MOMENTS IN HISTORY

 

          February 28, 2003 is the fiftieth anniversary of the discovery on February 28, 1953 at Cambridge, England, by James Watson and Francis Crick of DNA - the basic building block that carries our genetic code.  This fantastic insight was a development of the greatest import for medicine - but also for our understanding of consciousness and the mystery of life and for our evolving view of human ethics and law.

 

          In science and technology, as in the law, it is only by looking back that we can understand the future.  Oliver Wendell Holmes once observed "the history of what the law has been is necessary to the knowledge of what the law is"[1].  And what it will be emerges from what it is, affected by fast-moving social changes. 

 

          In retrospect, the twentieth century will be seen by history as a time of terrible wars and genocide.  But also (in part as a consequence) a time of extraordinary technological advances.

 

          The three major technological changes of the twentieth century were:  the developments in the understanding of the atom and of nuclear physics; the advances in knowledge of biology leading to the contemporary science of genomics; and the wizardry of information technology leading us into cyberspace.

 

          Obviously, as one would expect, these three technological advances are inter-related.  Star Wars and the so-called "space shield" would not be possible in concept without the potentiality of informatics to deliver nuclear warheads against incoming missiles.  Those missiles are directed by computer technology.  The genome could  not be analysed without the computer.  The human mind, unaided, would have worked for decades to do what high powered computers can do within days or hours.  So it is essential to see the unity of technological change.  It is unsurprising to acknowledge the impact of such change on the world and on the professions of law and medicine.  The changes are profound.  My purpose is to sketch no more than a few of them.

 

          I have no competence to speak of nuclear physics.  In all truth, unless the law is brought to bear upon the consequences of that discovery, we can probably forget about the professional and legal implications of informatics and genomics.  The international treaties aiming to prevent the proliferation of the deployment of nuclear weapons have so far kept a fragile peace.  Whether this will be maintained into the future, remains to be seen.  The contemporary conflicts about weapons of mass destruction and fears about international terrorism present large challenges for international law that are beyond the scope of this essay.  I have had no connection with those questions and their legal demands.  But I have had some involvement in the developments of national and international law that have occurred to respond to informatics and genomics.  Although the technologies are linked, it is convenient to deal with each separately.

 

INFORMATICS

 

          OECD committees:  My involvement with some of the policy issues presented by the advances of information technology began in 1978.  I was then the Chairman of the Australian Law Reform Commission.  That Commission had been asked to prepare an Australian law on privacy.  Coinciding with that task were early developments in Europe designed to respond to the advance of the computer and the growing number of personal records that were being kept in electronic form.  Whereas in earlier times the issues of privacy revolved around the physical person, the family and home of the individual, it became clear that, in the future, the privacy of the individual would be affected by computerised personal records. 

 

          First the Nordic Council and then the Council of Europe worked towards the development of basic principles which could guide national legislation to respond to this new problem.  It was at this time that the European members of the Organisation for Economic Cooperation and Development in Paris (OECD) placed the issue of privacy on the agenda of that intercontinental body.  Australia was a member of the OECD, as were the democracies of North America, Europe, Japan and New Zealand.  The OECD thus became the venue from which to spread the principles that had been developed within Europe for the protection of the privacy of personal information.

 

          I was elected chairman of the two expert groups of the OECD.  One dealt specifically with the issue of privacy in the context of transborder flows of personal data.  The other dealt with the problems of security of automated data. 

 

          The fundamental problem was that the new technology made accessibility to personal data much easier than had been possible with paper files.  Information could be readily accessed, days, months or years after it had been provided.  Profiles could be assembled which might not give an entire and accurate picture.  Increasing numbers of decisions were being made about individuals without those individuals being aware of the existence, or contents, of such files.  This was the setting in which the OECD committee on privacy was instructed to prepare its principles. 

 

          The principles were agreed to by 1980.  They formed the basis of the Australian Law Reform Commission's report on privacy.  They were highly influential in the formulation of the privacy principles contained in the Privacy Act 1988 (Cth) and in the laws of many other countries.  This was a practical illustration of the way in which a concerted effort by experts at an international level could respond to a highly complex and novel technological challenge and assist legislatures to provide timely and relevant laws.

