scholarly journals The Right to Repair: Patent Law and 3D Printing in Australia

2021 ◽  
Author(s):  
Matthew Rimmer
Keyword(s):  
3D Printing ◽  
Legal System ◽  
Digital Fabrication ◽  
Federal Court ◽  
Patent Law ◽  
Law Reform ◽  
High Court ◽  
Productivity Commission ◽  
The Right ◽  
High Court Of Australia

Considering recent litigation in the Australian courts, and an inquiry by the Productivity Commission, this paper calls for patent law reform in respect of the right to repair in Australia. It provides an evaluation of the decision of the Full Court of the Federal Court in Calidad Pty Ltd v Seiko Epson Corporation [2019] FCAFC 115 – as well as the High Court of Australia consideration of the matter in Calidad Pty Ltd v Seiko Epson Corporation [2020] HCA 41. It highlights the divergence between the layers of the Australian legal system on the topic of patent law – between the judicial approach of the Federal Court of Australia and the Full Court of the Federal Court of Australia, and the endorsement of the patent exhaustion doctrine by the majority of the High Court of Australia. In light of this litigation, this paper reviews the policy approach taken by the Productivity Commission in respect of patent law, the right to repair, consumer rights, and competition policy. After the considering the findings of the Productivity Commission, it is recommended that there is a need to provide for greater recognition of the right to repair under patent law. It also calls for the use of compulsory licensing, crown use, competition oversight, and consumer law protection to reinforce the right to repair under patent law. In the spirit of modernising Australia’s regime, this paper makes a number of recommendations for patent law reform – particularly in light of 3D printing, additive manufacturing, and digital fabrication. It calls upon the legal system to embody some of the ideals, which have been embedded in the Maker’s Bill of Rights, and the iFixit Repair Manifesto. The larger argument of the paper is that there needs to be a common approach to the right to repair across the various domains of intellectual property – rather than the current fragmentary treatment of the topic.

Contextualism: ‘The Modern Approach to Statutory Interpretation’

2018 ◽  
Vol 41 (4) ◽  
Author(s):  
Jeffrey Barnes
Keyword(s):  
Legal System ◽  
Court Cases ◽  
Statutory Interpretation ◽  
Modern Approach ◽  
High Court ◽  
Football Club ◽  
High Court Of Australia ◽  
Scholarly Attention

The widespread realisation that ‘[l]egislation is the cornerstone of the modern legal system’ (Justice McHugh) has brought increased judicial and scholarly attention to legislation’s partner, statutory interpretation. In CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 the High Court of Australia referred to the ‘modern approach to statutory interpretation’. That modern approach has subsequently been called ‘contextualism’. The central questions addressed in this article are: what is contextualism? Is it principled? And is it a coherent general approach? After stating and illustrating key principles from six High Court cases, the author considers challenges to contextualism, including textualism and purposivism. Like the statutes it monitors, statutory interpretation may be ‘broad and deep and variegated’, as Lord Wilberforce once observed. But, at the same time, it is concluded that statutory interpretation does not lack a general approach that lends coherence to the interpretative enterprise – for contextualism performs this function.

scholarly journals A Submission to the Productivity Commission Inquiry on the Right to Repair

2021 ◽  
Author(s):  
Matthew Rimmer
Keyword(s):  
Environmental Law ◽  
Policy Issue ◽  
Holistic Approach ◽  
Law Reform ◽  
Discussion Paper ◽  
Draft Report ◽  
Consumer Law ◽  
Productivity Commission ◽  
Development Goals ◽  
The Right

EXECUTIVE SUMMARYThe Productivity Commission is to be congratulated for producing a comprehensive discussion paper on the complex and tangled topic of the right to repair. Taking an interdisciplinary, holistic approach to the issue, the Productivity Commission shows a strong understanding that the topic of the right to repair is a multifaceted policy issue. Its draft report covers the fields of consumer law, competition policy, intellectual property, product stewardship, and environmental law. The Productivity Commission displays a great comparative awareness of developments in other jurisdictions in respect of the right to repair. The policy body is also sensitive to the international dimensions of the right to repair – particularly in light of the United Nations Sustainable Development Goals. The Productivity Commission puts forward a compelling package of recommendations, which will be useful in achieving law reform in respect of the right to repair in Australia.

State Jurisdictional Residue: What Remains to a State Court When Its Chapter III Functions are Exhausted?

