Google liability for misleading or deceptive conduct: Australian perspective

On 6 of February 2013, the Australian High Court handed down an important decision in respect of the Google Inc's (Google) appeal against the decision of the Full Federal Court of Australia, holding that Google a search engine operator was not liable under s 52 of the Trade Practices Act (TPA) 1974 (Cth) for misleading or deceptive conduct (in respect of misleading advertisements published using Google's online ‘AdWords program’). The decision of the High Court is of great significance for jurisprudence on misleading and deceptive conduct with its broad implications for search engine providers such as Google, advertisers and trademark owners.     

Grant v Commissioner of Patents and patenting knowledge inventions

This article reviews the Full Federal Court decision in Grant v Commissioner of Patents (2006) 154 FCR 62; 69 IPR 221; [2006] FCAFC 120 denying patentability to a method for structuring a financial transaction so as to protect an individual's assets from a loss of ownership as a result of a legal liability. The article challenges the distinctions drawn by the Full Federal Court and argues that the decision marks a new development in setting a boundary for the Patents Act 1990 (Cth) "manner of manufacture". The article concludese that important questions now arise in assessing the possible application of the Patents Act 1990 (Cth) to promoting some inventions (and innovations) and not others, and whether there are other classes of inventions that also do not require the Patents Act 1990 (Cth) incentives.     

To lease or not to lease? The leasing of indigenous statutory lands in Australia: lessons from Canada

In Australia, land rights legislation provides statutory schemes for the transfer of land to Indigenous peoples. The first significant land rights legislation was passed by the Australian Commonwealth government in 1976. This was the Aboriginal Land Rights (Northern Territory) Act (ALRA) 1976 (Cth). In 2006, the Australian Commonwealth government passed significant amendments to the ALRA. One of the key amendments introduced the leasing of Aboriginal ‘township lands’ held under that Act. It is these leasing amendments which are a focus of this article. A primary motivation behind the amendments was to decrease poverty in Indigenous communities and to allow for economic development on Aboriginal lands. This article critiques the township leasing scheme under the amended Act. It questions whether the new leasing arrangements are the most appropriate forms of leasing to achieve economic development on Aboriginal lands and to benefit the Aboriginal communities who hold these lands. In 2008, leasing amendments were passed to Queensland's statutory land scheme in the Aboriginal Land Act 1991 (Qld) and these amendments are subject to review in this article. Furthermore, the article examines alternative forms of leasing used for economic development on Indigenous reserve lands in Canada and whether there are lessons that Australia could learn from these tenures and their modes of leasing.     

Which bank? A guardian model for regulation of embryonic stem cell research in Australia

In late 2005 the Legislation Review: Prohibition of Human Cloning Act 2002 (Cth) and the Research Involving Human Embryos Act 2002 (Cth) recommended the establishment of an Australian stem cell bank. This article aims to address a lack of discussion of issues surrounding stem cell banking by suggesting possible answers to the questions of whether Australia should establish a stem cell bank and what its underlying philosophy and functions should be. Answers are developed through an analysis of regulatory, scientific and intellectual property issues relating to embryonic stem cell research in the United Kingdom, United States and Australia. This includes a detailed analysis of the United Kingdom Stem Cell Bank. It is argued that a "guardian" model stem cell bank should be established in Australia. This bank would aim to promote the maximum public benefit from human embryonic stem cell research by providing careful regulatory oversight and addressing ethical issues, while also facilitating research by addressing practical scientific concerns and intellectual property issues.     

