicit “jokes about the couple not knowing how to have sex or about the fun the couple must be having trying to conceive a child.” Other people “might suggest that infertility is a blessing in disguise” or that it is not as bad as other medical conditions since reproduction “supposedly is so optional.” Or they might say something like, “Oh well, so what so you don’t have to have a baby, so what, just adopt.” 

Margarete Sandelowski found that infertility “is too often dismissed as an unfortunate physical impairment, but one perfectly compatible with good health and life.” An infertile woman might be reminded that there are far worse problems, and be told by relatives that, “‘At least you’ve got a nice husband and a nice house and plenty of food. . . . At least you don’t have cancer.’” Couples in her study of infertility “complained that infertility was not viewed as a ‘serious disease’ worthy of the resources people afflicted with other diseases can get.” Similarly, Arthur Greil found from his interviews with infertile couples that they criticized fertile people for “treating the plight of the infertile as if trivial and inconsequential.” 

The infertile also were troubled that fertile individuals “acted as if . . . infertility were a small and relatively easy problem to solve.” As one woman reported, her friends might say, “‘Why don’t you go on a cruise?’ Or ‘Why don’t you just relax? And then you’ll get pregnant.’” According to Greil, infertile couples do not feel like they are viewed as inferior because of their infertility. Rather, the discrimination they feel arises out of a “failure of others to acknowledge the seriousness of infertility.” In one typical remark, an infertile person observed, “I think [fertile people] discriminate by making light of the problem.” 

Discussion of IVF by legal and other scholars also indicates that infertility may not be seen as a real disability. In the constitutional context, law professors Carl Coleman and Radhika Rao have considered whether a ban on access to IVF or other infertility treatments would violate an infertile couple’s constitutional right to procreate. Both of them quickly dismiss the interests of infertile couples in constitutional protection and conclude that restrictions on access to infertility treatments would be constitutionally valid.  In his analysis, Coleman observes that the Constitution cannot protect every interest that people assert as deeply important to them and gives the smoking of marijuana as an example of an asserted interest that should not be given constitutional protection. 

The idea that the desire to have children and the desire to smoke marijuana are comparable is troubling. Or consider an argument against IVF that biology professor Ruth Hubbard articulated in the early days of assisted reproduction. In response to the view that women have a right to bear children, Hubbard wrote that it “had never occurred to [her] that every woman has a right to bear a baby any more than that every woman has a ‘right’ to a 34 inch bustline or a 24 inch waist.”  Hubbard went on to acknowledge that many women genuinely suffer from their inability to have children but that the answer is not to provide IVF, which she viewed “to be a path to disaster, ”but to engage in “strong, deep, feminist, consciousness raising.” 

Anthropology professor Eric Hirsch reported a similar perspective from a British woman who participated in his discussions of assisted reproduction. As Hirsch described it, the woman worried that “children just become the next thing in the long list of material possessions one is supposed to have.” Or as the woman put it, “it’s like you get a car, a dishwasher and then a dog and then you think what next.” 

The view that infertile couples are selfish and materialistic is a common one.   Some scholars are even harsher in their critiques of women who pursue assisted reproductive technologies. A number of feminist writers have rejected the possibility that an infertile woman’s desire to reproduce reflects a genuine expression of autonomy and instead attributed the desire to “nothing more than the result of the patriarchal mandate that she reproduce.” Not only do these scholars deny the authenticity of the infertile woman’s desire to procreate, they also portray her efforts to reproduce as harmful to other, poorer women — when the privileged woman under takes expensive assisted reproduction treatments, she depletes resources that could be used to meet basic health care needs of underprivileged women.  Moreover, it is argued, infertile women are racist, eugenic, and selfish when they exhibit a preference for a white, biologically-related, infant over an orphaned, older, minority child — even though fertile couples exhibit the same preferences.

Money

'$=€=Bitcoin?' by Hilary J. Allen comments 

Bitcoin (and other virtual currencies) have the potential to revolutionize the way that payments are processed, but only if they become ubiquitous. At that scale, this Article argues that virtual currencies would pose threats to the stability of the financial system – threats that have been largely unexplored to date. Such threats will arise because the ability of a virtual currency to function as money is very fragile – Bitcoin can remain money only for so long as people have confidence that it will be readily accepted by others as a means of payment. Unlike the U.S. dollar, which is backed by both a national government and a central bank, and the euro, which is at least backed by a central bank, there is no institution that can shore up confidence in Bitcoin in the event of a panic. 

