The Brief Edition 2 2019

Macquarie University Law Society magazine Edition 2, 2019 (Volume 25)

Looking Inwards

Sponsors

Contents Features

16 19 22 24

When Healthcare is Weaponised Anjali Nadaradjane Genetic Law Tessia Tan Commercial Surrogacy Matilda Bryne

26 28 36

Animal Testing Juwariya Malik A Stem Cell Controversy Avnoor Guron Mental Health for Lawyers Special

The CSI Effect Katerina Poulos

Regulars

6 6 8 10 12

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What’s New in the Law? Carlie Moses

30

Social Justice Corner: Bullying and Harassment Anushiya Achudhan

32

Under the Radar: The Venezuelan Health Crisis Shivani Srivastava

34

A Brief Conversation: Cindy Penrose, CEO of the Australian Bar Association Emalee Walker

37

Postcard from Abroad: Singapore Isabelle Messenger A Brief Review: Three Billboards Outside Ebbing, Missouri’ Kirk Gehri Where To From Here?

Life After Death Casey Thomas Briefly, Global: Reframing An International Right To Health Brayden Winkler

Devil’s Advocate: DNA Sequencing Annie Renouf & Samantha Marshall

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thebrief.muls.org Edition 2, May 2019 (Volumn 25) EDITOR-IN-CHIEF Emalee Walker

DIRECTOR OF PUBLICATIONS Michael Graziano DESIGNER Nathan Li

WRITERS (IN ALPHABETICAL ORDER) Anjali Nadaradjane, Annie Renouf,

Anushiya Achudhan, Avnoor Guron, Brayden Winkler, Carlie Moses,

Casey Thomas, Isabelle Messenger,

Juwariya Malik, Katerina Poulos, Kirk Gehri, Matilda Byrne, Samantha Marshall, Shivani Srivastava, Tessia Tan. SUB-EDITORS

Angela Dela Cruz, Beth Jones,

Carla-Rose Brett, Ellen Brown, Georgia Gow, Layla Hessar-Amiri, Lily Davies.

EDITORIAL REVIEW

Michael Graziano, Director of Publications IMAGES

Shuttershock unless otherwise stated.

The Brief’s print edition is published three times

a year by the Macquarie University Law Society, Sydney Australia.

Visit our website at thebrief.muls.org.

DISCLAIMER

All views expressed herein are those of the

individual authors and do not reflect, in any

way, the attitude of the Macquarie University Law Society. The Macquarie University Law Society does not accept any responsibility

for the losses flowing from the publication of material in The Brief.

Editor’s Welcome Dear readers, It seems that each day we hear of a new development in technologies that impact on our bodies, our minds, our way of being. All of these raise ethical issues for society and individuals.

For us, as law students about to enter the legal profession, this edition of The Brief looks into these new frontiers and considers how our legal system manages the dilemmas that these technologies may raise. The articles challenge each of us to consider what is ‘right’, what is for the greater good, and what place the law should take in these decisions. There is no easy answer in this, and we hope that you find this edition thought provoking and a platform for further discussion with your fellow students and dinner party conversationalists.

We are grateful to the writers who had to consider these issues from various angles, to produce well argued pieces that call us to make wise and informed decisions in this emerging area of the law.

Beyond technology, our mental health is in fact, what gets us through the day. Cindy Penrose, the CEO of the Australian Bar Association and board member of Minds Count, reflects on her experience of working at maintaining her mental health within the legal profession, and encourages us all to make our own mental health a priority.

So enjoy this edition and enjoy your holidays!

Emalee Walker | Editor-in-Chief

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MULS EVENTS Education O-Week Semester 2: Legal Study Skills Workshop Date: TBA

President’s Welcome Dear Readers, This edition of The Brief focuses on topical issues of health, medicine, wellbeing and the law.

These affect us at all stages of our lives and is one of the most rapidly changing areas of policy and legislation. With a growing global population, issues surrounding matters such as genes, stem cells and universal healthcare permeate our society. I hope that you discover something new while reading this edition of The Brief and I thank the contributors for once again producing such high quality articles and thought provoking pieces.

Matthew Harris | President

Westlaw Legal Research Workshop Early August (Date TBA) Social Justice How to Adult 101 – Will It Your Way 14 August 2019 Practical Workshop 26 August 2019 (TBC) Trivia Night 13 September 2019 Mental Health Month: October Social justice Speaker Night II 3 October 2019 Publications Careers Guide 18 September 2019 The Education Guide 6 October 2019 The Brief Edition 3 16 October 2019 Events Law Revue 30-31 August; 4-7 September 2019 Law Ball 11 October 2019

Some of the issues raised may cause concerns. If you or a loved one is in need of support, you are not alone. Please contact Lifeline on 13 11 14 or Beyond Blue on 1300 224 636.

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Sport NSWYL InterVarsity Sports Gala Day Sunday 8 September 2019 Semester 2 Social Sport Competition August to November 2019 (NB: registration opens in July)

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What’s New

in the Law Carlie Moses Aged Care Quality and Safety Commission Act 2018 (Cth) This Act came into effect on 1 January 2019 to establish the Aged Care Quality and Safety Commission and the Aged Care Quality and Safety Advisory Council. These bodies are responsible for enhancing the safety, health, well-being and quality of life of aged care consumers. This is done in a number of ways, for example, by reviewing complaints, regulating aged care, and providing education.

National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth) This Act came into effect on 1 July 2018 and establishes the National Redress Scheme for Institutional Child Sexual Abuse. This scheme aims to provide redress for the survivors of past institutional child sexual abuse. The abuse experienced must fall within the scope of the scheme subject to section 14 of the Act. Section 16 of the Act also states a further criterion relating to an individual’s eligibility for redress. Redress is in the form of payment of up to $150,000, counselling payments of up to $5,000 and a direct response from the institution.

National Housing Finance and Investment Corporation Act 2018 (Cth) This Act came into effect on 30 June 2018 and established the National Housing Finance and Investment Corporation. This Corporation is under the direction of the Investment Mandate and is responsible for improving housing outcomes by creating loans, investments and grants, and creating the terms and conditions for these items. The Corporation also 6 | The Brief

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Bullying and harassment:

a toxic culture which needs to be addressed Anushiya Achudhan

F

rom the playground to parliament, bullying exists in every facet of society. Technology and poor examples of leadership have been conducive to bullying and harassment on micro and macro levels of society, fostering a culture which forces people out of their professions and harms the reputations of many.

Parents and pupil bullying Although children are often the targets and victims of bullying in schools, an often-overlooked victim of bullying is the classroom teacher. In a 2019 report from La Trobe University, around 80% of teachers reported to have experienced some form of bulling or harassment by a student or parent over the past nine to 12 months, with verbal aggression the most commonly encountered form of bulling and harassment experienced. It has been proposed that one solution to this problem is to develop a mandatory code of conduct for parents and students to be instituted across all Australian schools with penalties for breaches.

Sexual harassment in the workplace Under Division 3 of the Sex Discrimination Act 1984 (Cth), sexual harassment is unlawful in areas including employment, education, and the provision of goods and services. However, despite being Ed.2 2019

Social Justice Corner

outlawed for over 25 years, sexual with murder and rape when they “In 2018, a national harassment remains a problem in spoke out about the treatment of survey investigated Australia. In 2018, a national survey women in the gaming industry. the nature, prevalence, investigated the nature, prevalence, Research conducted by the and reporting of and reporting of sexual harassment Australian Institute Think Tank sexual harassment in in Australian workplaces, finding found that many people have Australian workplaces, been ‘doxed,’ including having that sexual harassment continues finding that sexual to be a major problem. It was their personal details published found that 39% of Australian harassment continues to intimidate them (5%), or being women and 26% of Australian men to be a major problem.” impersonated online to damage have been sexually harassed at their reputation or careers (both work in the past five years, with men being the most 4%). It is obvious that this issue not only raises frequent perpetrators. However, formal reporting privacy concerns and damages career prospects, of workplace sexual harassment is still low, with but it also has long-term impacts on individuals’ only 17% of people making a report or lodging a mental health. complaint. A lack of formal reporting is consistent Section 474.17 of the Criminal Code Act 2005 with the fear and scepticism surrounding whether (Cth) makes it an offence to menace, harass or complaining will help, or whether it may cause offend someone using a carriage service, such as the damage to an individual’s career. internet. However, since these are federal laws, there can be some jurisdictional issues and gaps in training The weaponization of personal information that make it difficult for state police to respond to The intimidation technique labelled ‘doxxing’ (an cyber harassment. The introduction of state-specific abbreviation for ‘dropping documents’), gained its legislation to make doxxing illegal would assist NSW prominence as a weapon against law enforcement police in dealing with online harassment. when it was first deployed by hacktivist group Evidently, Australia’s laws need to keep up with ‘Anonymous’ in 2011. The technique refers to the advent of new technologies in order to hold the collecting and broadcasting of an individual’s people accountable for new and existing forms personal details on the internet to harass him or her of bullying and harassment. Similarly, individuals in front of a hostile digital audience. Online trolls use need to pull their own weight and empathise with doxxing to intimidate those who share different and others’ opinions and understand the impact of their contentious opinions on issues which do not align words and actions on others’ lives, both behind the with their own. In 2014’s #GamerGate controversy, keyboard and on a face-to-face level. In other words, female gamers had their personal details (including we need to address the toxic culture of bullying and home addresses) posted online and were threatened harassment we have forced upon ourselves.

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>> Continues from page 6

Under the Radar

has the role of delivering business advisory services and providing financial assistance to States and Territories to fulfil these responsibilities.

