Australian Federal Court Research Articles

Plaintiff S99: Rewriting Refugee Law Through a Trauma-Informed Lens

Abstract Plaintiff S99/2016 v. Minister for Immigration and Border Protection [2016] FCA 483 was a decision of the Australian Federal Court concerning a woman (referred to in the decision as “Plaintiff S99”) who had been recognised as a refugee in the Republic of Nauru, having been transferred there by Australia under an offshore processing agreement. The decision in Plaintiff S99 established an important precedent that many refugees and asylum-seekers in Australia’s offshore processing centres on Manus and Nauru, including children with severe health problems, subsequently relied upon to be transferred to Australia for critical medical care. Drawing on the recent turn towards trauma-informed practice across other areas of law and policy, we ask: what does this mean for refugees, and, more specifically, what does this mean for judgment writing in refugee law? We use our rewrite of Plaintiff S99 to highlight aspects of the decision and its legacy that continue to silence and erase the experiences of refugees, especially refugee women, and frequently contribute to compounding their trauma. Our contribution calls for a reorientation towards “do no harm” principles, which lie at the heart of trauma and violence-informed practice. In particular, our approach to rewriting S99 aims at foregrounding dignity and safety, promoting respect for physical and mental health, and centring the voice, experience, and longer-term protection needs of refugees.

The Living Wonders case: A Backwards Step in Australian Climate Litigation on Coal Mines

Abstract As one of the world’s largest exporters of coal and gas, Australia’s domestic regulation of fossil fuels plays an important part in global greenhouse gas emission reduction efforts. This analysis examines the Australian Federal Court’s Living Wonders decision—the latest judicial review challenge to coal mines based on Australia’s federal environmental law, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).1 This legislation has significant flaws as a tool for regulating the climate impacts of fossil fuel projects, which the Living Wonders decision emphasises. The Federal Court found no legal error in the Environment Minister’s reasoning that large export-oriented coal mines will produce ‘no net increase’ in global emissions and/or have emissions which are too ‘small’ to warrant detailed assessment under the EPBC Act. The Living Wonders judgment delivers a blow to hopes for progressive, climate-friendly interpretation of Australia’s federal law in coal litigation and strengthens arguments for law reform.

Profits Before Patients? Rethinking the Shareholder Primacy Model of Corporate Governance for Health Care

Concerns about the ballooning cost of health care and medicine are at the heart of perpetual debate about the corporate accountability of health care corporations. This essay critiques the shareholder primacy model of corporate governance for health care enterprise using the American pharmaceutical company Merck as a small sample case study that might be indicative of broader corporate governance issues generally, that deserve further research. In 2009 an Australian Federal Court class action was led by Merck product patient users against Merck’s Australian subsidiary, for allegedly failing to withdraw the drug Vioxx from the market. The patient group claimed that Merck insiders knew Vioxx increased the risk of heart attacks, yet persisted to manufacture and market the drug to secure profits for shareholders. At first instance, the trial judge awarded damages in favor of the original plaintiff claimant, finding that the drug had caused the claimant's alleged heart risk injury. However that decision was overturned on appeal, with further leave to appeal to the High Court of Australia being refused on 11 May 2012. Simultaneously, settlements between the company and other groups of claimants involving the same drug, have been and are continuing to be reached in other jurisdictions around the world in 2013.The case more generally evokes a familiar normative question of to whom a duty of care is and should be owed by health care corporate decision makers: shareholders, patients, or both? This paper briefly answers that question by critically analysing the market impact of the shareholder primacy model of corporate governance, on end user health care patients by transforming them from patients into consumers. The paper then constructs a potential solution in the form of an evolved shareholder primacy model of corporate governance which encompasses a value duty of virtue to shareholders that potentially meets the interests of both shareholders and patients.

Addressing Cultural Difference in Indigenous Copyright Cases

ABSTRACT This article presents and discusses two different ways through which the Ganalbingu people (Australia) addressed cultural differences in the normative conceptualisation of artworks in a judicial setting. The analysis focuses on linguistic conduct held by the plaintiffs, their representatives, and expert witnesses in two cases discussed before the Australian Federal Court (Northern Territory): Bulun Bulun v Nejlam Pty Ltd (1989) and Bulun Bulun v R & T Textiles Pty Ltd (1998). In both cases, Ganalbingu artist Johnny Bulun Bulun lamented a violation of his copyright in two paintings. This article mostly relies on affidavits and judicial documentation, and aims to show and attempts to explain the existence of two opposed tendencies in the judicial narrative on copyright law: namely, an enforced (attempt to) assimilation of Ganalbingu culture to the Western legal categories of (intellectual) property and copyright law, however simultaneously 'insisting on difference', that is emphasising the fundamental distinctions between Ganalbingu and Western normative conception of artworks. The article particularly enlightens the impact on the Ganalbingu judicial narrative of anthropological accounts rendered through affidavits, especially in one of the two cases in which Bulun Bulun was involved. After investigating the nature and function of those accounts, it concludes that several factors can explain the seemingly ambivalent nature of Ganalbingu linguistic conduct, ranging from a ‘spurious’ nature of misappropriated artworks to forms of resistance to an unbalance of power potentially leading to unwanted colonisation.

