Heritable Human Genome Editing (HHGE) represents a revolutionary yet contentious technological advancement with profound legal and ethical implications. This article examines the legal challenges of HHGE in Australia, focusing on civil liability, intergenerational claims, and the evidentiary burden in genomic litigation. It explores whether a duty of care extends to gene-edited individuals and their descendants, the difficulties in proving causation for genetic modifications, and the compensability of unintended genomic harms. Additionally, this article considers the complexities of litigating claims related to both therapeutic and non-therapeutic genetic modifications, including enhancements beyond typical human capabilities. Given the unpredictable nature of HHGE and the interplay of genetic and environmental factors, existing legal frameworks face significant challenges in addressing liability and damages. This article argues that HHGE exposes critical gaps in traditional negligence principles, particularly in assigning fault, proving causation, and quantifying genetic harm.
Coroners have important statutory roles in morbidity and mortality prevention by investigating reportable deaths, identifying lessons, and making public health recommendations. Yet little is known about how well the preventive function is performed by coroners. Further, the preventive potential of coroners in New South Wales, Australia, has never been empirically analysed. In this study, we explore the performance of New South Wales coroners in contributing to prevention in the period 2010-2024 (2020-2022 COVID years excluded). Measured in terms of inquests conducted and preventive recommendations made, we found that the preventive potential of the New South Wales coronial system declined over that decade. This presents a serious challenge to the current administration of the coronial system by the New South Wales Government and the New South Wales Local Court which has day-to-day carriage of the coronial system. Nevertheless, enhancing the preventive capacity of the New South Wales coronial system could contribute significantly to reducing the annual burden of avoidable deaths and the associated costs (approximately AU$15 billion).
Since it was first hypothesised, the "shaken baby syndrome" (SBS) has been dogged by controversy and is thus problematic for the criminal justice system. We argue that where the diagnosis of SBS relies solely on the "triad" of retinal haemorrhages, subdural haemorrhage and encephalopathy great care needs to be taken by prosecutors, courts and family welfare agencies in how that diagnosis is used. We suggest that one way forward to resolve this controversy will be via a thorough independent national or international medical-scientific-legal review to advise on the clinical and legal inferences that can be safely drawn from the presence of features of the "triad" alone. We also argue that ethical issues surrounding the embedding of forensic paediatric physicians within the clinical services provided by Australia's children's hospitals need to be addressed.
This article argues, first, that the right to privacy at s 13(a) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) includes a right to die with autonomy and dignity (Qualified Right). An aspect of the Qualified Right is the right to assisted dying in exceptional circumstances. When the Qualified Right is agitated, the State is under a positive duty to assist someone die. A crucial pillar of this argument is that, by the Voluntary Assisted Dying Act 2017 (Vic) (VADA), Victoria has taken the normative position that assisted dying in exceptional circumstances should be permissible. Second, that the Qualified Right is able to reconcile the various end-of-life positions. Third, that VADA is so tightly strung that it is inconsistent with the Qualified Right to a limited extent.
The Australian Law Reform Commission is currently undertaking a review of Australia's tissue laws. Legitimacy is a relatively understudied concept in the context of law reform. Consideration of how a reform to the law can generate support and acceptance despite disagreement is a crucial determinant of its potential success. This article explores the concept of legitimacy, and the way in which can be generated, using the case study of organ donation-a context that is marked by ethical pluralism and high stakes. It ultimately proposes a framework for assessing the legitimacy of a proposed law reform and considers how it might apply to a potential economic incentive for organ donation.
This article explores the ethical principles and analyses the Australian regulatory framework governing Human Germline Gene Editing (HGGE) and assisted reproductive technologies (ART) in the context of creating designer babies with a focus on CRISPR-Cas9 technology for HGGE and Pre-implantation Genetic Testing and In-Vitro Fertilisation. It explores the potential of including CRISPR-Cas9 as ART, balancing the risks of excessive genetic enhancement against the benefits of eliminating genetic disorders for future generations. It also examines the eugenic implications of designer babies, issues around equitable access and societal inequalities. To create clear and tailored frameworks that effectively regulate the creation of designer babies, crucial factors for policy-makers and legislators to consider are informed consent, public participation and perception, upholding bodily autonomy and the child's best interests. This article advocates for reform in Australia's regulatory framework to govern HGGE research more effectively and ethically while preparing for potential clinical applications.
