Peering over the horizon: the legal landscape

Though few of us resist, attempting to peer over the horizon is an undertaking fraught with difficulty. Yet if we succeed, we might not like what we see. It does not take much foresight to identify many formidable global problems that if not addressed effectively in the near future could well produce very serious consequences for mankind.

Since Australia is a part of the international community, the tyranny of distance, which has been such a comfort in the past, will not save us from these consequences. Indeed, the impact on Australia, in some cases, may be greater than on other parts of the world.

It will come as no surprise that the melancholy list includes:

• the proliferation of nuclear weapons, not least in or near our own region;
• the threats posed by international terrorism, aided and abetted by inept responses and intensified by the awful prospect of weapons of mass destruction falling into the hands of terrorists. (While the potential threat from global terrorism is no doubt great, the fact is that the numbers of people killed or injured to date by “terrorist” acts is very small compared with the dire consequences of famine, wars and preventable diseases in Third World countries.)
• global population growth, more specifically the impact on the environment of many more people in developing countries aspiring to and attaining First World lifestyles. Residents of First World countries can hardly complain when residents of developing countries seek the same creature comforts as they have enjoyed for decades. But the effect is to intensify greatly the demand for finite resources and to generate vastly increased levels of waste;
• the degradation of the global environment, including ocean fisheries, forests and water and soil resources brought about by over-exploitation, land clearing and pollution;
• the effect of climate change, a phenomenon which will have a differential impact on various parts of the world, but which can be expected to have severe consequences for Australia’s fragile environment;
• the possibility of pandemics and the spread of diseases which are difficult to treat or control. A recent example is the disastrous spread of HIV-AIDS throughout the world, but particularly in some developing countries, where as a result life expectancy has deteriorated to shocking levels; and
• population ageing, especially in developed countries.

For those who prefer a dose of optimism, some foreseeable developments offer the hope of improving or enriching human life - while at the same time presenting complex regulatory challenges for governments. Some examples include: a better understanding of the molecular and genetic bases of life, opening the way to the use of diagnostic tests to assess the risk of disease and to determine appropriate treatment; the development of new pharmaceuticals and gene and cell therapies to repair damage: and the tailoring of medication to the individual genetic make-up of patients.

The new biotechnology offers the chance of deferring once again the Malthusian doomsday prediction that population growth will outstrip the rate of increase in food production. While the introduction of genetically modified (“GM”) crops arouses grave concerns about unintended environmental consequences, some see great benefits and view the opposition to GM technology as an example of misplaced “eco-fundamentalism”.

The embrace of free market ideology by certain developing countries, within a framework of diminishing barriers to international trade, has contributed to the liberation of tens of millions of people from the crushing degradation and hopelessness of grinding poverty.

The two most populous countries on Earth, China and India, have seen in recent years some of the most profound and rapid improvements in living standards in human history. It is true that benefits have been unevenly distributed and have come at a high environmental cost. And, as the experience in China suggests, higher living standards do not necessarily translate into greater political freedom or respect for human rights. But the experience in those two countries and elsewhere in Asia offers long-term hope, even for the despairing people of so much of Africa.

The extraordinary advances in communications technology have not only expanded the sources and retrievability of information and ideas, but have made the information and ideas instantaneously accessible to vast numbers of people throughout the world. The Internet and such innovations as satellite technology have made it even more difficult to suppress the free exchange of ideas and therefore, over time, more difficult to halt the movement towards democratic ideals and respect for human rights.

The emergence of trans-national criminal tribunals, the authority of which is backed by the international community, renders some of those responsible for gross abuses of human rights accountable for their actions. Progress on this front is slow and to some extent selective (the winners have always written and rewritten history), but the developments build on the precedent set by the International Military Tribunal which tried Nazi war criminals at Nuremburg.

Issues for the future in Australia

What do these developments mean for Australian domestic law in the foreseeable future? Some matters have already been identified as significant by governments, policy makers or the courts.

One is the contest between the proponents of the ever-expanding boundaries of intellectual property rights and those who emphasise the benefits to be derived from the free dissemination and utilisation of scientific and medical advances or, for that matter, the products of the human imagination.