The Montara Class Action Decision and Implications for Corporate Accountability for Australian Companies

A ground-breaking judgment of the Australian Federal Court regarding the Montara oil spill in the Timor Sea in 2009, Sanda v PTTEP Australasia (Ashmore Cartier) Pty Ltd (No 7) (Sanda (No 7)),1 is one of the few Australian class actions to proceed to a favourable judgment for the claimants. It is also the first judgment against an Australian company for cross-border pollution loss suffered by foreign claimants.

Artificial Intelligence and Agents

With the increasing sophistication of AI and machine learning as implemented in electronic agents, arguments have been made to ascribe to such agents personality rights so that they may be treated as agents in the law. The recent decision by the Australian Federal Court in Thaler to characterize the artificial neural network system DABUS as an inventor represents a possible shift in judicial thinking that electronic agents are not just automatic but also autonomous. In addition, this legal recognition has been urged on the grounds that it is only by constituting the electronic agents as legal agents that their human principals may be bound by the agent’s actions and activities, and that a proper foundation of legal liability may be mounted against the human principal for the agent’s misfeasance. This paper argues otherwise. It contends that no matter how sophisticated current electronic agents may be, they are still examples of Weak AI, exhibit no true autonomy, and cannot be constituted as legal personalities. In addition, their characterization as legal agents is unnecessary because their actions (and misapplications) can be legally addressed by the under-appreciated instrumentality principle. By treating the electronic agents as instruments or extensions of the acts of the human principal, issues in contract and tort law can be readily resolved. This essay concludes that until a Strong AI application can be demonstrated, the issue of legal agency of electronic agents ought not to detain the development of technology and of the law in this space.

AI as an Inventor: Has the Australian Federal Court Erred in DABUS?

AI as an Inventor: Has the Australian Federal Court Erred in DABUS?

Artificial Intelligence Systems as Inventors? A Position Statement of 7 September 2021 in View of the Evolving Case-Law Worldwide

On 30 July 2021 the Federal Court of Australia handed down a decision in which it accepted that an artificial intelligence (AI) system called DABUS can be deemed the inventor under Australian patent law. While the decision appears ground-breaking at first sight, it was mostly based on unverified assumptions regarding the technical capabilities of AI systems in general and DABUS in particular. Furthermore, the decision omits important questions regarding the consequences that may follow from attributing inventorship to an entity that lacks legal capacity without undertaking a comprehensive analysis that would justify such attribution. This Position Statement highlights the shortcomings of the decision and points to those factual and legal questions that need to be answered first before recognising AI systems as inventors. While it responds primarily to the decision of the Australian Federal Court, the presented arguments can be of relevance for any jurisdiction dealing with the question of whether an AI system can be deemed an inventor under patent law.

DABUS gains territory in South Africa and Australia: Revisiting the AI-inventorship question

This paper draws from and builds upon DO Oriakhogba ‘What If DABUS Came to Africa? Visiting AI Inventorship and Ownership of Patent from the Nigerian Perspective’ (2021) 42(2) Business Law Review 89. It reviews the recent granting of a patent by the Companies and Intellectual Property Commission (CIPC) to Dr Stephen Thaler in respect of the DABUS-generated invention in South Africa and the judgment of the Australian Federal Court (FCA) upholding AI-inventorship. The review, which is based on desk research, is conducted against a backdrop of statutory provisions and case law from both countries, the provisions of the Patent Cooperation Treaty (PCT) and relevant literature dealing with the inventorship question. The paper determines whether, without reform of the extant patent law and policy, recognition of artificial intelligence (AI) as an inventor does not undermine the foundational concept of human inventorship, and the central focus on human creation and agency for intellectual property protection in South Africa and Australia. In connection with this, the paper asks and examines the question of whether the CIPC patent grant and the FCA judgment can stand judicial scrutiny under the extant patent regimes in South Africa and Australia.