2014 ◽  
Vol 42 (1) ◽  
pp. 1-22
Author(s):  
Helen Irving
Keyword(s):  
Human Rights ◽  
State Power ◽  
Federal Court ◽  
The State ◽  
Judicial Power ◽  
State Court ◽  
High Court ◽  
Federal Jurisdiction ◽  
High Court Of Australia ◽  
Court Of Appeal

Momcilovic v The Queen (2011) 245 CLR 1 provided the first opportunity for the High Court of Australia to consider the constitutional validity of a ‘declaration of inconsistent interpretation’ made under s 36 of the Charter of Human Rights and Responsibilities Act 2006 (Vic). The Court's ruling on this point attracted attention going well beyond the rest of the case. The constitutional status of the Charter's ‘declaration’ function had long been uncertain; in addition, although the case concerned a conviction under State law, the judgment of the Victorian Court of Appeal, from which Ms Momcilovic's appeal had come to the High Court, had been exercised in federal jurisdiction. This, then, raised questions about the extent to which the State Court was jurisdictionally limited, under the Kable doctrine, by its ‘identity’ as a Ch III court: whether the declaration power could be exercised by both, either, or neither, a State or federal court. Notably, French CJ found the power valid for a State court, but invalid for a federal court. In explaining his conclusion, the Chief Justice identified what this paper calls ‘State jurisdictional residue.’ In his Honour's words, ‘there is no reason in principle why the Court of Appeal, having exhausted its functions in the exercise of its federal jurisdiction … could not proceed to exercise the distinct non-judicial power conferred upon it by’ the Charter. Further questions were then raised about the extent to which a State court, albeit exercising federal jurisdiction, remains free to exercise a ‘residual’ State power relevant to the same proceedings. This paper considers such questions. It also asks what the case might be for reconsidering Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, particularly in light of the more recent judgment in Kirk v Industrial Court (NSW) (2010) 239 CLR 531.

Appealing to Whom? Australia's ‘Appellate Jurisdiction’ Over Nauru

2007 ◽  
Vol 56 (3) ◽  
pp. 641-658
Author(s):  
Gregory Dale
Keyword(s):  
Supreme Court ◽  
Asylum Seekers ◽  
The Other ◽  
Law Reform ◽  
Question Mark ◽  
High Court ◽  
Perceived Utility ◽  
The Supreme Court ◽  
Significant Case ◽  
High Court Of Australia

A peculiar and unique agreement exists between Australia and Nauru, which has ensured that, since 1976, appeals may be brought from the Supreme Court of Nauru, an independent Republic, to the High Court of Australia by virtue of a bilateral treaty1 and statutes of the respective Parliaments.2 In 1998 and 1999 two High Court judgments left a question mark hanging over the constitutional validity of this appellate scheme.3 Furthermore, in 2001, the Australian Law Reform Commission (ALRC) expressed the view that Australia should terminate the agreement as the arrangement was of no perceived ‘utility’ to Australia.4 For 29 years only two rather trivial cases were appealed from the Supreme Court to Australia's High Court.5 In 2005 a much more significant case, Ruhani, 6 was appealed from Nauru to Australia. The case was not only significant in that it concerned the validity of the so-called ‘Pacific Solution’, which involved Australia holding asylum-seekers offshore in Nauru for the processing of their refugee claims, but it also raised doubts about the desirability of the offshore municipal model of foreign appeals. This article examines the latter of those issues, intending to demonstrate that the model of foreign appeal adopted in the Nauru Treaty is a compromised version of appeal in comparison with the other two more common models.

scholarly journals Bioprinting and culture of tissues and organs in the BRICS countries (on the example of Brazil, India, China, and South Africa): approaches of legislation on intellectual property

2020 ◽  
pp. 35-57 ◽  
Author(s):  
Ksenia Michailovna Belikova
Keyword(s):  
Intellectual Property ◽  
3D Printing ◽  
Legal Regulation ◽  
Copyright Law ◽  
Comprehensive Analysis ◽  
Patent Law ◽  
Property Law ◽  
Medical Technologies ◽  
Brics Countries ◽  
The Right