Poor legal knowledge and fear of liability may lead health professions to act irrationally and in ways that breach standards of competent professional practice. Such behaviour increases, rather than decreases the risk that health professionals will be held legally "liable" for their behaviours. In this column we report on a survey of nurses across multiple sites to gauge their responses to two clinical scenarios in which patients were found to have died. The majority of those nurses reported that they would commence resuscitation even though they knew the patient was dead. We examine the reasons given by those nurses as to why they would act in such a way and argue that it illustrates the problem of harms generated by legal systems when they are poorly understood.
The law has long struggled with the question of compensating those who have suffered a psychiatric injury as a result of the negligence of another. Eventually, the viability of such claims was recognised, with strict limits. While most of the case law has concerned so-called "primary victims", those directly involved in a traumatic incident or within the near vicinity, some cases have involved "secondary victims". Some of these cases have involved family members claiming to have suffered a psychiatric injury as a result of seeing their loved one in a distressing condition, as a result of medical negligence. The law continues to be reluctant to recognise that a medical professional owes a duty of care to prevent psychiatric injury to the loved ones of the patient receiving treatment, as evidenced by a recent decision of the United Kingdom Supreme Court. This article questions such reticence and considers how the Australian High Court might deal with similar questions.
Australian children are heavily targeted by advertising encouraging them to consume unhealthy food items, with current policies failing to curtail this trend. This article evaluates the potential effectiveness of the Healthy Kids Advertising Bill 2024 (Cth), tabled by Australia's Dr Sophie Scamps MP, in statutorily regulating unhealthy food marketing to children. This article critically evaluates the Bill, and compares the Bill to existing overseas legislation, using leading statutes in Chile, Mexico and Portugal as focal points. While comprehensive and evidence-based, this research argues that the Bill overlooks crucial marketing channels and techniques which are helping sustain high levels of unhealthy food marketing to, and consumption among, children. This article also highlights concerns about how the Bill may be enforced in the online setting. Australian policy-makers are encouraged to try to ensure that all varieties of unhealthy food marketing which appeal to children are addressed.
The World Intellectual Property Organisation's Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge (WIPO Treaty) imposes a disclosure (transparency) requirement on the patent application processes for patents involving genetic resources and associated traditional knowledge. This is to enhance the efficacy, transparency and quality of the patent system and prevent patents from being erroneously granted where they are neither novel nor inventive. This comment argues the WIPO Treaty is the first step to future discussions and negotiations about the apparent contest between the World Trade Organisation's Agreement on Trade Related Aspects of Intellectual Property and the United Nations Environment Program's Convention on Biodiversity and related agreements, and the issues about consent, access to technology, profit-sharing, and so on. The comment concludes that this is, at heart, a contest of ideals between proprietarianism and instrumentalism with consequences for accessing and using biological materials for foods, feeds, fibres, materials and medicines that will need to be carefully considered.
This article examines the regulatory tensions and co-operative shifts emerging from the use of cross-border artificial intelligence diagnostic tools. Through doctrinal analysis of international human rights law, soft law instruments, and recent extra-territorial legislation, it argues that contestation has become a driver of regulatory innovation. With a focus on Australia's evolving response, it proposes a three-pillar model to align domestic safety, extra-territorial due diligence, and Indigenous data sovereignty. These pillars offer a path to transform legal obligations into enforceable, rights-based oversight frameworks.
From the 1950s in Australia forced adoptions were commonplace and led to severe consequences for the adoptive mothers and many adopted children. Since 2012 Australian State and Federal Governments have issued formal apologies and only the State of Victoria has an established redress scheme which includes modest financial compensation packages. A particular issue is the constraint imposed by statutes of limitations on actions relating to events which occurred many decades previously. The defendants may no longer be entities capable of being sued, the witnesses and clinical records may no longer be available, and there may be statutory ceilings on compensation for mental harm. This article argues that the statute of limitations should be lifted to deliver adequate justice to Forced Adoption claimants as for historic claims of child sexual abuse. Redress schemes should also be introduced and made uniform throughout Australia.
