Peering over the horizon: the legal landscape

Though few of us resist, attempting to peer over the horizon is an undertaking fraught with difficulty. Yet if we succeed, we might not like what we see. It does not take much foresight to identify many formidable global problems that if not addressed effectively in the near future could well produce very serious consequences for mankind.

Since Australia is a part of the international community, the tyranny of distance, which has been such a comfort in the past, will not save us from these consequences. Indeed, the impact on Australia, in some cases, may be greater than on other parts of the world.

It will come as no surprise that the melancholy list includes:

• the proliferation of nuclear weapons, not least in or near our own region;
• the threats posed by international terrorism, aided and abetted by inept responses and intensified by the awful prospect of weapons of mass destruction falling into the hands of terrorists. (While the potential threat from global terrorism is no doubt great, the fact is that the numbers of people killed or injured to date by “terrorist” acts is very small compared with the dire consequences of famine, wars and preventable diseases in Third World countries.)
• global population growth, more specifically the impact on the environment of many more people in developing countries aspiring to and attaining First World lifestyles. Residents of First World countries can hardly complain when residents of developing countries seek the same creature comforts as they have enjoyed for decades. But the effect is to intensify greatly the demand for finite resources and to generate vastly increased levels of waste;
• the degradation of the global environment, including ocean fisheries, forests and water and soil resources brought about by over-exploitation, land clearing and pollution;
• the effect of climate change, a phenomenon which will have a differential impact on various parts of the world, but which can be expected to have severe consequences for Australia’s fragile environment;
• the possibility of pandemics and the spread of diseases which are difficult to treat or control. A recent example is the disastrous spread of HIV-AIDS throughout the world, but particularly in some developing countries, where as a result life expectancy has deteriorated to shocking levels; and
• population ageing, especially in developed countries.

For those who prefer a dose of optimism, some foreseeable developments offer the hope of improving or enriching human life - while at the same time presenting complex regulatory challenges for governments. Some examples include: a better understanding of the molecular and genetic bases of life, opening the way to the use of diagnostic tests to assess the risk of disease and to determine appropriate treatment; the development of new pharmaceuticals and gene and cell therapies to repair damage: and the tailoring of medication to the individual genetic make-up of patients.

The new biotechnology offers the chance of deferring once again the Malthusian doomsday prediction that population growth will outstrip the rate of increase in food production. While the introduction of genetically modified (“GM”) crops arouses grave concerns about unintended environmental consequences, some see great benefits and view the opposition to GM technology as an example of misplaced “eco-fundamentalism”.

The embrace of free market ideology by certain developing countries, within a framework of diminishing barriers to international trade, has contributed to the liberation of tens of millions of people from the crushing degradation and hopelessness of grinding poverty.

The two most populous countries on Earth, China and India, have seen in recent years some of the most profound and rapid improvements in living standards in human history. It is true that benefits have been unevenly distributed and have come at a high environmental cost. And, as the experience in China suggests, higher living standards do not necessarily translate into greater political freedom or respect for human rights. But the experience in those two countries and elsewhere in Asia offers long-term hope, even for the despairing people of so much of Africa.

The extraordinary advances in communications technology have not only expanded the sources and retrievability of information and ideas, but have made the information and ideas instantaneously accessible to vast numbers of people throughout the world. The Internet and such innovations as satellite technology have made it even more difficult to suppress the free exchange of ideas and therefore, over time, more difficult to halt the movement towards democratic ideals and respect for human rights.

The emergence of trans-national criminal tribunals, the authority of which is backed by the international community, renders some of those responsible for gross abuses of human rights accountable for their actions. Progress on this front is slow and to some extent selective (the winners have always written and rewritten history), but the developments build on the precedent set by the International Military Tribunal which tried Nazi war criminals at Nuremburg.

Issues for the future in Australia

What do these developments mean for Australian domestic law in the foreseeable future? Some matters have already been identified as significant by governments, policy makers or the courts.

One is the contest between the proponents of the ever-expanding boundaries of intellectual property rights and those who emphasise the benefits to be derived from the free dissemination and utilisation of scientific and medical advances or, for that matter, the products of the human imagination.

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.

A fundamental question

As important as these issues will be, there is a more fundamental question that the Australian community must face. It concerns the very nature of Australian democracy.

In one (increasingly fashionable) view, democracy is one-dimensional. If the government is elected by the people at free and fair elections, the system of government is democratic. It is this majoritarian view that seems to underlie efforts to “bring” democracy to countries in the Middle East that have never experienced freedom as understood in Western political theory.

The same majoritarian concept also seems to underpin the common criticism levelled at proposals to entrust “unelected judges” with the power to determine whether legislation is compatible with human rights norms. The critics are undeterred even where the ultimate legislative authority remains with Parliament.

True democracy is not, however, a one-dimensional concept. If there is one thing that modern history teaches, it is that even a freely elected government is capable of perpetrating egregious human rights abuses. Virtually all parliamentary democracies have recognised this truth by adopting, in one form or another, a bill of rights which mirrors international human rights norms. The major exception is Australia.

In times of anxiety and fear, individual rights inevitably come under threat. The primary threat to individual freedom is not from terrorists or their fellow travellers, but from well-intentioned measures that curtail liberty in the interests of national security. High levels of anxiety and fear are usually sufficient to ensure the requisite degree of public support for the measures.

In Australia, there are relatively few mechanisms to curb excessive legislative or political responses to perceived dangers. The Constitution is bereft of a bill of rights and those few provisions that expressly protect individual rights have generally been given a narrow meaning.

While it is open to the States to introduce their own statutory guarantees of human rights, such legislation can have little effect on Commonwealth laws or executive actions.

International law, which exerted a powerful influence on domestic law in the aftermath of World War II, is now less and less a constraint on legislative or executive action, particularly when national security is thought to be at stake.

The greatest human right, so it is repeatedly said, is the right to life and safety, as if this provides an answer to the dilemma of reconciling the public interest in security with individual rights and freedoms.

There is no doubt that Australia will remain a democracy for the foreseeable future. But what kind of democracy will it be? The answer lies over the horizon.