It Ain't Necessarily So: Australian Competition and Consumer Commission v Pfizer Australia Pty Ltd and the Reasons for Reforming s 36 of the Commerce Act

The Government has indicated it is going to amend s 36 of the Commerce Act 1986. Its reasons are that s 36 fails to capture sufficient anticompetitive conduct, is difficult and complex to apply and makes litigation unpredictable. The Government proposes a substantial lessening of competition test which it claims will capture more conduct, make analysis more straightforward and provide a source of Australian authority for New Zealand courts. This article uses an Australian Federal Court case, Australian Competition and Consumer Commission v Pfizer Australia Pty Ltd, to show that the claims for reform are overstated and in some cases incorrect. It argues the foundations of the case for reform of s 36 are wobbly and infirm.

Justice Paul Desmond Finn: An Australian Dimension to the Cambridge Eminent Scholars Archive

Judge Paul Finn of the Australian Federal Court, who is the 2010-2011 Goodhart Professor was interviewed for ESA in Dec 2010. Judge Finn’s erudite and thought-provoking interview has provided students of English law with a fascinating insight into the evolution and “state of play” of a Common Law jurisdiction with which they may be less-familiar. At the same time, his views on a range of topics may give a contemporary mirror in which Australian readers can view their country’s legal developments. Here, I summarise some of these topics. Included is his elevation to the bench from academia - hitherto an unusual event; Justice Finn’s views on the law as an applied discipline, and reminiscences of his career-long fascination with the principle of fiduciary principles in equity, and his views on the question of discretionary remedies in equity cases. There is also a commentary on his explanation of the importance of understanding the historical development of law in the states of Australia, and his enunciations on what he calls “state socialism”, as well as his explanation for the early abolition of the principle of Crown immunity. An important aspect are his views on Native Title in relation to the Torres Straits islander and the concept of terra nullius and other important cases with which he has been involved. Included is his revelation of highly relevant information collected by the Haddon expeditions in 1898-99, now housed in the Museum of Archaeology & Anthropology at Cambridge. The summary finishes with some of Justice Finn’s observations on Australian government and the role of political parties vis a vis statutory boards, and some reminiscences on his membership of UNIDROIT in the 2000s and the issue of “good faith” in Australian contract law.

Heroes and villains: a discourse analysis of Australian and Japanese whaling reports in newspapers

Japan’s whaling in the Southern Ocean has been a contentious issue in Australia, typified by a systematic and widely supported anti-whaling campaign. This resistance came to a head on 15 January 2008 with the advent of two events; the boarding of a whaling ship by protestors, and the ruling of the Australian Federal Court that Japan’s whaling breached Australian Law. Our comparative discourse analysis of Australian and Japanese media reportage of these events illustrates how each country has constructed alternative realities reflective of their respective pro or anti-whaling agendas. The constructs in each discourse are distinct; the former full of heroes and villains, the latter filled with scientific researchers. Not only does this underscore the depth of the ideological divide, but it raises the issue of journalistic objectivity and the role that journalism plays in influencing public affairs. We suggest that journalists need to think carefully about the consequences of their (mis)-representations and either acknowledge their partisanship and be held to account, or strive for more balance in reporting events.

Green Lawfare: Environmental Public Interest Litigation and Mediatized Environmental Conflict

ABSTRACTCommunication strategies involving news media and environmental groups are well documented and research into protest politics and other forms of environmental communication has made considerable progress in the analysis of the strategies that various actors use to influence environmental policy. There is less scholarship, however, on the journalistic representation of the legal strategies employed by environmental non-government organizations, such as the mediatized debates about the use of law by these groups and the laws themselves. Further, while legal scholarship observes the role of public interest litigation in environmental matters, the role of news media as an influential force in public opinion formation and mobilization in the context of environmental litigation as an activist strategy remains less understood. Using the 2015 “green lawfare” debate in Australia that followed a successful Australian Federal Court challenge to a coalmine, this paper argues that the “mediatized visibility” inherent in public interest litigation is an important, but mostly overlooked, element of mediatized environmental conflict.

The diminished stakeholder: Examining the relationship between suppliers and supermarkets in the Australian grocery industry

AbstractThis study examines the role of stakeholders in the context of the retail industry, specifically the Australian supermarket industry. Through the lens of stakeholder theory, it is argued that suppliers to the Australian supermarket duopoly (Coles and Woolworths) might be considered “diminished” stakeholders, that is, they lack in urgency, legitimacy, and power. Using a case study methodology, this study analyses two separate cases of Coles and Woolworths' treatment of suppliers during the period 2011 and 2014. In the two cases, Australian Federal Court proceedings were brought by the Australian Competition and Consumer Commission against both supermarkets for “unconscionable” behaviour towards their suppliers. The study also examines the impact of the relationship between Coles and Woolworths and their suppliers on consumers as the end‐user in the chain of consumption. The paper argues that the ethical treatment of suppliers by supermarkets will lead to better outcomes for both suppliers and consumers and contribute to the long‐term sustainability of the firm.

