Teaching Law

Saturday, 11 June 2011

Live Cattle Exports and Plain Cigarette Packaging: Public/Private Tensions

There are two hot issues in the twittersphere and in the Australian press at the moment that involve a similar paradox - live export of cattle from Australia and cigarette packaging.  While the latter issue has attracted the attention of libertarians, the former takes a more directly economic focus.  Both however involve an intersection between the public and the private.

The cattle industry in Australia is of course regulated in a number of ways, including in terms of animal welfare and public health.  The live export trade is trending though because of the horror attendant on footage of inhumane treatment of live animals in Indonesian abattoirs. Public outcry has resulted in the suspension of live exports to Indonesia until the welfare of cattle can be guaranteed.

While petitions have gained widespread public support, there has been criticism of the government's decision.  The mayor of Charters Towers for example, asks just how far policing of cattle treatment will go.  Similarly, the ABC reports the loss of 'real Indigenous jobs' as a result of the suspension of exports.  Both these arguments are based on economic impacts of the decision - a decision made based on public interest grounds ie animal welfare, that affect private or market based interests. 

Cigarette packaging might seem a world away from live cattle exports, but this issue shares a similar tension.

On the one hand, the Australian government's policy on smoking is based on a public health argument.  Senator Penny Wong in a radio interview identifies that tobacco companies 'market their products and what this does is remove one of the mechanisms for marketing, which is the labelling'.  Cutting smoking will in turn improve public health outcomes and reduce the cost associated with health care for smoking-related disease.

On the other hand, there are two libertarian arguments against a plain packaging policy.  The first of these rests on the right of an individual to engage in whatever behaviours they like - such as smoking.  'Who is the government to tell me not to smoke?'  The second lies in what amounts to compulsory acquisition of the intellectual property in tobacco companies' logos and packaging. 

Part of the debate about the plain labelling is uncertainty about whether it will actually work to reduce the number of smokers.  In one sense though this is a side issue to the tension between the public and the private.  So while this is a cost-benefit (economic) argument (that would require some evidence that plain packaging would result in the cost savings assumed), it is also a values-based argument. This argument goes along the lines of how much regulation of private interests do we want and expect.  Likewise, live exports represents a values-based argument: in what circumstances do we make regulatory decisions that impact on economic interests.

Perhaps what is needed is a debate about the values upon which we make decisions to regulate.  This is not simply a big government/small government issue, but rather a prioritisation of public values.  Such a debate would forestall the need for focus groups or emergency and reactive online petitions to force government action.  It would lead as well as reflect community expectations, and map a clear pathway towards good policy and clear and consistent foundations for regulation.

Friday, 10 June 2011

The Husband, his Widow, his Sperm and the Court...

A recent decision in the New South Wales Supreme Court found that Ms Edwards, the wife of a deceased man had a possessory interest in his sperm, removed after his untimely death.  The decision is interesting to property lawyers for a number of reasons.  First, it discusses at some length the nature of the interest found to vest in the applicant wife.  Secondly, it highlights the challenges involved in identifying rights in the human body, or parts of it, in favour of third parties.

The case again affirmed the turn of the (20th) century Australian decision in Doodeward v Spence, which held that there was no property in the human body unless the so called 'work and skill' exception applied:
'...when a person has by the lawful exercise of work or skill so dealt with a human body or part of a human body in his lawful possession that it has acquired some attributes differentiating it from a mere corpse awaiting burial, he acquires a right to retain possession of it...'

Doodeward v Spence is one in a long line of cases that demonstrates the courts' reluctance to find property in the human body - dead or alive - or in parts of the human body.  In one sense, the recent NSW decision does likewise.
The court identified that Ms Edwards held a right to possess her deceased husband's sperm.  The Court referred to a High Court decision:
"Property" is a comprehensive term which is used in the law to describe many different kinds of relationship between a person and a subject-matter; the term is employed to describe a range of legal and equitable estates and interests, corporeal and incorporeal. Accordingly, to characterise something as a proprietary right (and, a fortiori, a quasi-proprietary right) is not to say that it has all the indicia of other things called proprietary rights. Nor is it to say "how far or against what sort of invasions the [right] shall be protected, because the protection given to property rights varies with the nature of the right". (Citations omitted).
This wide and inclusive definition of 'property' has been identified as problematic in relation to genetic material.  A 2003 Law Reform Commission Report, for example, recommended against regarding genetic material (which would include sperm) as property.  To do so may imply its suitability for transfer sale and management.  Possession however would be appropriate.

In the Edwards case, the Court therefore had the task of identifying what kind of right might vest in the sperm.  It found that this right whether property or not, amounted only to possession.  It seems though that even this possessory right was limited.

While it was clear that Ms Edwards would seek to use the sperm for the purposes of IVF, the Court was not in a position to award possession for this purpose.  Indeed the Court was asked 'to put aside any consideration of what she might do with it as a result of such possession' - legislation in New South Wales forbids the use of gametes for IVF where the gamete provider is deceased and there is no (written) consent.

In finding even this limited possessory right, the Court had to overcome a number of obstacles in identifying Ms Edwards herself as the party entitled to that possession.  First, was it Mr Edwards who had an interest in his own sperm?  If this were the case, then the right to the sperm would vest in his administrator (Ms Edwards) as property. The Court found that he did not - he did not have an interest in his sperm before death, so he did not have one afterwards.

Secondly, applying the 'work and skill' exception to no property in the human body, did the doctors who removed the sperm post mortem have property in the sperm?  Again, the Court found that they did not.  In this case, they undertook this work on behalf of Ms Edwards and for her benefit.

Thirdly, if Ms Edwards as administrator of the estate has a 'quasi' property right to the body of the deceased, did she have 'quasi' property in the sperm?  This right is limited to possession for the purpose of burial, not for the extraction and possession of sperm from the deceased.  Ms Edwards' role as administrator though was relevant in influencing the Court's discretion as to possession of the sperm:
"Ms Edwards is the only person in whom an entitlement to property in the deceased's sperm would lie. The deceased was her husband. The sperm was removed on her behalf and for her purposes. No-one else in the world has any interest in them. My conclusion is that, subject to what follows, it would be open to the Court to conclude that Ms Edwards is entitled to possession of the sperm." 
The Court in this case, in citing the Law Reform Commission Report, acknowledged the appropriateness of a case by case approach - an approach that will weigh up the public interest and private rights at stake in each set of circumstances.  The outcome of this decision is instructive of the challenge of the public private divide in determining which rights exist and which are at stake.

This case was resolved in terms of property interests in sperm.  While the Court accepted that the sperm would be capable of being subject to a property right, it nonetheless exercised caution in finding a possessory interest.  This represents the caution exhibited by the Courts in such cases, where they seek to avoid opening the possibility of creating property and therefore a market in human body or tissue.

On the other hand, the private interest of Ms Edwards in having a child with her late husband and the consequences for a possible child create a matrix of considerations that weigh in against the wider public interest of maintaining the dignity of human life.  In light of these complex questions, it remains to be seen as to whether dealing with human gametes in terms of proprietary (via possessory) interests is of any value or whether an alternative framework of thinking might provide a less problematic answer.