This article examines the legal regulation of bioprinting (3D printing) and culture of tissues and organs in the BRICS countries through the prism of protection of intellectual property. The work demonstrates the means of protection of results acquired at each stage of bioprinting by the norms of copyright and patent law, as well as touches on the questions of the need (possibility) for patenting of “bioprinters”, “bioinks”, “biopapers”, etc. The goal of this research is to determine the necessary and possible boundaries for patenting (copyright law protection) of the means, products, processes and their moral-ethical acceptance in the society. The novelty of this work consists in a comprehensive analysis of the approaches of BRICS countries towards development, legal formalization and protection of bioprinting and culture of tissues and organs as medical and non-medical technologies from the perspective of intellectual property law. The author attempts to answer the question of (non)patentability of the process (means) and result (product) of bioprinting of tissues and organs, the “bioprinters” themselves, as well as the “bioinks” and “biopapers” they use. With regards to (non)patentability of tissues and organs acquired through 3D printing, a conclusion is made that there is an unfavorable environment for their patenting, though their production, in the author’s opinion, should the right to patenting providing that they meet the criteria (other conditions) set by patenting law of a particular country.

scholarly journals Re-partnering as a Contingency Deduction in Claims for Loss of Support Comparing South African and Australian Law

2017 ◽  
Vol 10 (3) ◽  
pp. 121
Author(s):  
L Steynberg
Keyword(s):  
South African ◽  
Case Law ◽  
Traditional Concept ◽  
High Court ◽  
Future Events ◽  
Australian Case ◽  
Uncertain Future ◽  
Northern Territories ◽  
The Right ◽  
High Court Of Australia

In a claim for loss of support by the spouse of the deceased breadwinner, the claim will be influenced by the probable remarriage of the surviving spouse. In light of the recent extension of the traditional concept of family and ‘husband and wife’, the wider term ‘re-partnering’ is suggested, instead of remarriage. If the widow has already entered into a new relationship during the course of the trial, it is taken into account as a proven fact and not as a contingency, according to the theory on compensating advantages. The right to a claim for loss of support is not automatically lost due to the re-partnering. The income and life expectancy of the new partner will be taken into account in calculating the extent of the claim. In three Australian jurisdictions, the Northern Territories, Victoria and Queensland, the legislature has promulgated legislation forbidding the use of remarriage as a contingency deduction in a claim for loss of support, irrespective of whether the re-partnering is a reality or just a probability. In general it can be stated that South African courts tend to over-emphasize the influence of probable re-partnering by a widow. In contrast to this, the manner in which re-partnering as a contingency is handled in Australian case law can be recommended as realistic and appropriate. In the recent decision in De Sales v 1Ingrilli, the High Court of Australia held that in cases where remarriage has not yet occurred, it should only be taken into consideration as part of the ‘standard’ adjustment (general contingency adjustment) for uncertain future events, and could no longer be applied as a specific contingency, which tends to be higher than the mentioned general contingency adjustment. The court determined that the general contingency adjustment, which incorporated the remarriage of the widow, should only be five percent. 

scholarly journals AFRICAN CHILDREN AND SEXUALITY: A PERSPECTIVE ON TRADITIONAL AND CONTEMPORARY APPROACHES

Obiter ◽  
2015 ◽  
Vol 36 (1) ◽  
Author(s):  
Gugulethu Nkosi
Keyword(s):  
Legal System ◽  
Customary Law ◽  
Constitutional Court ◽  
Sexual Offences ◽  
Distinct Component ◽  
High Court ◽  
Sexual Activities ◽  
The North ◽  
Legal Position ◽  
The Right

For many years in South Africa, sexual acts with, and between children under the age of sixteen, were regarded as a sexual offence, even if consensual. A twist to this legal position was brought about by the case of Teddy Bear Clinic for abused Children v Minister of Justice and Constitutional Development (2013 (12) BCLR 1429 (CC)), where the Constitutional Court decriminalized consensual sexual activity between children of certain age-ranges, starting from the age of twelve. Prior to serving before the Constitutional Court, this case was heard by the North Gauteng High Court. The application brought before the High Court challenged the constitutional validity of sections 15 and 16 of the Sexual Offences and Related Matters Act (32 of 2007) in as far as the said provisions criminalize a range of consensual sexual activities between children of a certain age. Sections 15 and 16 respectively criminalize acts of consensual sexual penetration and sexual violation between children.The court’s decision of decriminalizing consensual sexual acts of children of certain ages has created a space for a discourse on children and their decision-making on sexual matters. The court’s decision further paved way for a reflective discussion of traditional and contemporary approaches used in conscientizing children about their sexuality. As discussed below, the said approaches immensely influence the decisions that children make in sexual matters that affect them.It is asserted in this article that, while legal developments in the contemporary society emphasize the individualistic nature of a child when dealing with matters of his sexuality, it is argued that this approach cannot be the sole basis in dealing with sexuality of children. This is because the Constitution which serves as a bedrock of our legal system recognizes customary law as a distinct component of the South African legal system. It further recognizes the multi-cultural nature of the society within which children are raised. It provides that everyone has the right to participate in the cultural life of their choice, guided by the dictates of the Bill of Rights. This article seeks to explore the extent to which the Constitution, in as far as it recognizes the pluralist nature of our society, is assimilated in legislation and case law when dealing with the sexuality of children.