Pintarich v Deputy Commissioner of Taxation [2018] FCAFC 79 In Pintarich v Deputy Commissioner of Taxation, a delegate of the Deputy Commissioner for Taxation had put information into a computer-based ‘template bulk issue letter’ which generated a letter to Mr Pintarich remitting a significant portion of his tax liability and requesting a lump sum payment be made. This letter was not reviewed by the Deputy Commissioner. Upon receipt of the letter, Mr Pintarich paid the lump sum. After payment was made, a second Deputy Commissioner advised that the request for full remission of tax liability had been denied. The issue discussed was whether the letter constituted a ‘decision’ by the Deputy Commissioner. The majority held that a ‘decision’ consists of two components: (a) a mental process of reaching the decision; and (b) an objective manifestation of that conclusion. As the Deputy Commissioner had no mental process in the creation of the letter, the letter did not constitute a decision and the Deputy was not bound by it.

Bankruptcy Amendment (Debt Agreement Reform) Act 2018 (Cth) This Act came into effect on 27 June 2019, aiming to improve transparency, deterring wrongful behaviour and creating a more accessible debt agreement system. This will be achieved by identifying authorised persons to administer debt agreements, with the required qualification and registration standards. The Act also introduces processes in relation to the content, length, variation, termination and voiding of debt agreements, as well as amending the process for unclaimed monies.

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The

Venezuelan Health Crisis Shivani Srivastava

A

midst a political and economic crisis, the healthcare system of Venezuela is suffering.

Venezuelans are experiencing the very palpable devastation of their health care system whose roots began in 2012 after the Venezuelan economic collapse of 2010. Hospitals in Venezuela are finding themselves short-staffed and poorly resourced, Venezuelans are dying of preventable diseases as many Venezuelans flee the country in search of better healthcare. Maternal and infant mortality rates have surged by 65% and 30% respectively in 2016 and approximately 87% of HIV patients are not receiving regular treatment. Instances Ed.2 2019

“Approximately 53% of Venezuelan operating medical theatres are now closed, 71% of emergency rooms could not provide regular services and 79% of hospitals are lacking a reliable water supply.”

of Malaria increased in 2017 by 69% with 406,000 cases reported in the one year. Preventable diseases such as diphtheria and measles, after having very few to no cases in the past decade, have resurfaced in the thousands. In 2017, the Venezuelan government stopped publishing health statistics in the country, and it is becoming increasingly difficult to gauge the true extent of the health crisis in Venezuela.

Venezuelan patients are required to bring their own food, syringes, scalpels and for many, their own soap water to sterilise hospital equipment.

In addition to the health crisis, Venezuela suffers political instability as current President Maduro battles self-declared interim President Juan Guaido.

Guaido stresses the need for international aid during the crisis, whilst President Maduro promises a health care reform, fervently denouncing the need for international aid. Maduro has repeatedly rejected international aid, in his hard stance he has most recently blocked access road access, preventing U.S. convoys from reaching the country with medical supplies. Maduro claimed in an open letter to the White House that the U.S. aid is a ruse to invade Venezuela in the name of ‘freedom and democracy’.

In addition to this ‘perfect storm’, severe droughts are causing Venezuelans to store water, which has led to increases of contaminated water diseases and mosquito borne viruses such as dengue, Zika Ed.2 2019

and malaria. From 2012-2017, approximately half of all Venezuelan medical professionals have left the country, adding additional pressure to the broken system. Approximately 53% of Venezuelan operating medical theatres are now closed, 71% of emergency rooms could not provide regular services and 79% of hospitals are lacking a reliable water supply.

Venezuela’s health crisis is not theirs alone.

Up to 3 million refugees and migrants had left the country, with many citing the healthcare devastation in Venezuela as the reason. Many are fleeing to their neighbouring countries which are better adapted to handle the virus. Unfortunately, many mosquito borne diseases such as dengue fever thrive in these conditions and can be carried without exhibiting any symptoms. The World Health Organization reported that Venezuelan malaria outbreaks accounted for 84% of malaria outbreaks in Latin America. Diseases know no geographical boundaries, and the trials and tribulations in Venezuela would not be restricted as such. Many Latin American countries recognise these effects and are urging Maduro to step down to allow for aid to flow into the country. Despite Maduro’s firm stance on denying international assistance, U.S. medical aid convoys remain in Cucuta, Colombia, negotiating with Venezuelan opposition leaders for entry into the country. The United Nations has organised to fund Venezuela’s neighbouring countries such as Colombia, Ecuador and Peru to assist in their efforts to facilitate Venezuela’s vulnerable populations, however the fund aiming for $738 million has received only $5 million. Experts are asking the United Nations to declare the situation in Venezuela as a full-scale humanitarian emergency, while Maduro rejects foreign aid, the health crisis worsens. Many Venezuelan medical staff are urging for international aid and attention. The healthcare crisis affects millions and has already started to evolve into a hemispheric health crisis. thebrief.muls.org | 9

A Brief Conversation

Cindy Penrose

With , CEO of the Australian Bar Association, about

Wellbeing in the Legal Profession

F

Emalee Walker

or us to thrive, achieve our goals, and sustain our successes, we need to be mindful of our individual wellbeing in that process. Yet in the legal profession, we can sometimes neglect looking after ourselves, letting work take priority. The statistics of lawyers suffering from mental ill health show that one in three per year contemplate suicide, and approximately 30% suffer from clinical depression.

The profession is often over-worked, underacknowledged and competitive. As law students, we are trained to identify problems, which can spill over into our whole lives with a negative effect. We face the pressures and worry about finding jobs, clerkships and internships. This can result in our wellbeing being damaged, and taking care of our mental health can be our last priority. With the many challenges facing law students and the profession, we need to develop strategies to care for ourselves, care for our colleagues and care for our firms.

I met with Ms. Cindy Penrose, who is the CEO of the Australian Bar Association and Director of Minds Count Foundation, to discuss with her some of the leading issues in the profession, and the challenges of facing and dealing with poor wellbeing. A positive approach to looking after our mental health, is actively recognising that we are a person first and a lawyer second.

Cindy has worked in a number of areas within the legal profession, all with stressful elements.

10 | The Brief

Cindy has consciously been aware of the impact of her work on her own wellbeing and looking after her mental health. Part of that included prioritising experiences that go beyond work and beyond the law. Cindy spent a year in Graz, Austria, studying on scholarship and working with the then Commissioner for the United Nations Prevention of Torture, which not only was an invaluable experience in terms of meeting new people and opening her eyes to how law operates, but it also sparked her human rights interest which is still strong within her. The experience helped her when she returned to Australia to be able to recognise that she did not want to work in a big firm, but rather work on policy and law reform with various committees at the NSW Bar Association.

Following this work, Cindy practiced law and worked at legal aid and a criminal defence firm. She also lectured at the University of Western Sydney on criminal law and with the Defence Abuse Taskforce into sexual abuse in the defence force. Dealing with trauma is a very real part of some lawyers’ practice, and lawyers can also suffer the trauma vicariously through the particular matters and people for whom they act. Lawyers can suffer direct trauma because of significant volumes of work, high pressure outcomes and tensions within firms to perform. With these challenges comes a great deal of pressure, stress and consequently; strain on our mental health.

Cindy delivered the keynote address at the Tasmanian Women Lawyers Gala in 2018, which Ed.2 2019

showed her passion and sincerity for the issue and highlighted the mental health issues within the profession. She made reference to situations where she had attended ‘to a judge in Hyde Park who had self-harmed, or sitting with Senior Counsel who was harassed by media outside his house, even though he was just doing his job as a criminal defence barrister, or friend at the Bar who could not face another family court proceeding where she removed children and had found the tree she wanted to drive her car into. Cindy stresses that it is important that we are ‘ourselves first, then the son or daughter of… or the mother of… and then you are lawyer’. Identifying so strongly as a lawyer can become all-consuming after a period of time in the profession and can have negative and lasting effects our mental health.

One of the biggest challenges facing the profession is perfectionism. ‘We all want to be perfect; that perfect advice, perfect trial, perfect interview. We are so critical of ourselves all the time’. But there really are various ways to get to where you want to go. For example, Cindy passed the opportunity of clerkship at a big firm and yet has had a highly successful career including as the first female CEO of the Australian Bar Association.

I believe part of being able to have strong mental health, is to be aware of where there are challenges so that you are prepared to deal with those. Cindy’s journey shows that being dedicated, passionate and intelligent are the foundation aspects of success – experience can come in many different forms.

Minds Count is an independent, charitable foundation which was formed in 2009 and started as the Tristan Jepson Memorial Foundation after Marie and George Jepson’s son, Tristan who suicide at 26. The Foundation is designed to assist the legal profession reduce psychological distress, promote mental health, and reduce the stigma attached to mental illnesses. This stigma has been challenging to overcome. The Foundation works hard to raise awareness of mental illnesses and wellbeing as they speak with law students, deans of law schools and partners of firms among others. Initially, many people did not want to hear or acknowledge that there was a problem. To determine whether there was something to fix, the Foundation teamed up with the Brain and Mind Institute to conduct Ed.2 2019

a survey of barristers, to which 2000 people responded. The statistics overwhelmingly showed there was a legitimate issue within the profession and it needed to be addressed. The Foundation put together the Workplace Wellbeing Guidelines for the Legal Profession. When these Guidelines were first established, there were only three signatories. There are now 230 signatories from all branches of the profession. There is a listening tour this year which will see the Foundation engage with the signatories to understand what is working and what assistance the Foundation can provide.

An important point that Cindy made, is that lawyers need to reach out to each other, and to the medical profession to assist. The profession needs access to psychologists, psychiatrists, marriage counselors, tax consultants – whatever the issues are, there needs to be a resource available to assist them. Recently, the Foundation considered its role going forward – the Guidelines have raised awareness and made so much progress for the legal profession in terms of acknowledging mental health challenges. But there is more to do. People continue to commit suicide, and continue to suffer from tragic mental illnesses that are devastating for themselves and everyone who is in their life, and further, the legal community. We are all in this together.