How about me? The scope of personal information under the Australian Privacy Act 1988

A recent Australian Federal Court decision has raised the issue of the scope of information protected under the Australian Privacy Act 1988. The Court failed to adequately address this question, leaving Australians unsure as to whether sections of their information, such as the IP addresses allocated to their mobile devices, will be considered personal information under the Act. The main consideration the Court dealt with was what it means for information to be “about” an individual. In this paper I address two questions: a) how is information determined to be “about” an individual under the Act; and b) how should this determination be made in the future? I conclude that currently available guidance from the courts, the Australian Information Commissioner and scholarly commentary are inadequate to enable individuals, organisations and agencies to consistently make such determinations. Accordingly I draw on approaches to this question taken in Canada, New Zealand, the European Union and the United Kingdom to argue that the definition should be broadly interpreted in a technologically-aware manner. This will help to ensure that personal information is more comprehensively protected under the Privacy Act.

Australian Federal Court clarifies statutory termination rights in patent licence agreement

Australian Federal Court clarifies statutory termination rights in patent licence agreement

Carved out indications and patents in Australia: The story continues

The decision of the Australian High Court in Apotex Pty Ltd v Sanofi-Aventis Australia Pty Ltd (the leflunomide case) gave the highest judicial endorsement to the practice of “carving out” patented treatment indications from the registered indications for a new generic drug. The High Court held in that case that the removal of reference to any patented treatment indication was sufficient for the generic entrant to avoid liability for contributory or secondary patent infringement. It remained to be seen, however, how this judicial authority would be applied in other circumstances. We now have further judicial guidance on the approach that courts are likely to take to this issue and this article examines a recent decision of the Australian Federal Court applying the “leflunomide principle” in the context of a preliminary injunction application.

Gene patents--a win for all

In a landmark decision the Australian Federal Court confirms that isolated nucleic acids encoding genes and their biological products are patentable subject matter, and that naturally occurring DNA or RNA as they exist inside cells of the human body are not patentable. This provides much-needed reassurance to the biotechnology industry and patients alike.

Esomeprazole in the Australian courts: The acid test

A number of decisions have already been handed down this year by the Australian Federal Court in a series of pharmaceutical patent challenges. The most recent of them is the decision in the esomeprazole case. At issue was the validity and infringement of three patents: the so-called purity patent claiming an optically pure salt of the (−)- enantiomer of omeprazole, including the magnesium salt; the so-called multiple unit tableted dosage form patent claiming, amongst other things, omeprazole or one of its single enantiomers or an alkaline salt thereof in a tablet form with defined characteristics; and the so-called 774 patent claiming an oral pharmaceutical dosage form comprising, amongst other things, a proton pump inhibitor including omeprazole or the (−)- enantiomer of omeprazole. This case is another example of the Federal Court complying with the parties’ express desire for a prompt delivery of reasons for judgement. After a hearing of some weeks, which concluded on 28 March 2013, there were final written submissions filed on 12 April 2013. The parties (and in particular Ranbaxy) requested a determination preferably by no later than 23 April 2013. That gave Justice Middleton just under one month from the conclusion of the hearing and only 10 days after the final written submissions to deliver a judgement with respect to the validity of three separate patents, each of which was attacked on numerous bases including lack of novelty, a lack of inventive step and manner of manufacture. His Honour’s judgement extends to 1017 separate paragraphs over 148 pages. Although the decision does not traverse any astoundingly new ground or offer any particularly insightful new approach to the conventional validity attacks that were mounted, some general observations may be of interest.

The vexed issue of therapeutic combinations and contributory patent infringement in Australia

The Australian Patents Act includes a provision which deems the supplier of a product to a person who will use that product in a manner which infringes a patent to infringe that patent as a contributory infringer. The concept of contributory patent infringement is one known to the patent laws of many countries, but in many respects the way in which Australian Courts have approached contributory patent infringement gives far greater scope to a patentee than in many of those jurisdictions. The consequence for the generic pharmaceutical industry in Australia is potentially far-reaching. This article looks at the practical consequences of some recent Australian Federal Court decisions which have been decided in the area and which create practical hurdles that any generic entrant into the Australian marketplace will need to navigate.