Peering over the horizon: the legal landscape

In its modern form, the contest is usually between those who produce or finance technological innovations and those who wish to build on those innovations. The Australian Law Reform Commission’s 2004 report on Gene Patenting and Human Health attempts to steer a path between encouraging technological innovation and avoiding excessive protection to the holders of patents over genetic materials and technologies.

The path is, however, by no means easy to chart when many holders of intellectual property rights not only wield considerable influence themselves, but have the support of economically powerful nation states in constructing an international order that protects and advances their interests.

In a recent High Court decision, the copyright holder was given considerably less protection than it sought. That decision is, however, only one battle in a much wider war. The Australia-United States Free Trade Agreement requires Australia to legislate, by January 1, 2007, to adopt a broad definition of “technological protection measures”. The implementation of this requirement, no doubt designed to protect the investment of copyright holders in electronic games, may well effectively overturn the decision of the High Court.

A second group of emerging issues relates to the perceived demands of national security. It is clear enough that a great deal of the time of parliaments, the courts and law enforcement agencies will be taken up with measures intended to combat the activities of terrorist organisations and the actions of individual terrorists.

The events of September 2001 led to a summit of Commonwealth, State and Territory leaders in April 2002, at which the States agreed to refer their powers relating to “terrorist acts” to the Commonwealth. The referral of power was followed by the enactment of Commonwealth legislation creating a variety of offences relating to terrorism.

The new statutory regime now includes the Anti-Terrorism Act (No 2) 2005 (Cth). This legislation introduces new grounds for proscribing terrorist organisations; creates new terrorism-related offences; establishes a regime of “control orders” designed to restrict and monitor the movements of persons suspected of terrorism; sets up a preventative detention regime which authorises the detention of persons without charge for the purposes of interrogation by security agencies; expands police powers for warrantless searches and seizures; and enhances the information and intelligence gathering capacity of police forces and security agencies.

More recent legislation has greatly expanded the powers of law enforcement agencies to intercept communications between innocent persons and suspected wrongdoers.

The Australian Law Reform Commission has been charged with responsibility for reviewing the so-called sedition laws enacted by the Anti Terrorism Act. In the meantime, the first criminal trials under modern anti-terrorism legislation have taken place. Undoubtedly more will follow. And, equally clearly, law enforcement and intelligence agencies will take advantage of their expanded powers.

A third looming challenge is to subject the behaviour of private corporations that have taken over the functions of government agencies to appropriate competitive and regulatory constraints.

As the ideology of the free market has taken hold in both the domestic and international spheres, functions that only recently were regarded as the inalienable responsibility of government are now discharged, wholly or in part, by the private sector.

The new “contractualism”, as one aspect of privatisation is sometimes described, even extends to decision-making in connection with eligibility of individuals for income support. The traditional mechanisms for regulating the activities of public sector agencies may not be suitable for private corporations, or may be unavailable as the result of a judicial hesitancy to adapt administrative law principles to new circumstances.

It is true that the activities of “private” corporations are subject to the constraints of competition law and often to supervision by regulatory bodies such as the Australian Competition and Consumer Commission. But competition law may be a blunt and ineffective constraint in markets that are small by world standards and may support only two or three participants. Regulatory controls, especially when they are invoked after the event, may prove less effective than the traditional forms of direct political accountability. An effective balance has yet to be struck.