Advocacy is one of the most important aspects of Minds Count. There has been a lack of awareness and understanding in years past, with ‘an expectation of people [Cindy’s] age to just get on with it, don’t report, don’t complain.’ Cindy encourages people to talk and share the challenges they face, to create the connection and support network that we all need, particularly in law. There are services such as Bar Care and Lifeline for Lawyers, but if these services are not talked about, it is like ‘selling a secret’. Being on your feet and talking about the issues assists to decrease the stigma. The Foundation operates on passion and people being active. People who are part of the Foundation want to be there, they are well connected, and most importantly, everyone is invested and wants to assist. There are many challenges that we as lawyers face – personally and within the profession. Despite this, there are avenues for us to take to look after our own wellbeing, and if we all look out for each other, we will all thrive and make the difference in the world that we want to. thebrief.muls.org | 11

Devil’s Advccate

DNA

Sequencing For

ď…¤ Annie Renouf

D

NA sequencing is transforming our understanding of what it means to live a healthy and fulfilled life. When health professionals look at variations in genes, they can determine whether a person is at risk of disease or genetic disorder and detect them before symptoms appear. Out of the 22,000 genes that the average person has, 6000 are associated with inherited diseases. Providing people with the ability to learn about about their unique health risks encourages prevention of disease, promotes wellbeing and enhances an individual’s understanding of the health conditions that run in their family or their potential to suffer from a disease. This yields dual benefits for a person; by incentivising them to make healthy lifestyle choices and assisting healthcare professionals in providing the best care possible.

DNA sequencing is the process of determining the sequence of nucleotide bases in a piece of DNA. It involves determining the order of the four chemical bases that make up the DNA molecule. The four chemical bases are adenine (A), guanine (G), cytosine (C and thymine (T).

Within the DNA Double Helix, these four chemical bases form bonds with each other to make base pairs. The pairing process is the primary means by which DNA is copied when cells divide and this is the basis of how the majority of DNA Sequencing is performed.

Legal developments pertaining to DNA Sequencing have facilitated the processs of eliminating concerns about genetic discrimination.

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Genetic discrimination is discrimination against an individual by potential or current employers, where the presence of a gene mutation that causes or increases the risk of an inherited disorder. A legal framework has emerged in the U.S.A. over time, to facilitate a shift in attitudes towards people who have a gene mutation. A pivotal piece of legislation pertaining to DNA Sequencing has been enacted in the U.S.A.; the Genetic Information Nondiscrimination Act, which aims to protect individuals from genetic discrimination by health insurers and employers by prohibiting the misuse of genetic information.

The Genetic Information Nondiscrimination Act affords a greater measure of respect and support for people who have a genetic mutation. It prohibits employers from asking health insurers to request, require or use genetic information to make decisions about a person’s eligibility for health insurance and their health insurance premium. It affords three tiers of protection to a person; by providing that an employer cannot consider family health history as a pre-existing condition, ask or require that a potential employee take a genetic test, and acts as a barrier to an employer using genetic information they have to discriminate against a person.

DNA Sequencing is a technology which provides individuals with their genetic information, allowing them an opportunity to learn about their health. This gives individuals a chance to adopt behaviours which can mitigate the risk of having a gene mutation or contracting a disease. It places them in the unique position of knowing about the risk of a disease or genetic disorder prior to detection, rather than dealing with the feelings of distress that arise when they have been diagnosed with a health condition. Genetic Information Nondiscrimination Act is highly influential to ensuring that all individuals are able to be provided equal treatment in the workforce regardless of whether or not they have a gene mutation. This is paving the way for maximising positive health outcomes at the prevention stage and beyond.

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Against

D

 Samantha Marshall

NA sequencing is one of the more realistic of the 1980’s-ethically-edgy-but-aweinspiring science fiction prospects, and whilst it should not be halted for the sake of conservative suspicion, we ought to have caution in our embrace of genetic data.

DNA sequencing is not an inherently worrying process – the more information we have about our composition and health status, the better we are equipped to protect human health, and actively include vulnerable members of our society. Data also is not inherently scary; we consent to the use of information that is (currently) far more invasive, such as our location and relationships with others.

So what makes DNA sequencing that little bit more concerning? Like every variable of the human body, socially constructed concepts of ability and inability defer the question of personal value to a set of criteria which are at best arbitrary, and at worst, unmalleable. If we can qualtify the genetic composition of a person, this could be considered a more objective measure of human capacity, and has the ability to become discriminatory.

Generally, we do not have the ability to know, and therefore categorise, people on the basis of their genetic composition – perhaps this will change with more widespread access to this kind of data.

Whilst the current technology is in its infancy, the spectrum of information that we could learn about a person’s genetic composition is staggering. thebrief.muls.org | 13

So why is this a bad thing? My answer here is twofold.

Firstly, the kinds of entities which are likely to access your genetic information are not the kind of entities you might be willing to share your information with ordinarily. Most of the funded genome projects are either large governmental projects (that may be well intentioned) and seek to obtain and report on huge volumes of genetic data. Australian society continues to push back on the government’s efforts to obtain data on their citizens (cite: the disappointing and poorly received My Health Record debacle), and this is arguably likely to become the most invasive type of data available.

The other entities are large, private corporations, such as insurance providers and pharmaceutical suppliers, who only seek to gain from the monetisation of genetic data. In an era of DNA sequencing, a greater access to personal medical information will increasingly lead to a greater demand for it – insurers will have a perverse incentive to require the provision of your genetic information for insurance assessment, and without strong, absolute government regulation – we will give it to them.

The second reason is a far more practical consideration than a principled one. Whilst there may be a legitimate ethical reason why these large entities should not be able to access your personal data, the practical harms are likely to be more significant and perverse. The impacts are also likely to harm those who are vulnerable as a trade-off for the curiosity and health of other classes of people; the benefits of obtaining health information on such a wide scale must be balanced with the impact on vulnerable groups.

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The ability to learn more information about one’s own biology could plausibly expose you to discrimination.. This is less likely to exist as a structured social hierarchy (I do not seek to scare-monger with a melodramatic article about Gattaca) and is more likely to look like workplaces preferencing candidates who possess certain gene compositions, or ordinary Australians to be expected to share this kind of data with insurers.

Even more pernicious, there may be illegitimate and culturally inappropriate criticisms made of a person’s identity – just last year One Nation called for Aboriginal Australians to ‘prove’ the origins of their birth via genetic testing.

This is ultimately a wicked problem for legislators; how far should we accept the access and use of genetic information in both a public and private sphere?

The true answer is probably sometimes.

Either way, a robust regulatory system, culturally appropriate genetic counselling, and clear boundaries set by ethics are required to mitigate the prospect of genetic data abuse.

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STAY TRUE.

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Staying true to your direction is what defines Clayton Utz. We’ve built a culture that’s unlike any other law firm, but don’t just take our word for it. A good lawyer needs compelling evidence so meet our people and judge for yourself. claytonutz.com/graduates

Academic brilliance certainly counts, but graduates who thrive here have something extra – a natural passion for connecting with people and a strong sense of self. That’s what staying true is all about. If you have these qualities, Clayton Utz is for you.

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When Healthcare Is

Weaponised Anjali Nadaradjane

‘R

espect without prejudice’. These succinct words have become a common element of the conversation on International Humanitarian Law (IHL). Despite this clear motto, the protection of health care in armed conflict has dramatically deteriorated and there has been a blatant and systemic disregard for the fundamental norms of IHL. IHL provides for the protection of medical facilities, health workers, medical transport and the wounded and sick. The weaponisation of warfare violates the neutrality afforded to health workers who treat the sick and wounded despite the ongoing perils of working in conflict zones. With healthcare becoming a source of injury rather than alleviation, there is an urgent need for the international community to act swiftly and seriously if there is any chance of preserving the humanitarian principles of IHL in war.

History of healthcare in war Customary IHL provides a range of protections for medical personnel in both international and non16 | The Brief

international armed conflict as long as they act within their humanitarian role. The customary rules date back to the 1864 Geneva Convention and have been subsequently incorporated into all four Geneva Conventions and Article 15 of Additional Protocol I which covers civilian and military medical personnel and have even been referred to by the International Criminal Court (ICC) when dealing with such matters. The protection of medical personnel, medical units and transportation is manifest through a special status they are afforded which allows them to wear distinctive emblems to differentiate them from combatants and civilians. Unlike combatants, medical personnel are allowed neutrality. Moreover, under the Geneva Convention, there is a requirement that the sick and wounded are to be collected and cared for and thus the protection of medical personnel can also be characterised as a subsidiary form of protection which ensures the wounded and sick receive necessary medical care. Attempts of violence against sick or wounded individuals are strictly prohibited under additional protocol I, Part II. The denial of medical treatment is also considered Ed.2 2019

contrary to the customary rules of international law and medical personnel must search, collect and treat wounded and sick individuals without delay. The only exceptions to this rule can be made based on the nature of the medical condition and whether one patient requires more immediate medical attention than another.

What is the weaponisation of healthcare?

The weaponisation of healthcare has been occurring for decades, yet it has dramatically skyrocketed in recent years. It is a strategy of using people’s need for health care as a weapon against them by violently depriving them of it.