Clause 3 is the heart of the Health and Disability Commissioner (Code of Health and Disability Services Consumers' Rights) Regulations 1996 in Aotearoa New Zealand. Clause 3 allows the health or disability provider to show they acted reasonably in the circumstances to give effect to the consumer's rights. This is increasingly important as the health and disability sector in Aotearoa New Zealand experiences increasing pressure and resource constraints after COVID-19. However, cl 3 has only been mentioned in 2.64% of published Commissioner decisions from 1998 to 2023. Moreover, no Commissioner has mentioned cl 3 since 2009. This article proposes that cl 3 should be applied in every Commissioner decision, like s 5 from the New Zealand Bill of Rights Act 1990 in Hansen v The Queen. Otherwise, a Code of Rights without limits will continually be in breach.
This article analyses Australian case law exercising the parens patriae jurisdiction. Specifically, this article considers the application of the best interests test, focusing on those cases involving non-Gillick competent children. Despite judicial hesitancy to identify relevant factors comprising the best interests expressly test, this article examines the case law to identify the key factors said to be weighed when determining best interests. Analysis of the cases reveals significant reliance on expert medical evidence in such cases. The article then considers the case law from the perspective of the four key theories of health law and posits that the current best interests test predominantly aligns with the health law principle of beneficence, which often results in the demotion of autonomy. This stands in contrast to a global paradigm shift towards greater recognition of individual autonomy. The article briefly considers alternative approaches, advocating for increased weight to be given to autonomy when determining best interests within the parens patriae jurisdiction to better reflect contemporary ethical perspectives.
This editorial reviews the important decision by the European Court of Human Rights in Pindo Mulla v Spain (17 September 2024) (Pindo Mulla). It identifies the reasoning process of the Grand Chamber in adopting an analysis consistent with the 1990 decision of the Ontario Court of Appeal in Malette v Shulman (1990) 67 DLR (4th) 321 that, when an adult is competent, they are entitled to make autonomous decisions, including by an advance care directive, about matters such as administration of blood products, even though their decision will foreseeably have highly adverse consequences for their health and even for their survival. The emphasis placed by the Grand Chamber on the entitlement to autonomous decision-making by adult patients as entitlement to the right to respect for private life, viewed in light of the right to freedom of religions is likely to have significant ramifications in reducing the potential for paternalist decision-making in a variety of cases where patients indicate that they reject certain forms of treatment. The editorial reviews practical clinical and administrative challenges raised by the Pindo Mulla case and recommendations made by a 2025 New South Wales coronial decision directed toward addressing some of the issues.
Students of medicine and law rarely interact during their tertiary education. They hold stereotypical views which may impede their collaboration in the workplace. The aim of our study was to explore the impact of law and medicine students learning together in a simulated interprofessional learning (IPL) activity. Students enrolled in the final year of a Medicine program, and in a Bachelor of Laws program participated in an interprofessional simulation case workshop and guided reflection. Data comprised the written reflections of consenting students and were analysed using an inductive thematic analysis approach. Three main themes were identified: New perspectives; Our goals are very similar; and IPL prepares us for the workplace. Contact with the other profession is effective in challenging perceptions and attitudes, developing a more positive view on how they may collaborate in a health care context. IPL between medicine and law can assist both groups in developing their readiness to commence work.
This research investigates the nursing management of intoxicated individuals treated under involuntary legislation in the emergency departments (EDs) of metropolitan hospitals in Queensland, Australia. A qualitative research approach was employed, using focused ethnography to conduct interviews with nurses working in these settings. The goal was to gain insight into their experiences with involuntary legislation when caring for patients intoxicated by alcohol. The study examined how ED nurses manage individuals during the intoxication phase, a time when impaired decision-making can lead to risks of self-harm or harm through misadventure. It also explored the legislative options available to nurses and how they implement them for involuntary assessment, treatment, and care. The aim of this research was to offer insight into nurses' perspectives on the current management of intoxication in EDs in Queensland, fostering discussion on what constitutes effective legal decision-making, and encouraging further research and development in this area.