The law is very limited in its ability to contain either the development of virtual currencies, or the fragilities they may introduce into the financial system. While this Article explores some regulatory measures that might mitigate the systemic risks posed by virtual currencies, the only real way to contain such risks is for regulated banks to outcompete virtual currencies by offering better payment services, thus consigning virtual currencies to a niche role in the economy. This Article therefore concludes by exploring how the distributed ledger technology pioneered by Bitcoin could be stripped from the virtual currency and adapted to allow regulated banks to provide vastly more efficient payment services.

Productivity Commission review of Australia's IP regime

The Treasurer has requested the Productivity Commission to undertake an inquiry "into Australia's intellectual property arrangements, including their effect on investment, competition, trade, innovation and consumer welfare".

The review is to be completed within a year. The Commission is to "undertake an appropriate public consultation process, inviting public submissions and releasing a draft report to the public".

A skeptic would be forgiven for thinking that the inquiry is an ailing Government's effort to sidestep contentious copyright and patent disputes as we head towards the election. I've elsewhere savoured the irony of the Commission being handed the Treasurer's hot potato, given the Commission's hard-headed and persuasive wariness about 'magical Free trade agreements such as the TPPA. The ARLC is over-extended and the Government abolished the inconvenient Advisory Council on Intellectual Property last year

The Treasurer states that

Australia provides statutory protection for intellectual property through patents, trade marks, geographical indications, registered designs, plant breeders' rights, copyright, moral rights, performers' rights and circuit layout rights. Current laws are consistent with treaties under the auspices of the World Trade Organization, the World Intellectual Property Organization and the World Health Organization to which Australia has acceded, as well as bilateral and regional trade agreements.

The global economy and technology are changing and there have been increases in the scope and duration of intellectual property protection. The Australian Government seeks to ensure that the appropriate balance exists between incentives for innovation and investment and the interests of both individuals and businesses, including small businesses, in accessing ideas and products.

The Terms of Reference indicate that

The Australian Government wishes to ensure that the intellectual property system provides appropriate incentives for innovation, investment and the production of creative works while ensuring it does not unreasonably impede further innovation, competition, investment and access to goods and services.

In undertaking the inquiry, the Commission should:

• examine the effect of the scope and duration of protection afforded by Australia's intellectual property system on: research and innovation, including freedom to build on existing innovation access to and cost of goods and services competition, trade and investment. 

• recommend changes to the current system that would improve the overall wellbeing of Australian society, which take account of Australia's international trade obligations, including changes that would:

• encourage creativity, investment and new innovation by individuals, businesses and through collaboration while not unduly restricting access to technologies and creative works 

• allow access to an increased range of quality and value goods and services provide greater certainty to individuals and businesses as to whether they are likely to infringe the intellectual property rights of others

• reduce the compliance and administrative costs associated with intellectual property rules.

In undertaking the inquiry and proposing changes, the Commission is to have regard to:

• Australia's international arrangements, including obligations accepted under bilateral, multilateral and regional trade agreements to which Australia is a party

• the IP arrangements of Australia's top intellectual property trading partners and the experiences of these and other advanced economies in reforming their IP systems to ensure those systems meet the needs of the modern economy 

• the relative contribution of imported and domestically produced intellectual property to the Australian economy, for example to Australia's terms of trade and other economic impacts of IP protection, including on inward investment 

• the Government's desire to retain appropriate incentives for innovation and investment, including innovation that builds on existing work, and production of creative works 

• the economy-wide and distributional consequences of recommendations on changes to the existing intellectual property system, including on trade and competition 

• ensuring the intellectual property system will be efficient, effective and robust through time, in light of economic and technological changes 

• how proposed changes fit with, or may require changes to, other existing regulation or forms of assistance (such as research subsidies) currently providing incentives for the development of intellectual property 

• the findings and recommendations of the Harper Competition Policy Review in the context of the Australian Government's response, including recommendations related to parallel import restrictions in the Copyright Act 1968 and the parallel importation defence under the Trade Marks Act 1995 

• the findings and recommendations of the Advisory Council on Intellectual Property's Review of the Innovation Patent System, the Senate Economics References Committee's inquiry into Australia's innovation system, the Australian Law Reform Commission's Copyright and the Digital Economy report.