Experts have explained the weaponisation of healthcare through five segments: 1) Deliberate targeting of healthcare workers; 2) Decimation of healthcare infrastructure in politically sensitive conflict zones; 3) ‘Siege medicine’ which is the obstruction of aid, limitation of resources and the inability to evacuate patients. It also covers areas such as forcing inexperienced medical personnel to cover extensive Ed.2 2019

medical and surgical specialties and make ethical decisions about how resources are to be allocated; 4) Triggering public health crises to escalate such as polio, tuberculosis and other infectious diseases; 5) Systematic violations of IHL and a loss of medical neutrality.

These five elements have characterised numerous examples of the weaponization of healthcare across Syria, Africa and the Middle East.

Examples of the weaponisation of healthcare The weaponisation of healthcare has been present in wars across Africa, the Middle East and Eastern Europe.

Recent wars in Africa have been further scarred by a series of brutal attacks on health facilities and workers, which have reduced IHL to a negligible thought. The Eastern Region of North Kivu, located in the Democratic Republic of Congo, is experiencing ongoing conflict, which has resulted in numerous villages being destroyed, health facilities being burnt and health care workers being kidnapped to gain private treatments for wounded rebel fighters, and systematic and intentional attacks on health thebrief.muls.org | 17

facilities. In 2009, the Congolese Army infamously attacked seven vaccination sites in the Eastern provinces that were under the control of the Forces Democratiques de Liberation du Rwanda, a non-state armed group. Myriads of women and children were forced to evacuate the area and were unable to receive the necessary vaccines to keep them alive in the epidemic-prone areas they inhabited. In 2016, the Mozambique National Resistance, a rebel armed group linked to the main opposition party in the country, attacked two hospitals and two health clinics, looting medicine and supplies and destroying medical equipment.

The incessant war in Syria has paved the way towards the weaponisation of healthcare becoming normalised. It has reached unprecedented heights and challenges which have very much undermined the principles and practice of medical neutrality.

Health facilities are being driven underground to caves or basements and health clinics are now constructing military-style fortifications in the hope of continuing to operate despite endless bombings in their area. Unfortunately, chemical weapons have now turned these very underground or cave hospitals into death traps for medical staff and patients. The Latamnah Hospital in the Western Syrian City of Hama was assailed by an airborne poison, which dispersed throughout the underground structure and forced medical staff to evacuate, leaving patients they were operating on to die. All sides from the Syrian government and Allied forces, to the Russians who have escalated the problem, are have contributed to the weaponising healthcare. Unfortunately, there is no restraint on their use of healthcare as a weapon, despite the multiple violations of human rights. The torture and killings of doctors, nurses and surgeons have caused a mass exodus of health workers; which is predicted to be about 50-70% in the workforce in Syria. The results have been devastating for patients who are deprived of much needed healthcare and forced to fend for themselves.

What can be done?

The international community must act now instead of remain complacent. United States Agency for International Development (USAID), the United Nation and numerous NGOs have provided generous grants to fund and support Syrian hospitals.

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Unfortunately, with USAID programs facing fiscal pressure, humanitarian projects will suffer and hospitals and doctors around Syria will remain unprotected.

The World Trade Organisation (WHO) has observed strike attacks on healthcare facilities and medical personnel. However, the WHO could go a further step in recording who the perpetrators of such attacks are exactly as they often remain unknown in the chaos of an attack. A 2017 Lancet report was also released outlining several policy initiatives that would benefit from swift action. This includes various international bodies and States acting strategically to collect and disperse precise data regarding the intensity of routine attacks, identifying perpetrators and strengthening support for drowning healthcare workers. Without these actions, organisations like Médecins Sans Frontières will continue to suffer and chemical warfare tactics will increase.

On the legal front, States should be urged to review their domestic legislation and its implementation and to ensure it aligns with their obligations under IHL. They should also ensure their military and health workers are trained to abide by the applicable legal frameworks, publicise the proper use of the Red Cross emblem and investigate and condemn intentional attacks against healthcare personnel, facilities and medical transports. Gathering the appropriate evidence and establishing both domestic and international tribunals for prosecution would enable the various parties responsible for weaponising healthcare to be held accountable. The International Criminal Court can be an effective enforcement instrument of IHL in convicting perpetrators and deterring future crimes, however its success is up to the active collaboration between the States and the tribunal. Tribunals can convict perpetrators and act as a deterrent against future grave crimes making them an effective enforcement instrument of IHL. The weaponization of healthcare is a colossal challenge for the international community. Yet, if States can reach unity as to the best mechanisms to address blatant attacks against health personnel and facilities, there is hope for a renewed consideration of ‘respect without prejudice’ for medical professionals operating in war zones.

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Genetic Law:

Harmonising Discrimination and Privacy Law Frameworks to Prevent Genetic Discrimination Tessia Tan

N

ot so long ago, genetic testing was thought to be the stuff of futuristic science fiction. However, the ongoing advent of new technologies has meant that not only is genetic testing becoming cheaper, it is also much more readily accessible today.

This newfound capacity to understand the human genome brings both the invaluable ability to utilise predictive genetics in preventative healthcare, and the dangerous possibility that such

genetic mapping will lead to genetic discrimination. Unlike other forms of discrimination that are regulated by our existing legal framework, laymen and legal minds alike have difficulty conceptualising the exact nature and incidence of genetic discrimination.

Ultimately, without the implementation of targeted reform, the growing incidence of this form of discrimination bears perilous consequences in both a social and legal context, permeating many sectors of the public sphere such as insurance and employment. Ideally, such reform would involve the implementation legislation both targeted at combating genetic discrimination and allowing privacy and discrimination laws to work in synchronisation to prevent instances of genetic discrimination.

What is Genetic Discrimination?

Genetic discrimination can be described as discrimination based on an individual’s genetic composition. While this definition may seem simple enough, attempts

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to enact new regulatory measures are greatly hampered by the difficulties legislators face in conceptualising genetic discrimination given that incidences generally involve discriminating against conditions that are pre-existing or not physically visible. Additionally, genetic discrimination bears the unique distinction of potential discrimination against victims who share genetic makeup, such as family members. Thus, further examination of our domestic response to this growing issue is crucial.

Laws in Australia In a domestic context, much debate surrounds the question of whether genetic discrimination warrants separate legislation, particularly in light of what many consider a confusing disparity between the social and legal definitions of genetic discrimination. That is, while certain conduct against people with atypical genotypes may seem socially unjust, broad exceptions in existing legislation have meant that this conduct is not necessarily discriminatory in the eyes of the law. In the employment and insurance sectors alone, corporations are given comprehensive scope to discriminate on a genetic basis under the guise of avoiding unjustifiable hardship.

At the federal level, all disability-based discrimination is solely regulated by the Disability Discrimination Act. Though an amendment in 2009 added genetic discrimination as a grounds for complaint, such reference to the issue can only be considered an afterthought. Technologies that allowed genetic mapping were available much before the addition in 2009 but the government has been hesitant to include any substantive protection. Moreover, regardless of this additional codification, the core nature of the legislation is still retroactive meaning that victims may only seek redress once discrimination has already occurred.

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This complaints-based model highlights the reactive nature of our current framework and a significant need for more preventative measures. By the same token, broad defences remain available to perpetrators under current legislation allowing in many cases, for example, for employers and insurances companies to require potential employees and clients to submit themselves for genetic testing.

The comprehensive and systematic stigmatisation that many victims may feel after being ‘outed’ for not possessing a genotypical makeup is a further drawback of the complaints-based model, prompting a real need for re-evaluation of our legal framework in this area. Correspondingly, current privacy laws do little to prevent the perpetration of genetic discrimination given that no special protection is afforded to genetic information. Rather, individuals are given general control over how their personal information is used but the specific protections necessary for sensitive health data such as genetic information is severely lacking in current domestic policy.

Laws Around the World Australia must look to the example of other jurisdictions that have successfully implemented specific genetic discrimination policies. For example, the recent implementation of the Genetic Information Non-Discrimination Act to dovetail its existing health privacy laws under the Health Insurance Portability and Accountability Act has allowed the American government to enforce specific prohibitions in the employment and health sector, most notably extending federal protection through employeesponsored group health plans. While this development is not without its drawbacks, namely a marked increase in litigation and a lack of comprehensive protection given that it only covers discrimination against asymptomatic individuals, its enactment has had the beneficial effect of Ed.2 2019

both standardising a baseline definition for genetic discrimination and setting a minimum level of protection against genetic discrimination for all citizens.

In the UK, a complete moratorium on the use of genetic information within the insurance sectors through the implementation of the Code on the Use of Genetic Testing by the Department of Health and Social care has provided some measure of genetic equality.

Other European equivalents of genetic discrimination-specific legislation have additionally had the benefit of raising public awareness and condemnation of genetic discrimination. Approaching genetic discrimination from a human rights perspective, as has been the strategy of many foreign nations such as Italy, Germany and France, may warrant gleaning further guidance from international instruments such as the Universal Declaration on the Human Genome and Human Rights or the International Declaration on Human Data, both of which provide substantial normative guidance on a potential framework for regulating genetic discrimination. Ultimately, the implementation of any of these approaches in isolation would only achieve superficial equality without addressing the deeper issues of stigmatisation. Thus, a more concerted effort towards reforming privacy and discrimination laws are necessary to overcome the shortcomings of our current framework.

Heaven State So what does a legal system predisposed to combat genetic discrimination look like? It can be argued that achieving a heaven state of real protection against the possibility of genetic discrimination will come only from adopting a two-fold approach:

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1. Preventative measures within privacy law to regulate the use and disclosure of genetic information • The reformation of privacy laws to include specialised protection over genetic information; • Implementation of limitations on organisations requiring genetic testing; and • Improved regulation on the use and disclosure of genetic information by third parties.

2. Reformation of discrimination laws to prohibit the use of genetic information for discriminatory purposes • Standardised definition of genetic discrimination; • Narrowing of exemptions and defences for perpetrators such as insurers and employers; and • Increased scope for government oversight and intervention into the use and disclosure of genetic information.