A bad trip for health-related human rights: implications of Momcilovic v The Queen (2011) 85 ALJR 957

Momcilovic v The Queen (2011) 85 ALJR 957; [2011] HCA 34 arose from a prosecution for drug trafficking brought under the Drugs, Poisons and Controlled Substances Act 1981 (Vic). The Australian High Court held that the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) validly conferred a power on the Victorian Supreme Court and Court of Appeal to interpret legislation in a manner consistent with a defined list of human rights. By a slim majority it also held that the Charter validly created a judicial power to "declare" a law inconsistent with one or more enumerated human rights. In reaching its decision, however, the majority supported a narrow interpretation likely to undermine the intended capacity of the Charter to act as a remedial mechanism to reform laws, regulations and administrative practices which infringe human rights and freedoms. Although Momcilovic involved interpretation of a specific State human rights law, the High Court judgments allude to significant problems should the Federal Government seek to introduce a similar charter-based human rights system. Momcilovic, therefore, represents a risk to future efforts to develop nationally consistent Australian human rights jurisprudence. This has particular relevance to health and medically related areas such as the freedom from torture and degrading and inhuman treatment and, in future, enforceable constitutional health-related human rights such as that to emergency health care.     

Abortion laws and medical developments: a medico-legal anomaly in Queensland

In October 2010 the District Court sitting in Cairns, Queensland, found Tegan Leach not guilty of attempting to procure her own abortion and Sergie Brennan not guilty of supplying Leach with the drugs Mifepristone and Misoprostol to procure an abortion. Brennan obtained the drugs from his sister in the Ukraine through the regular postal system. R v Brennan and Leach was the first case in Queensland's history where a woman was charged with procuring her own abortion. The drugs are accepted by the medical profession worldwide for medical abortions. A prosecution witness gave evidence that Mifepristone is not harmful or injurious to the health of a woman and it is listed as an essential medicine by the World Health Organisation and approved for use by the Australian Therapeutic Goods Administration. The jury found the defendants not guilty because they were not satisfied beyond reasonable doubt that the combination of the drugs Mifepristone and Misoprostol was a "noxious" substance under the Criminal Code (Old). This article concludes that there is no regulatory miracle which will stop the traffic of Mifepristone and Misoprostol into Australia and therefore an intelligent regulatory response is required which would make it unnecessary for women to seek Mifepristone and Misoprostol from overseas networks and the internet. Among other things, this would include the repeal of confusing, inappropriate and ineffective abortion laws.     

"Chartering" the limits of involuntary psychiatric treatment in Victoria: interpreting the Mental Health Act 1986 (Vic) in the age of the Charter of Human Rights and Responsibilities Act 2006 (Vic)

The Mental Health Act 1986 (Vic) allows for individuals with a serious mental illness to be treated on an involuntary basis either in a psychiatric hospital (on an involuntary treatment order) or in the community (on a community treatment order). The Act also establishes the Mental Health Review Board with the authority to review these orders within eight weeks of those orders being made and at least once every 12 months thereafter. This article analyses a recent decision of the board, Re Appeal of 09-085 [2009] VMHRB 1, in which the appellant challenged a decision of a psychiatrist to extend his community treatment order for a further 12 months. The appellant argued that aspects of his involuntary treatment under the Act amounted to "cruel, inhuman or degrading" treatment and therefore breached his right to freedom from "cruel, inhuman or degrading" treatment under s 10(b) of Victoria's recently enacted Charter of Human Rights and Responsibilities Act 2006 (Vic). Thus, the board was asked to consider whether the definition of "treatment" under the Act was compatible with the rights and freedoms enacted by the Charter. This was the first time that a Victorian court or tribunal had considered the impact of the Charter on involuntary psychiatric treatment. The decision was also a prelude to the Victorian Government's announcement that it would comprehensively review its mental health legislation, now the oldest in Australia. As this case highlights, in determining the future direction of mental health legislation and policy in Victoria, the Charter has been crucial.     

