Editors --- "Comment" [2004] ALRCRefJl 1; (2004) 84 Australian Law Reform Commission Reform Journal 2

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Reform Issue 84 Autumn 2004

This article appeared on pages 2 – 3 of the original journal.

Comment

By Professor David Weisbrot, President, ALRC

‘Globalisation’ is obviously one of the buzzwords for the modern (or should that be ‘post-modern’?) age. Much of the discussion focuses on the social and political implications of the revolution in communications technology, which now truly makes the world a ‘global village’, to use Canadian visionary Marshall McLuhan’s famous phrase.

Most of the unease and agitation around the concept of globalisation has focused on the (supposed) economic effects of free trade, global markets for services, intellectual property and so on. This has brought together coalitions of dissenters comprised both of those concerned about the negative impact of globalisation on the Third World (or ‘the two-thirds world’, to use a new and more accurate term), as well as those in western countries who are concerned about the relocation of industrial and service jobs to the less developed countries.

Little, however, has been written about the effects of globalisation on the development of jurisprudence or on law reform activities. This is somewhat surprising, since most law reformers are natural internationalists and comparativists—our first instinct when faced with a problem is to look at how everyone else is coping with the same or similar issues, and then to adapt what seems to be best practice to our own circumstances. (Of course, ‘negative lessons’ are often very important as well, and we learn a great deal from systems that have not dealt well, or at all, with a challenge.)

Until fairly recently, Australian jurisprudence was relatively monocultural in outlook, with appellate judgments referring almost exclusively to preceding Australian and English cases. It is now far more common to see discussion of the judgments of overseas courts (Canadian, New Zealand, American and others), as well as international instruments and decisions. Perhaps it is not surprising that one of the leaders in this area on our own High Court, Justice Michael Kirby, is also the person with the strongest law reform background.

Ironically—despite the fact that globalisation is often associated with the projection of American culture to the rest of the world through television, Hollywood and the US dominance of the Internet—US jurisprudence remains one of the last bastions of provincialism. It is still rare for the judgment of a senior US court to cite cases from other courts. It is especially disappointing that American law journals are not much better in this respect, rarely canvassing the relevant legal materials, experiences, approaches or perspectives of other legal systems, except where an article may be pigeon-holed as a ‘comparative law’ piece (which perhaps may be roughly equated with the difference between an intellectual curiosity about multiculturalism and pluralism on the one hand, and a tolerance of ethnic folk dancing on the other).

A stark reminder of this preference was included in the dissenting opinion of US Supreme Court Justice Antonin Scalia, in the June 2003 case of Lawrence v Texas. Chiding the majority for voting to overturn a Texas law banning consensual homosexual conduct (on the basis that it infringed constitutional rights to privacy and equal protection), Justice Scalia wrote that it was wrong of his colleagues to look at the pattern of decisions and practices overseas for evidence of “values we share with a wider civilization”. Justice Scalia noted that such “foreign views” were “meaningless dicta”, but nonetheless “dangerous dicta”, since—as his colleague Justice Clarence Thomas had written in a different matter Foster v Florida 537 US 990 (2002)—the US Supreme Court “should not impose foreign moods, fads, or fashions on Americans”.

Justice Scalia is closely associated with the ‘strict constructionist’ and ‘original intent’ schools of constitutional interpretation in the US. However, no one would ever criticise the polymath American ‘founding fathers’ for failing to be influenced by the emerging intellectual trends of their time (domestic, classic, English or French), or for lacking curiosity about the world around them.

My own experience with recent ALRC inquiries confirms the importance of taking a healthy interest in comparative law and practice.

For example, the terms of reference for the current inquiry into the intellectual property aspects of genetic materials and technologies (gene patenting and human health) specifically direct the ALRC to take account of international practice in this area, as well as Australia’s international obligations—especially under the agreement governing Trade-Related Aspects of Intellectual Property Rights (TRIPS). In attempting to balance the competing interests in encouraging innovation and investment while preserving room for future research and ensuring the continued cost-effective delivery of healthcare services, the ALRC has looked closely at the position in the US, Canada and members of the European Community. The recent conclusion of a Free Trade Agreement between Australia and the United States (yet to be ratified), which has a strong focus on intellectual property issues, also heightens the need to be aware of international best practice.

Similarly, in considering the novel issues involved in the protection of human genetic information, the ALRC (and our partners, the Australian Health Ethics Committee) looked at how these matters were being approached in a wide range of countries, meeting or communicating regularly with experts and stakeholders in Canada, New Zealand, the UK, the US, Japan, South Korea, China, Holland, France, Italy, Denmark, Sweden, Iceland and elsewhere, as well as with international organisations, such as UNESCO, the World Health Organisation, the Human Genome Organisation, the OECD, and the European Commission.

It was very gratifying to find that the interest and influence flows in both directions. At the OECD experts meeting on human genetic research databases in Tokyo in February 2004, there was strong praise for the ALRC-AHEC report Essentially Yours: The Protection of Human Genetic Information in Australia (ALRC 96, 2003) for serving as ‘the bible’ in this area. Although the specific issues and structures and sensibilities necessarily will vary from country to country—for example, depending upon the organisation of health care services, the regime for privacy protection, the role and regulation of the life insurance industry—Essentially Yours was repeatedly referred to as ‘setting the agenda’ for all considerations of these important and complex issues.

Significant steps have been taken recently to establish a Commonwealth Association of Law Reform Agencies (CALRAs), which is aimed at facilitating the increased exchange of ideas, information, staff and expertise among the various law reform bodies. (More about this in future issues of Reform.)

Perhaps it is drawing too long a bow to comment that the less outwardly-focused US does not share the Commonwealth’s tradition of utilising independent law reform commissions?