Harmonisation of these two approaches will ensure that individuals are protected by both preventative measures and an adequate system of redress. A heaven state requires immediate changes to our current regulatory framework in order to affect tangible minimisation of the potential for genetic discrimination in a domestic context.

In conclusion, current genomics capabilities have demystified our understanding of genetics with great precision. However, this new understanding also bears the responsibility of developing comprehensive measures to ensure that the use of genetic information is regulated for the promotion of genetic equity, rather than for discriminatory purposes in either the public or commercial context. Though conceptualising genetic discrimination in a social and legal sense is not without its difficulties, better statutory engagement with this issue through targeted legislation and the harmonisation of discrimination and privacy law frameworks will better prepare us for responding to incidences of genetic discrimination in all sectors of the public sphere.

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Commercial

T

Surrogacy Can We Ascribe a Price to Life?

Matilda Bryne

here is significant debate surrounding commercial surrogacy within the Australian legal system. Australia has nation-wide laws regulating surrogacy, with commercial surrogacy criminalised in all states and territories (excluding the Northern Territory).

The ethical standards which have informed the strict national law have been questioned, as more families undergo commercial surrogacy arrangements internationally. These international arrangements with countries that have legalised commercial surrogacy, are not recognised in Australia and parents cannot apply for parentage orders, as it contradicts the current domestic legislation. This practice raises important ethical and social questions as to whether these regulations are effective and justifiable.

The practice of commercial surrogacy Commercial surrogacy, under s 9 of the Surrogacy Act 2010 (NSW) (the Act), includes the use of a fee, reward or other material benefit that benefits the person agreeing to the surrogacy arrangement, agreeing to give up the child or agreeing to transfer parentage rights. Section 10 also prohibits advertising surrogacy arrangements, including both those seeking a surrogate and birth mothers intending to act as a surrogate. This interpretation of the legislation has been reflected in some recent court decisions, with judges noting more need for legislative change; in September 2017, the Family Court held that parents who had procured their child through a paid surrogacy

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arrangement in India, could not be recognised as parents under the Family Law Act 1975 (Cth) in Australia. This essentially leaves the child legally parentless, leaving them vulnerable under the law.

The strict approach applied in family law matters of parentage has not been adopted in commercial surrogacy prosecutions. Under section 9 of the Act, the maximum punishment for undergoing a commercial surrogacy arrangement is 2500 penalty units or imprisonment for 2 years, or both. Since the Act was introduced, there is limited information to support any recent successful prosecutions, despite many illegal surrogacy arrangements being carried out in Australia.

The complex reasons for this may be attributed to the NSW Law Reform Commission’s observation that criminal surrogacy law is questionable. With no strong moral push against those with an emotional need to be a parent, it is not in line with public interest for resources to be used to this effect.

The demand for commercial surrogacy Significant changes in Australian society have seen an increased demand for surrogacy arrangements.

As more women are choosing to have children later in life, this is leading to higher rates of agedbased infertilities. Alternatives such as adoptions are becoming less available with policy changes within child protection. The growth and acceptance of LGBT+ relationships has also contributed to a willingness to consider surrogacy. With the increased medical technology available to facilitate this societal Ed.2 2019

shift, surrogacy is a growing practice “Current laws should constitutes adequate payment. A that many Australians feel as a very woman agreeing to be a surrogate be amended to serious and viable option. Becoming via commercial means, may still greater protect the a parent is a very central facet to undergo an altruistic arrangement, rights and interests of contemporary Australia, thus there if payment is withheld. As many vulnerable children.” is a strong emotional will to have families in Australia are estimating this need fulfilled. As opportunities adequate payment due to the for willing surrogates are often limited, this leaves illegality, there is no regulation ensuring the payment commercial surrogacy as the only option. meets an equitable threshold. The controversial ‘Baby Gammy’ case brought this issue to the forefront, as Commercial surrogacy globally it highlighted how women can become commodities In the United States, commercial surrogacy is legal. The of reproduction. In this case, the surrogate kept practice is usually undergone through an agency who one of the twins who had Down’s Syndrome. The use psychological screening, counselling and support Australian couple faced considerable allegations of services to make sure that impoverished and vulnerable abandonment, as they had taken the other child back women are not being exploited. If Australia were to to Australia. The court in Western Australia ruled adopt a similar system to the U.S., it may be questioned that the parents had not abandoned the child, but whether the rights of the birth mother would be this case emphasises the contentious issues that can diminished or treated less favourably by the courts. As arise, relating to the rights of the birth mother and the rights of the birth mother are paramount in current children in commercial arrangements.

Australian legislation, it is evidently an important The Family Court’s strict approach to not principle that needs to be upheld. recognise legal parentage, or Australian citizenship In contrast to Australia, India has been one of the of children, leaves many children vulnerable. more recent countries to ban commercial surrogacy.

Other children who are not what parents expected, A study backed by the UN in 2012 estimated that the including children with disabilities and other health commercial surrogacy industry in India was worth problems, can also leave children stranded with upwards of $400 million a year. This business was surrogates who do not have the means to raise the essentially trafficking women in poverty and limiting child. The best interests of the child are the primary many of their rights. The decision in India to ban consideration of courts, but an argument can be commercial surrogacy in 2018, represents an ethical made that current regulations do not adequately shift away from the practice. With more countries protect these interests in these circumstances. With banning the practice, Australia should exercise caution an increased risk of children being abandoned and as to whether this is a viable option to be legalised. legally parentless, it can be questioned whether c current laws should be amended to greater protect The ethics of commercial surrogacy the rights and interests of vulnerable children.

With that in mind, there is extensive debate on the ethics of commercial surrogacy. There is an increased The practice of commercial surrogacy raises a multitude potential for women to be exploited and act as of ethical issues. As a practice, it can exploit and surrogates to escape poverty or other vulnerable commodify both the women acting as surrogates situations. Acknowledging commercial surrogacy and the children. The lack of prosecutions under the arrangements in Australia may see an increased current criminal provisions speaks to the absence of industry of impoverished women, deprived of any resource prioritisation and the lack of public interest autonomy. Alternatively, there is an argument that in seeing intended parents prosecuted. However, by legalising commercial surrogacy it would greater regulating the practice is still a crucial concern amongst protect vulnerable women who will be supported by courts and broader Australian society. As more cases health professionals to ensure that the arrangements appear before the Family Court, and more children are will be monitored and recorded. denied legal parentage, commercial surrogacy remains a There is also the dilemma of payment and what controversial issue under the law.

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C

SI. Criminal Minds.

Law and Order. Some of the most popular crime shows enjoyed by many, but hopefully not those seeking accurate portrayals from the often-sensationalised careers presented.

Particularly within American – and to a slightly lesser extent – Australian culture, there exists a keen public interest in crime, criminals and the criminal process. Forensic and legal television shows have arguably filtered into the practise of forensic science, and by consequence into the way the legal justice system is perceived to operate.

It is the representation of psycho-legal fields in a sensationalised manner that undoubtedly influences public expectations. This article will examine the influence of popular culture on the legal system, with a particular focus on the field of forensic psychology and its role in the carrying out of justice.

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The

CSI Effect:

Obstructing our Justice System?

Katerina Poulos

A forensic psychologist’s role typically involves taking an understanding of human behavioural psychology and applying it to the facts of a case at hand, assisting courts in determining whether a suspect is fit for trial, evaluating the mental health of both perpetrators and victims, and providing evidence for mental defences such as insanity. These experts play a highly valued role in assisting the legal system, but the glamorised representations which come into play within popular culture can be misleading, propagating the belief that forensic psychologists have an infallible, all-knowing insight into a person’s motivations and actions.

A study into the portrayal of the American legal system in ‘prime-time television’ crime dramas confirmed that practical inaccuracies caused viewers to form unrealistic expectations of court processes and outcomes, and found significantly lower levels of empathy towards suspects. These shows are designed to be as dramatic and consumable as possible, and are largely incompatible with real-life scenarios which present much more complex problems and implications. The primary issue faced by the legal justice system when examined through a psycholegal lens is the adverse impact of misconceptions on the treatment of parties to crime, tough-on-crime behaviour, and public expectations of legal outcomes.

Our collective misconceptions related to forensic psychology indirectly affect and inform legal decision

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“Psychological philosophy can assist in developing new principles which centre around greater empathy and insight in the treatment of suspects.” making. Juror bias (coined ‘The CSI Effect’), evidence and expert testimony, police interrogation and even a judge’s own shaped biases and beliefs can lead to the deliverance of injustice. Each of these interact and are affected by the workings of psychology.

Thus, widespread misconceptions about psycho-legal issues, particularly relating to forensic psychology, create harmful views which in turn shape and sully the justice system’s ability to operate effectively.

Further, unjust outcomes are likely to foster public mistrust and puts the criminal system into disrepute.

So, how is forensic psychology simultaneously involved in fuelling (through misconception) and providing a solution to the problem?

The simple answer is that there is a fundamental difference in approaches towards evidence and analysis between the fields of law and forensic psychology. Law is authoritative, primarily valuing facts and objectivism, and this often clashes with psychology’s empirical nature and interpretative aspects, despite its rightful place in the sciences.

In all areas which remain largely subjective, we must ensure that our own biases do not taint information. While psychology undoubtedly proves useful in supporting evidence and providing the court with direction, it is increasingly important that we critically examine the impact of certain legal procedures which are founded on forensic psychology, such as the extent to which a jury can objectively deliberate without the adverse influence of group dynamics, or the credibility of eyewitness testimony. It would therefore be a mistake to create policies and encourage behaviour which rely on assumptions, whether public or professional.