Limitation on federal participation for capital expenditures--PHS. Notice of proposed rulemaking

Section 1122 of the Social Security Act, "Limitation on Federal Participation for Capital Expenditures," establishes under which the Secretary may deny Federal reimbursement under titles XVIII and XIX of the Act for expenses related to capital expenditures by or on behalf of health care facilities (1) which the health planning agency designated for a State has found to be inconsistent with standards, criteria, or plans developed under the Public Health Service Act, or (2) for which the designated planning agency was not provided notification as required. These proposed regulations include changes in the regulations now codified at 42 CFR Part 100 based on (1) the proposed amendments to the regulations published in the Federal Register on March 19, 1976, and comments submitted in response to that Notice, (2) the amendments to Title XV of the Public Health Service Act enacted by the Health Planning and Resources Development Amendments of 1979 (Pub. L. 96-79), the Health Programs Extension Act of 1980 (Pub. L. 96-538), and the Omnibus Budget Reconciliation Act of 1981 (Pub. L. 97-35), and (3) the amendments to section 1122 enacted by the Health Maintenance Organization Amendments of 1978 (Pub. L. 95-559), the Omnibus Budget Reconciliation Act of 1981 (Pub. L. 97-35), and the Social Security Amendments of 1983 (Pub. L. 98-21). Interested persons are invited to submit written comments and suggestions concerning this Notice of Proposed Rulemaking (NPRM).     

Economic impact of Wicks v State Rail Authority (NSW) (2010) 84 ALJR 497

In Wicks v State Rail Authority (NSW) (2010) 84 ALJR 497 the High Court of Australia held that, among other things, plaintiffs (who establish that they suffer a recognised psychiatric illness as a result of the breach of duty of care owed to them by the defendant under s 32 of the Civil Liability Act 2002 (NSW)) are entitled to recover damages for pure mental harm under s 30 if their psychiatric injury arose "wholly or partly from" a "series of shocking experiences" in the form of "a sudden and disturbing impression on the mind and feelings" in connection with witnessing at the scene "another person ('the victim') being killed, injured or put in peril by the act or omission of the defendant". The High Court construed the phrase "being ... injured or put in peril" to include plaintiffs who suffer pure mental harm by witnessing at the scene another person being injured through the process of suffering pure mental harm in the form of psychiatric injury occasioned by the defendant's negligent act or omission. The Wicks decision raises the question whether the expanded liability of defendants for pure mental harm is economically sustainable.     

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.     

Health systems agency and state health planning and development agency reviews; certificate of need programs--PHS. Notice of proposed rulemaking

The Assistant Secretary for Health, with the approval of the Secretary of Health and Human Services, proposes to amend the regulations governing certificates of need reviews by State health planning and development agencies (State Agencies) and health systems agencies (HSAs). The proposed amendments would accomplish two tasks: (1) Implement amendments to the Public Health Service Act made by the Health Programs Extension Act of 1980 (Pub. L. 96-538) and the Omnibus Budget Reconciliation Act of 1981 (Pub. L. 97-35) and (2) reduce Federal regulatory burdens. Under the provisions of Title XV of the Public Health Service Act, the planning agencies are required to administer certificate of need programs consistent with the Secretary's regulations, under which they review and determine the need for proposed capital expenditures, institutional health services and major medical equipment. These regulations set forth proposed changes to the requirements for satisfactory certificate of need programs. Interested persons are invited to submit written comments and recommendations concerning these proposed rules as well as suggestions for alternative methods of implementing any of the provisions of the amendments that affect the requirements for certificate of need programs.     

Health systems agency and state health planning and development agency reviews; certificate of need programs--PHS

The Assistant Secretary for Health, with the approval of the Secretary of Health and Human Services, amends the regulations governing certificate of need reviews by State health planning and development agencies (State Agencies) and health systems agencies (HSAs). The amendments accomplish two tasks: (1) To implement amendments to the Public Health Service Act made by the Health Programs Extension Act of 1980 (Pub. L. 96-538) and the Omnibus Budget Reconciliation Act of 1981 (Pub. L. 97-35), and (2) to reduce Federal regulatory burdens. Under the provisions of Title XV of the Public Health Service Act, the planning agencies are required to administer certificate of need programs consistent with the Department's regulations, under which they review and determine the need for proposed capital expenditures, institutional health services and major medical equipment. These regulations change the requirements for satisfactory certificate of need programs.     