 

          My involvement in the OECD groups taught me that there was a way to cope with technological miracles.  It would not be done by talk about how difficult the problem is.  It would be done by acknowledging the common social problems which technology presents and by pooling efforts to come up with solutions that will stimulate and assist legislative change.

 

          Impact on law:  Information technology is profoundly affecting the way law is practised, indeed what lawyers are engaged to do.  The impact comes not only from the changes which new information technology bring to the substance of the law as it is practised.  Change is also occurring in the way that practice takes place.  It is happening at the level of the courts.  It is occurring in private practice.

 

          After centuries of imprisonment in paper, courts in many countries are quite quickly adjusting to the electronic revolution.  Decisions of judges are now published in electronic form and available to be downloaded from the Internet within minutes of their delivery.  Transcripts of argument are posted within a short time of the completion of a day's hearing.  Arrangements are being made to permit legal process to be filed electronically in court registries.  For decades it has been possible, in urgent circumstances, for injunctions to be sought by telephone where there is no time to file written documents.  Now, in emergencies, electronic applications can be made. 

 

          In the High Court of Australia, many special leave hearings are undertaken by videolink.  The Justices sit in the High Court building in Canberra in front of a high resolution television console.  The parties and their advocates appear in a courtroom in Perth, Darwin, Brisbane, Adelaide or Hobart.  The whole process is highly efficient.  It represents a way of bringing the justice of the law, at lesser cost, to the four corners of a continental country.  Australia copied this technique from Canada.  Recently I told the President of the European Court of Human Rights about it.  The jurisdiction of his court stretches from Ireland in the West to Pacific Russia in the East.

 

          Obviously we are not at the end, but merely at the beginning, of these developments of information technology.  Automated voice recognition will speed the provision of transcripts of evidence, argument and decisions, at lower cost.  Automated translation into foreign languages will be possible.  Great advances are being made in the field of artificial intelligence.  It seems difficult to conceive of a machine that has the will to do justice.  But already some tax and migration rules are being reduced to automated form.  As these changes occur, it will be essential to retain the element of flexibility and discretion that are imperative to a just judicial system.

 

          Legal practice is also changing.  Because of the Internet, clients of the future will be much more readily able to find, with or without the lawyers, the basic principles of statutory and common law applicable to their case.  They will not go to lawyers for that information but for some added value of analysis, insight and judgment.  This will be the commodity that lawyers will provide[2].  They will be retained to give unbundled legal assistance on some aspects only of a legal problem. 

 

          Many changes in legal practice have already occurred.  Much information is now given to clients by email.  Basic directory data is often available on the Webpage of law firms.  An increasing number of self-represented litigants can search the Internet for referral directories.  With the assistance of electronic advice and rights centres, they will feel competent to present their cases to decision-makers without benefit of qualified advocates.

 

          It seems unlikely that this will, in the short run, abolish or significantly diminish the need for, a trained legal profession at least in a country like Australia.  Standards of literacy in the general Australian population are judged to be quite poor.  This makes it unlikely that we will suddenly see a community that can master the complexities of language and classification that represent important aspects of the lawyer's vocation.  Put simply, the problem is that many clients do not know exactly what their problem is; they do not know the vocabulary in which the law expresses, and solves, such problems; and they do not know the pathways to the information that is essential to the solution to the case.  The more complex the issue and the more uncertain the applicable law, the greater is the risk that a litigant in person will misdirect himself or herself.  Every judge who deals with such litigants will know of the tendency of some to exaggerate the importance of technical defects in their opponent's process (rather than matters of substance) and to bombard the decision-maker with large amounts of irrelevant, or barely relevant, material. 

 

          Generally people with legal problems need to start with a friend or guide who can put them into the right line of inquiry.  Often this person may be a member of another profession; or a public official; or a member of some non-governmental organisation who affords advice and support to indigent people. 