Questioning existing personal bias and beliefs in light of new evidence or information should be fostered, and this is precisely where we are currently failing.

This is because misconceptions are really much more than mistaken beliefs. Not only do they lead to poor judgement and decision making, they are Ed.2 2019

difficult to reshape. It is suggested that this is due to two reasons: (1) any new information which contradicts an individual’s belief is subconsciously filtered out; and (2) the level of ‘cognitive effort’ required to change a particular belief discourages individuals from doing so. It is therefore essential to become aware of our own biases which influence our decisions, as much as we are able.

However, this should not dampen the increasing growth of this young field, as it has much more to offer us. Theories are incredibly important in understanding crime from different perspectives to justify possible motives and behaviour. Where habits and bias are hard to shake, psychology can assist in reforming biases. For instance, forensic psychology can help us better understand the juror decision making process, analysing the way subjective interpretation of facts, media influence, court proceedings and dynamics affect deliberation.

Psychological philosophy can assist in developing new principles which centre around greater empathy and insight in the treatment of suspects. These are only some of the many areas which could lead to better, more informed policy and procedure.

According to The Association for Psychological Science, what can be gathered from such observation is that current portrayals and beliefs reveal the public’s ‘genuine concern yet naïve fascination’ with the legal system and process. It is the role of decision makers and educators to ensure we tackle the underlying concerns discussed, and ours to engage in debate and discourse. Hence, forensic psychology has the potential to provide the legal system with more opportunities to deliver just outcomes in situations of ambiguity. This is as long as reasonable expectations of psycho-legal fields are maintained, and the legal process is free from the often-adverse impact stemming from society’s obsession with all things crime.

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Animal Testing:

A thing of the past or necessary for the future?

A

Juwariya Malik

ustralia is well-known for its appreciation for our beloved domestic animals. It is estimated that Australians have over 24 million pets, which is roughly the same number as individuals comprising our entire population. So why is it that in a nation which much adores its domestic pets, that there is still rampant scientific testing conducted on millions of animals each year? This article will examine Australia’s current laws in relation to animal testing and animal protection, as well as projections for legislation in this field for the future. Specifically, it will examine the protection of animal welfare in authorised animal testing, schools as well as in domestic settings.

In Australia, current statistics show that more than 6 million animals are subjected to experimentation and research for testing purposes, every single year. Animal testing within the nation is commonly utilised for scientific,

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medical, agricultural and educational motives, which is permitted as long as it is authorised and accredited by a relevant individual or body.

The original source of legislation concerning animal testing is the Animal Research Act 1985 (NSW). The purpose of the Act is to protect the welfare of animals in connection with animal research by prohibiting unlawful or unauthorised animal testing in Australia.

The Act enforces punitive measures for unlawful animal research, unlawful retainment of animals for animal research by an unauthorised person and unlawfully supplying animals for research without a licence. A benefit of the Act was the establishment of the Animal Research Review Panel, a statutory body, which conducts inspections, reviews and collates data on current animal research in Australia. In their 2015-2016 Report, they outlined a ‘Replacement, Reduction and Refinement’ model in an effort to discover alternative methods of testing, reduce the number of animals being tested on and refine techniques to reduce the psychological and physical impact of testing on animals.

While this is a genuine foundation, the Act only transcribes the bare minimum for animal protection by ensuring that all

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activity is authorised. It does not however, impose any strict guidelines or practices to govern authorised animal testing itself.

This Act was recently amended by the Animal Research Regulation 2010 (NSW), which outlines the process of accreditation for animal research.

Significantly, Division 4 outlines that all nongovernment schools which are part of the Association of Independent Schools of New South Wales or the Catholic Education Commission, constitute organisations which may carry out animal research without accreditation, as long as they have the authority of an ethics committee. This clause is concerning as it only caters to independent schools, and alleviates schools of the necessity to be accredited under the Animal Research Review Panel.

Moreover, a strong case can be presented against the need of animal research or testing at schools.

With emerging technologies and the ability of schools to organise educational trips to organisations such as museums to view animal anatomy, is there a necessary cause for the provision of animals and animal parts to secondary students? Learning experiences that entail animal suffering or stress should not be justified, and students that do conduct animal experimentation should be taught with a humane regard for other living organisms. This legislation should be reviewed to ensure stringent measures to regulate animal testing and research in schools, particularly by non-governmental schools which are irregularly reviewed as they are exempted from the need for accreditation.

The Australian Code for the Care and Use of Animals for Scientific Purposes is one of the clearest published guidelines regarding the ethical treatment of animals within research institutions. It outlines the requirements of investigating institutions, and emphasises the importance of minimising harm and distress in animals, and supporting their wellbeing.

However, unless this is incorporated into legislation by the government, the Code will remain non legally-binding.

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Nevertheless, not all is doom and gloom in Australian legislation ensuring animal welfare.

Though slow and steady, there has been progress in minimising animal testing, especially in the realm of cosmetic testing. The Industrial Chemicals Act 2019 (Cth) established the Australian Industrial Chemicals Introduction Scheme and officially placed a ‘ban on animal test data for determining the category for cosmetics’ and ‘applications for cosmetics’. Although it means that cosmetics that use industrial chemicals may continue to use animal test data if the data was obtained before 1 July 2020 at least it will ensure that all new products that use industrial chemicals after this date will not be able to obtain new animal test data.

It appears that Australia has taken some steps in the right direction to minimise animal testing.

However, over 100 000 animals nationally were subjected to the ‘major physiological challenge’, where they remained conscious for part of, or the entire procedure. New South Wales was the largest state conducting tests and surgery on animals in a year, experimenting on over 2.6 million animals alone. Being the fourth highest user of animals in experiments in the world, it is time for Australia to strengthen its laws and ensure the protection of animals in research facilities.

Overall, Australia lacks appropriate legislation to govern the ethical treatment of animals outside of domestic settings. Australia, particularly on a federal level, should implement necessary legislation to ensure the ethical treatment of animals being used for research purposes. Australia should redirect funding towards discovering suitable alternatives to animal testing. Following the ‘ Replacement, Reduction and Refinement’ model, it is not only likely but almost certain that with proper funding and resources, Australia can become a pioneer in developing alternatives to animal testing, and perhaps one day ending it once and for all.

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A Life for a Life:

The Stem Cell Controversy

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ince its origins almost 40 years ago, stem cell research has been fraught with controversy due to its ethical implications.

Stem cells are known as the building blocks of all life, as they exist in every multicellular organism on the planet.

In particular, stem cells are found in blastocysts from embryos, in the bones, skin, liver, and the stomach and gut lining adults. In recent years, some stem cells can even be created in a laboratory.

But why are scientists dedicating their efforts to researching stem cells? Stem cells have the potential to treat many diseases that are currently untreatable by other means. Stem cell research can be used for tissue regeneration, cardiovascular disease treatment, brain disease treatment, blood disease treatments, and cell deficiency therapy.

The California Institute for Regenerative Medicine even argue that in theory no disease would be untreatable if researchers were able to adequately study embryonic stem cells. This depicts stem cells as the heroic cure for all ailments. However, this idealistic image of a world without disease is hindered by the controversy that surrounds stem cell research.

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Avnoor Guron

The study of embryonic stem cells is ethically controversial because it involves the destruction of early stage human embryos that are five to seven days old. People who are morally opposed to the destruction of human embryos believe that otherwise, except for interference, the embryo would become a human being, it should receive the same rights as a living and breathing human.

This perspective is reflected in many laws throughout the world. In the United States, embryos cannot be created for research purposes. However, scientists are permitted to use embryos that have been donated for research by women and couples who have frozen their eggs for infertility treatment.

This seems to be a middle ground within the controversy. Furthermore, under the Bush Government in 2001, significant limitations were placed on funding and the number of embryonic stem cells that were allowed to be destroyed for research purposes. The restrictions on funding placed by President Bush were overturned by President Obama in 2009 after he issued his Executive Order titled, ‘Removing Barriers to Responsible Scientific Research Involving Human Stem Cells’. Similarly, in Australia it has been legal to use embryos for stem cell research since 2002, as long as scientists meet strict regulatory requirements. Under these requirements, only embryos that were created Ed.2 2019

by assisted reproductive technology, and are in ‘excess’ to the needs of the donors, can be used. Written authority must be given for the use of the embryo for the purpose of research and it must be determined in writing that the embryo is in ‘excess’ to the couple’s needs. In addition to this, a licence must be granted to the researcher by the Embryo Research Licensing Committee in accordance with the procedures outlined within the Research Involving Human Embryos Act 2002 (Cth). Hence, in Australia stem cell research is heavily regulated to balance moral concerns with the desire for medical progress.

Therefore, the legislation in Australia and the United States are evidence of the delicate balancing act that is maintained between ethics and medical advancement.

Further ethical concerns are raised in regard to stem cell research and intellectual property. A patent is an exclusive right over a device, substance, method or process that is new and inventive, and grants the patentor a temporary monopoly over the patent. This is underpinned by the logic that by providing an incentive in the form of a temporary monopoly, people would be encouraged to develop new inventions and processes for the greater advancement of society. However, when this is applied to stem cell research, the temporary ownership over human cells raises many moral questions. The ownership of humans has a dark history and granting scientists ownership over human cells can generate the same moral dilemmas.

In the United Kingdom, stem cells are not patentable for commercial purposes.

Similarly, the European Court of Justice had previously banned the patenting of inventions based on stem cells. However, this was overturned in 2014 by permitting the patenting of stem cells that have an industrial application. Yet, in Australia, stem cells that originate from adults are patentable, but embryonic stem cells are not. This follows Ed.2 2019

the logic that adult human stem cells are not human beings or potential human beings under section 18(2) of the Patents Act 1990 (Cth), but embryonic stem cells are.