Sex, Slavery and the High Court of Australia: The Contribution of R v. Tang to International Jurisprudence

2010 ◽  
Vol 10 (3) ◽  
pp. 403-423 ◽  
Author(s):  
Stephen Tully
Keyword(s):  
Human Rights ◽  
International Law ◽  
Significant Contribution ◽  
High Court ◽  
Sex Slavery ◽  
Definition Of ◽  
The Right ◽  
High Court Of Australia ◽  
Conceptual Integrity

AbstractThe judgment of the High Court of Australia in R v. Tang is a significant contribution to jurisprudence on the definition of slavery under international law. This case considered whether the intention of the perpetrator was a necessary element for the prosecution of that offence under Australian law. The High Court also preserved the conceptual integrity of slavery, evaluated the decisions in Kunarac and Siliadin, identified the powers attaching to the right of ownership as that expression appears in the 1926 and 1956 Slavery Conventions and employed a human rights orientation to contemporary manifestations of slavery. Although considerable practical challenges remain for enforcing the prohibition against slavery in Australia, R v. Tang marks a significant precedent likely to influence future international jurisprudence on the topic.

Whitlam as Law Reformer

1979 ◽  
Vol 10 (1) ◽  
pp. 53-79
Author(s):  
M. D. Kirby
Keyword(s):  
Federal Court ◽  
Administrative Law ◽  
Family Court ◽  
Law Reform ◽  
Privy Council ◽  
Business Law ◽  
High Court ◽  
Corporation Law ◽  
Major Reform ◽  
Legislative Reforms

In this article Mr Justice Kirby outlines a number of important legal themes in the career of the former Prime Minister. Several issues were identified by him soon after Mr Whitlam entered Parliament and persisted with in Opposition and Government. Some of them led to important legislative reforms. The abolition of appeals to the Privy Council was achieved in part. The establishment of a new Federal Court, long predicted, has now been achieved. Major reform of family law and the establishment of a special Family Court was pioneered with the support of Mr Whitlam. The expansion of Commonwealth interests in commercial and business law coincided with facultative decisions of the High Court. The achievement of a single corporation law and of national compensation eluded the Whitlam Government but may yet be secured. The identification of the need for a new administrative law is instanced as the most original of Mr Whitlam's law reform preoccupations. The new body of Commonwealth administrative law was initiated during his Administration. This paper is a history not an evaluation. But it identifies a number of themes important for continuing law reform in Australia and illustrates Mr Whitlam's persistence, and in some cases successful action, towards achieving reform of the law.

The use of Foreign Law by the High Court of Australia

2018 ◽  
Vol 46 (2) ◽  
pp. 161-191 ◽  
Author(s):  
Sarah Spottiswood
Keyword(s):  
Legal System ◽  
Common Factors ◽  
Appellate Courts ◽  
International Consensus ◽  
High Court ◽  
Judicial Decisions ◽  
Normative Question ◽  
Foreign Law ◽  
High Court Of Australia ◽  
The Normative Question

Justices of the High Court of Australia have a broad discretion to follow foreign judicial decisions based on whether they consider a decision to be persuasive. But it is difficult to assess what it is about a foreign decision that makes it likely to be followed by the High Court. This has created uncertainty that is problematic for both litigants and the court. To help address the uncertainty associated with the High Court's use of foreign decisions, this article identifies common factors that explain when the High Court is likely to follow foreign decisions. By drawing on theories of persuasive authority and closely analysing decisions from 2015 and 2016, I argue that the High Court is more likely to follow foreign decisions that: (1) are about legislation or instruments with similar words to those in dispute; (2) emanate from certain jurisdictions; (3) are from apex or appellate courts; (4) are raised by litigants; and (5) reflect values common to the Australian legal system. Conversely, the area of law, international consensus and the date of foreign decisions are unlikely to influence the High Court's willingness to follow foreign decisions. These factors can help litigants use foreign decisions effectively and may be used by legal scholars to scrutinise the legitimacy of the High Court's use of foreign decisions and to address the normative question of how the High Court should use foreign law.

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