Competition policy: consequences of restrictive trade practices and price-fixing provisions for medical practitioners in Australia and New Zealand

Competition laws have only applied to many participants in the health care industry in Australia and New Zealand since the mid 1990s. Since then, the Australian Competition and Consumer Commission has considered a number of applications by medical practitioner associations and private hospitals to authorise potentially anti-competitive conduct, while the New Zealand Commerce Commission has successfully prosecuted a group of ophthalmologists. Amongst medical practitioners, however, there is still confusion and misunderstanding concerning the type of conduct caught by the Australian Trade Practices Act 1974 (Cth) and the New Zealand Commerce Act 1986 (NZ). This is of serious concern given the substantial penalties associated with price-fixing and restrictive trade practices. This article examines the provisions of these Acts most relevant to medical practitioners as well as a number of determinations and judicial decisions. To provide practical assistance to medical practitioners, the key lessons are extracted.     

Gastroenterology and urology devices; effective date of requirement for premarket approval of the implanted mechanical/hydraulic urinary continence device. Food and Drug Administration, HHS. Final rule

The Food and Drug Administration (FDA) is issuing a final rule to require the filing of a premarket approval application (PMA) or a notice of completion of a product development protocol (PDP) for the implanted mechanical/hydraulic urinary continence device, a generic type of medical device intended for the treatment of urinary incontinence. This action is being taken under the Federal Food, Drug, and Cosmetic Act (the act), as amended by the Medical Device Amendments of 1976 (the amendments), the Safe Medical Devices Act of 1990 (the SMDA), and the Food and Drug Administration Modernization Act of 1997.     

REVIEWS

The Worker and the Law. First edition. By Professor K. W. Wedderburn, M.A., LL.B. The Restrictive Practices Court. By R. B. Stevens and B. S. Yamey. Sale of Goods. By G. H. L. Fridman, B.C.L., M.A. (Oxon), LL.M. (Adelaide). Casebook on Sale of Goods. By E. R. Hardy Ivamy, LL.B., PH.D. Charlesworth's Company Law. Eighth edition. By T. E. Cain, M.A., Barrister-at Law. Essentials of Mercantile Law. By Kenneth Smith and Denis J. Keenan. International Law. By D. P. O'Connell. The Sources and Evidences of International Law. By Clive Parry. Rights in Air Space. By David Johnson. The Law and Practice of the International Court. By Shabtai Rosenne. The Constitutions of the Australian States. Second edition. By R. D. Lumb, LL.B.(Melb.), D.PHIL.(Oxon), Senior Lecturer in Law, University of Queensland. Law and Orders. By Sir Carleton Kemp Allen. Third edition. The Language of the Law. Selected and edited by Louis Blom-Cooper, assisted by Edward Jackson, with a Foreword by Lord Radcliffe. The Rent Act 1965. By Ashley Bramall, M.A., Barrister-at-Law. Matrimonial Offences with particular reference to the Magistrates' Courts. By Lionel Rosen, LL.M., PH.D.(lond.), Solicitor Second Edition. Politics and Law. By Gerhard Leibholz, Justice Associate of the Federal Constitutional Court in Karlsruhe, Professor at the University of Göttingen, Titular Professor at the College of Europe at Bruges.     

Cautious scrutiny: The Federal Climate Change Act case in the German Constitutional Court

In a unanimous decision of 24 March 2021, the German Federal Constitutional Court declared certain provisions of the Federal Climate Change Act (FCCA) unconstitutional. The Court upheld the greenhouse gas emission targets for the period until 2030 but found the outlined review procedure for the following years lacking: it failed to adequately specify targets, thereby violating the fundamental rights of the applicants. Despite the at times exuberant reception, this case note argues that the decision stopped well short of a legal revolution. Ultimately, the Court embraces an orthodox doctrine on positive obligations that emphasises deference to the legislature on climate change policy. Nonetheless, there are some genuine, albeit subtle legal innovations: (1) extending legal standing to applicants resident outside of Germany; (2) specifying general constitutional commitments to tackling climate change through the Paris Agreement, and (3) relying on a concept of intergenerational equity in the distribution of emission reduction burdens.