It is interesting how Australian legislation focuses on what can be defined as human to determine what can be patented, whereas the EU base their patentability on the degree of benefit can be gained from the research.

The ethical concerns within stem cell research emulate the public good/private good paradox. If the private moral concerns of people are set aside for the greater public good, should that be what is reflected in our legislation instead? If research into stem cells has the potential to do so much good for people currently suffering from untreatable illnesses, is it not a small price to pay to set aside our moral concerns? Compromising personal moral concerns for the benefit of the greater good is a collectivist approach to stem cell research and imitates the theory of utilitarianism proposed by philosopher Jeremy Bentham. Is the slow progress in stem cell research a reflection of heavy regulations? Is the world being deprived of good health? All of these questions demonstrate that this is not a two-dimensional issue and there is no clear answer. However, a temporary middle ground has been reached by scientists who now use laboratory-created stem cells as the basis for their research. But this does not negate the need for embryonic stem cells, and thus the debate continues.

As demonstrated, the issue of stem cell research is vast and contentious. At present, ethical concerns seem to take precedence over medical advancement that may occur from stem cell research. Perhaps as views regarding the definition of human life evolve, legislation around the world may embrace stem cell research. In the meantime, governments continue their intricate balancing act of addressing moral concerns while incentivising medical discoveries. thebrief.muls.org | 29

Postcard from Abroad

Singapore Isabelle Messenger

Gardens by the Bay:

Phi Phi, Thailand 30 | The Brief

Alpine Ecosystem Simulated Indoors.

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F

or a long time, I had been considering going on exchange. I knew everyone who went labelled it as a ‘once in a life time experience’, but personally I felt too nervous. I had never lived out of home or been overseas for more than a month. The thought of being thrust into a completely foreign environment, honestly, terrified me. However, I knew not going would be a decision I would always regret, and I acknowledged the importance of being placed out of your comfort zone.

Most of my friends had chosen placements in Europe. Nanyang Technological University in Singapore (NTU) seemed like something different and exciting. I would be centrally placed and free to travel around Asia (which I love), and Singapore itself is an incredibly fascinating and modern city.

University life I had no idea what to expect when I first arrived. I quickly found out I needed to buy sheets, a Wi-Fi router, a towel and adapters. However, everything seemed a little less scary after my orientation briefing. Everyone was out to make friends, and always hanging out at Canteen 2 – the notorious exchange student ‘chill spot’.

University life at Nanyang Technological University (NTU) is quite different from Macquarie University.

The campus at NTU is massive – you need to take one of the many campus shuttle busses to get to class. Classes are mostly between three and four hours long – a concept I initially found horrifying.

But, like anything, you quickly get used to it. There are plenty of free gym classes constantly running, like piloxing and yoga, and my residence hall had monthly movie nights. There are multiple libraries on campus, and so many food options that you were spoilt with choice. The famous Singaporean chicken rice, as well as noodles, Japanese and Indian, were all within a 400-metre radius from my hall.

Subjects I studied one law subject and three English literature subjects. I would strongly the subject ‘Law of Intellectual Property and New Media’. The subject focuses the development of intellectual property law

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Bagan, Myanmar.

in Singapore and particularly the role of technology in shaping it – for example, how emails and electronic communications could constitute ‘defamation’.

Singaporean law mirrors Australian law in many ways, but it was very interesting to note the differences.

There is an area in Singaporean law which makes it an offence if a man makes ‘inappropriate gestures or comments’ towards a woman.

My other subjects were 19th Century American Literature and Culture, Virgins and Vixens: Romance in 18th Century England, and Postmodernism. NTU is currently ranked 12th globally, so the quality of teaching is extremely high. The workload was manageable, and all of my tutors were lovely and I felt like I could contact them with any questions.

Travel Exchange students in Singapore travel approximately once a month, sometimes more. While I have been here, I have been to Malaysia, Indonesia, Hong Kong, Taiwan, Thailand and Myanmar. After the semester finishes, I plan to go to Vietnam and the Philippines.

While settling into campus life is incredibly rewarding, travelling on exchange is definitely the more fun and worthwhile experience I have had here. It gives you an opportunity to form close friendships with other exchange students, as well as meeting other people

thebrief.muls.org | 31

A Brief Review

Three Billboards Outside Ebbing, Missouri Kirk Gehri

‘Raped While Dying’, ‘And Still No Arrests?’, ‘How Come, Chief Willoughby?’

These are the questions Mildred Hayes, the protagonist of writerdirector Martin McDonagh’s Oscar University Campus, NTU

from around the world while you travel. My advice is never turn down an opportunity for travel with friends (unless you cannot afford it and you have assessments due – then it is a bad idea!).

Learnings My biggest takeaway from exchange has been the independence I have gained. Once you conquer the unknown, you really feel as if anything is possible. Journeying out of your comfort zone no longer feels so daunting, but rather a necessary experience to grow. After the first few days or weeks, it all falls into place. I also now have friends all around the world, who I truly believe are lifelong friends. I have lived in a different culture and have come to appreciate both its similarities and differences from my own. Overall, I would highly recommend exchange for everyone, even if the thought initially terrifies you like it did me!

32 | The Brief

award nominated film ‘Three Billboards Outside Ebbing, Missouri’ (‘Billboards’) poses to local police for their failure to catch her daughter’s killer. Billboards tells the story of the townspeople of Ebbing and their backlash towards Hayes for defaming their Chief of police in an attempt to raise awareness of her daughter’s unsolved murder.

Like McDonagh’s last feature films, ‘In Bruges’ and ‘Seven Psychopaths’, Billboards is a black comedy that tackles big moral questions. The clash between Chief Willoughby (portrayed by Woody Harrelson) and Francis McDormand (portraying Hayes), illustrates the heart of the debate surrounding criminal justice reform. That is, how can the system find a balance between the rights of the victim and those of the accused?

In one sense, the viewer wants Hayes to catch her daughter’s killer: criminal accountability forming part of any just society. However, Hayes is so adamant in her quest to enact vigilante justice that she is willing to sacrifice the individual liberties of others. Hayes conquest to punish those related to her daughter’s Ed.2 2019

“Given that our institutions are only as good as those who represent them, the values of communities and individuals are crucial in shaping the quality of our criminal justice system.”

death becomes increasingly more radical as the system turns against her, leading to animosity from everyone in her life.

Hayes pleads to Willoughby that in an ideal world every male in the country should be subject to a DNA test and the person whose DNA is a match for that found on her daughter, should be killed. ‘There’s definitely civil rights laws against that,’ Willoughby replied. This exchange is typical of McDonagh’s dark comedic style, but equally confronts the reality of the draconian laws that may arise if the system solely focused on ensuring criminal accountability.

The film’s focus on the rights of the victim is especially poignant in the wake of the ‘Black Lives Matter’ movement and an epidemic of raciallybased police brutality in the U.S. To call attention to her daughter’s unsolved rape and murder, Hayes complains to local media, ‘it seems to me the police department are too busy torturin’ black folks to solve actual crime’.

Rather than assist Hayes in her quest for retribution, the citizens of Ebbing undertake what can be roughly equated to as a ‘Blue Lives Matter’ Ed.2 2019

countermovement that highlights the rights of law enforcement officers over the victims of police injustice. McDonagh’s portrayal of Ebbing’s police officers as too racist, violent and incompetent to solve crime begs the question; what is wrong with the criminal justice system?

As law students, we are often confronted with the concept of guilt and innocence. McDonagh’s complex characters challenge this dichotomy, as the viewer is denied a sure moral footing as to who we should be deemed the victim. Billboards directly confronts this ongoing tension in criminal reform between the need to punish those who have committed crime and preserve public freedom.

Officer Dixon, portrayed by Sam Rockwell, whose initial caricature as racist, inept and foolish is transformed in an unlikely path to moral redemption.

Dixon’s narrative displays that we are not defined by our worst acts, and our ability to commit evils is an inherent vulnerability of the human condition.

Given that our institutions are only as good as those who represent them, the values of communities and individuals are crucial in shaping the quality of our criminal justice system.

Ultimately, McDonagh champions the left-liberal view that a propensity towards crime is socially determined. Just as poverty and violence can breed criminals, so too can toxic cultures produce abusive police officers or closed-minded communities.

Billboards teaches that in the face of adversity ‘anger only begets anger’ and it is only through genuine discourse that we can inspire a culture of tolerance that strikes a balance between liberty for the public and justice for the victim. thebrief.muls.org | 33

Where To From Here

Life After Death:

Is Posthumous Sperm Retrieval Always Justified?

Casey Thomas

H

uman tissue can be removed from a deceased person lawfully if they have given prior consent. This includes sperm. What if a person dies suddenly, and has not explicitly consented to the procedure? Courts in New South Wales and Queensland have granted the spouse of a deceased male the right to use the sperm for the purpose of artificial reproduction. However, how much attention the law should give to the circumstances surrounding a donor’s death is a contentious issue.

Certain trends can be identified in the cases where the posthumous retrieval and use of sperm has been granted. Usually, it is widows looking for the opportunity to conceive their partner’s child. In many cases, applications are rushed through the courts due to the time sensitive nature of the issue, as it is recommended that the procedure take place within 24 hours following the death. Usually, the male’s death is unexpected, and he had already expressed a wish to have children with his spouse.

One emerging trend is applications to grant postmortem sperm donations when a woman’s spouse has committed suicide.

In 2018 the Supreme Court of New South Wales confirmed that it cannot make orders for sperm retrieval when the donor has not confirmed their consent in writing, regardless of whether the

34 | The Brief

donor is unconscious or deceased. In Chapman v South Eastern Sydney Local Health District, Mr Chapman underwent an invasive medical procedure.

Unfortunately, without regaining consciousness he died due to medical complications. The Court held that it could not make an order for the retrieval of his sperm on the grounds of its parens patriae jurisdiction, as this power may only be exercised for the benefit of the incapable person (and not an unborn child). This case illustrates New South Wales’ strict approach to this issue.

On the other hand, in GLS v Russell-Weisz, the Supreme Court of Western Australia allowed a woman to use her de facto partner’s sperm for the purposes of conceiving his child. In this case, the woman’s de facto partner had died due to a sudden cardiac arrest. There was compelling evidence that the couple wished to have children together and had decided to postpone starting a family due to their financial situation. The plaintiff resided in the Australian Capital Territory, yet was able to take advantage of Western Australia’s more liberal laws in this area. The Court ordered that the sperm be transported from a fertility clinic in Western Australia to the Australian Capital Territory.

The above case can be distinguished from the Queensland case of Re Cresswell. This case arose from tragic circumstances, whereby the deceased Ed.2 2019

had a history of depression. Without any obvious warning signs, he took his own life. With the support of family, the deceased’s partner made an urgent application for the removal of his sperm, which was granted by an interlocutory order of the Court. The laws concerning consent in Queensland differ to New South Wales, in that the removal of sperm is allowed if the deceased did not express an objection to it. This stands in stark contrast to NSW’s requirement of written consent. Moreover, in Queensland the most senior next of kin available must also consent to the procedure.

Clearly, the laws relating to posthumous sperm retrieval vary significantly amongst Australian jurisdictions. One issue that is being approached differently by courts in each state and territory is the nature of the donor’s death, and whether it should have any bearing on the outcome of legal proceedings in this area. It raises the question: if someone gives up their right to life, do they also give up their right to be a parent? If the argument is framed in this way, it may lead one to question whether a deceased’s partner can maintain proprietary rights over the sperm.

To frame the debate in such a way is contrary to a broader trend in the Australian legal system, which is to put the rights of the child at the forefront.

It seems almost illogical that the courts have purposefully refused to consider the wellbeing of the unborn child. In grappling with this question, perhaps the most reasonable conclusion can come from revisiting a court’s parens patriae jurisdiction. Under these circumstances, the legal system is acting to protect the rights of the recently deceased.

They are ensuring that non-consensual medical procedures do not occur. After all, the procedure is invasive, and it Ed.2 2019

may constitute assault or trespass to the person if performed in the absence of consent or a court order. While laws on this issue vary amongst Australian states and territories, if a man is to take his own life, arguably a court would be inviting a rather obscure inference that consent can be made out following such a tragic turn of events. Perhaps in future a common law presumption will arise, whereby consent is presumed to not be found where the donor has committed suicide. The ability of the common law to evolve to such an extent is admittedly difficult, given the lack of uniform legislation in this area.

The most compelling argument against this proposition, (albeit on moral grounds and not a legalistic one) is consideration of the deceased’s partner and family members. The majority of court orders granting such procedures far outweigh successful applications to use the stored sperm. If the courts can accommodate the urgent nature of the procedure, then surely this should be done if it eases the immediate grief of the deceased’s loved ones.

If you or a loved one is in need of suicide prevention support, you are not alone.

Please call Lifeline on 13 11 14 or visit www.lifeline. org.au/gethelp. thebrief.muls.org | 35

Special

Mental Health for Lawyers

71,509

42.2%

Health: A state of complete

Mental health: A state

of whom practise in NSW

Aboriginal/Torres Strait Islander

50.1% female 49.9% male

15.6% male 4.9% female

2 in 5

42.4 years

were admitted for 15 years or longer

30-34 years old (17.1%)

Mean age

Largest percentage age group

Main components of a lawyer’s role: 89% legal advice, 56% legal policy / drafting, 56 transactional work, 46 managing team, 28 litigation %

%

Nearly

60

%

lawyers developed a dangerous eating habit

reported moderate to very high levels of psychological distress, from a 2009 Brain and Mind Research Institute study of around 2500 lawyers and law students

Transition

from

law student

%

20

%

good habits // know yourself // be mindful // self-coaching // have emotional intelligence

1.2%

lawyers practising (as at October 2016)

Partner in Corporate

Important to: implement

1 in 5 Australians will

physical, mental and social wellbeing and not merely the absence of disease or infirmity.

of wellbeing in which every individual realises his or her own potential, can cope with the normal stresses of life, can work productively and fruitfully, and is able to make a contribution to her or his community

Professionalism: integrity

and autonomy; competence and service; relatedness to others

Improving mental fitness: exercise, sleep-wake cycle, social relationships, turning work ‘off’

experience mental illness in any one year

to

professional

Develop confidence and competence // Accept inherent uncertainty about role, the law, people’s emotions // Value convergence between that of the individual and that of the firm // Find a network of friends // Relish your moments of success // Look out for your emotional health

24-Hour Crisis Public Mental Health Services and Therapies 000 All life-threatening emergencies Lifeline (crisis telephone counselling) Lifeline for Lawyers 13 11 14

Mental Health Line (NSW Health) 1800 085 062 / 1800 011 511 36 | The Brief

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Briefly, Global

Reframing An International Right To Health: From Positive Rights Mechanisms To Aspirational Goals In The Fight For Global Healthcare Brayden Winkler

T

he protection and promotion of health are vital aspects of maintaining the welfare of any given person, notwithstanding nationality or locality. Even so, the protection of this ostensible ‘right to health’ is by no means a straightforward matter. Although a positive right to health is a worthy goal, its suitability as a de jure right is dubious. There are many avenues available to approach the fulfilment of this right beyond governmental provision of healthcare, however, such differences between a direct right to health and an indirect right of access is beyond the scope of this paper. This article will examine the difficulties associated with a rights-based approach to health, concluding that it may be more useful to view healthcare as an aspirational goal to be achieved progressively over time in light of State-specific resource constraints, rather than as a binary right that will or will not have been supplied by a State. In answering this question, this article will focus on the positive character of a right to health, as well as the issue of establishing whether the right has been realised or not in a given context.

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The Problem Of Health As A Positive Right The right to health takes on many different appearances, given the inherently subjective nature of the content of ‘health’, how the right ought to be exercised, and the variety of ways in which access might be delivered. Nonetheless, the significance of this right to health is substantiated in a range of rights instruments including the Universal Declaration of Human Rights (UDHR) under ‘standard of living’, the International Covenant on Economic, Social and Cultural Rights (ICESCR) and in the Elimination of all Forms of Racial Discrimination (the ‘Race Convention’), amongst many others. The right is also key to the practice and philosophy of the World Health Organisation (WHO). Where not explicitly cited, the right to health can equally appear as being intrinsic to other human rights regimes, for example as a component of the right to life. Consequently, the pervasiveness of this right ought not be undervalued.

Remarkably, the right to health is a positive one; that is, a right to be subjected to an action of some kind by a person or group, such as a government.

In the present case, governments are obliged to act in the provision of healthcare services to its citizens.

This can be distinguished from negative rights which oblige inaction (for example, freedom from torture, slavery, etc.). This may become problematic. It is one thing for a State to refrain from or thwart certain conduct, and something entirely distinct for a State to be required to provide particular services or resources.

As noted, a right to health is not limitless, which indicates that a threshold exists to what might be thebrief.muls.org | 37

deemed healthcare by right, and healthcare otherwise.

A question is then raised as to which types of actions in the provision of ‘healthcare’ ought to be included in this former category as a right, and which should be recognised as something less than a positive right.

For example, vaccination may be considered to fall within the former, and cosmetic surgery in the latter, but a procedure like cataract surgery may be said to fall somewhere in between. In essence, healthcare as a positive right possibly suffers from an issue of vagueness – a State cannot ever conclusively be said to have met its obligations due to the inherent abstract nature of health. In contrast, negative rights are generally more objective, however naturally this is not always the case: a State either tortures, or it does not (and yet the threshold line distinguishing acts of torture from, say, mere ill treatment remains unclear). This possibly indicates that a right to healthcare is better thought of as an aspirational goal to be progressively achieved over time, rather than as a binary right that will or will not have been fulfilled by the State.

A Universal Standards Deficit Given the construction of the right to health in international law is universal in nature, as inferred by its inclusion in WHO literature and various UN instruments, further uncertainties stem from the nonuniversal nature of healthcare resources world-wide.

For instance, it may be regarded a derogation from the right for a resource-rich State like Australia to decline to offer cataract surgery to treat blindness in the elderly. Simultaneously, it would be incongruous 38 | The Brief

to describe a developing State like South Sudan as having failed to meet its right to health obligations for manifesting the same State practice, given its own resource constraints. Therefore, it stands to reason that the aspirational goal of healthcare access is being insincerely treated as a universally objective right, despite the fact that the right can be framed in many different ways depending on geopolitical contexts. Indeed, such a concession can be seen to have been made by the WHO itself, which instead has pronounced the ‘right’ as being realised so long as a State uses its available resources effectively – even if practical health goals themselves are not realised.

It can therefore be seen that thoughtful questions arise as to whether the international right to health operates as a practical and positive right, or whether it simply exists as an important goal incorporated into rights regimes as a means of progressively achieving the goal over time. Proper evaluation and enforcement are arguably essential elements to the existence of binding positive rights, however this cannot be said to be the case for a right to health as its content is nebulous. Thus, whilst it is certainly true that maximising access to healthcare is an enormously important aspirational goal, positioning this as a binding positive right, and thereby mandating this indistinct action by a State, holds uncertain practical relevance. It is more beneficial to reframe the international right to health as an aspirational goal so as to achieve greater consensus among the international community of States.

Ed.2 2019

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