 

          Some legal firms have now taken to publishing on their Webpage basic information on recent developments in the law.  Some are instituting simple systems of advice for clients.  Of course, without carefully drawn disclaimers this may expose the adviser to liability for negligent and incorrect advice.  That is why care must be taken in the provision of even general information.  It is why some Webpages require the user of the advice to indicate an acceptance of non-liability on the part of the provider before gaining access.  In Australia, major Websites afford important sources of legal data now available to the general community.  No longer is the law locked up in law libraries, inaccessible to the public.  Various systems are available to help the lay person find the law.  They include AUSTLII, Legal Opinion, Legalmart, Findlaw and Cybersettle.

 

          The potential benefits, and occasional risks and limitations, of law on line is now attracting detailed analysis[3].  We are only at the beginning of this process that renders basic legal data accessible to the non-lawyer.  Of course some non-lawyers will remain in the dark, even when they have the pertinent material.  They will simply not understand the language and the concepts.  But many skilled organisations and individuals will understand what they find.  That fact will present new challenges to the legal profession.  It will, in time, alter the traditional legal service and, for such individuals, require the provision of "commoditised legal service"[4]. 

 

          It is essential that members of the legal profession who seek to understand what the future of the profession promises should understand the profound implications for how law will be practised in the future, many changes to be brought about by digital technology.  Because the technology is already with us, and is advancing at an extraordinary rate, every lawyer and every legal firm should be considering the implications of the technology for the practice of law twenty years down the track.  Courts should also be considering their implications not only for the efficient provision of court services but for the more fundamental question of what, in the future, those services will be. 

 

          It is false complacency to think that such changes will be confined to marble and glass offices of lawyers in developed countries of the Commonwealth.  The lesson of recent decades is that new technology is pervasive, universal and quickly adapted.  Once invented, the photocopier soon spread around the world.  Then the corrective typewriter.  Then word processors.  Then the Internet with its wealth of legal data and its mountain of email.  Now voice recognition, electronic filing and legal information kiosks are gathering pace everywhere.  Perhaps they will bring law to the people as Jeremy Bentham urged 150 years ago.  The impact of this technology will be felt not only in how we do law but on our very notions of what law is.

 

          Impact on medical practice:  Nor will the legal profession be alone in the impact of new information technology.  In some ways the future of this technology in law can be seen by examining what has already occurred in our sister profession, medicine.  The implications for medical practice of computerised medical files are already evident.  The automation of patient files will be to the substantial benefit of patients.  It will help improve diagnosis, reduce duplication of effort, improve the provision of relevant medicines and prevent malpractice.  On the other hand, it will probably reduce patient privacy, afford access to many more persons of information hitherto regarded as confidential and it may lead to further government controls over the work of individual practitioners. 

 

          In Australia, we have seen recent instances of how such controls might work in the intervention of the federal government designed to discourage the prescription of cholesterol lowering drugs at current national levels.  Whether such intervention was designed to improve the health of the Australian population or simply to save money for consolidated revenue, may be a matter of argument.

 

          Telemedicine is already with us to some extent.  It means that many technologically literate patients will already have had access to basic information concerning their conditions before they visit a medical practitioner.  Indeed, in some instances, because of their anxieties, they may have more up to date information than the medical practitioner whom they consult.  This will impose a new dynamic on the relationship between doctor and patient.

 

          Some illnesses in the future will probably become more suitable to home care.  I refer to chronic cardiac and respiratory conditions and psychiatric diseases.  Home care is also less expensive to the public, avoids risks inherent in hospitals and is often more congenial to the patient.  But some writers are questioning whether the advance of accessible medical information on the Internet will reduce the need for medical practitioners of the current model and have large economic consequences for a profession organised as the medical profession is in more developed countries. 

 

          The experience of life is that when one door closes for technological reasons, another tends to open.  The provision of medical (and to a lesser extent legal) services is now a global phenomenon.  The world can be roughly divided into three time zones of the working day.  In the future, the medical practitioner in Australia may be able to sell services, online, to patients in different parts of the world.  Especially will this be so when it becomes possible to adapt medical technology to permit the performance of diagnosis, intervention and even surgery at long distance.

 

          The gradual replacement of some surgical interventions by microsurgical automated procedure has moved beyond the theoretical stage.  In 1998, the Royal Australian and New Zealand College of Surgeons demonstrated procedures for long distance electronic surgery.  This can be performed with the use of enhanced imaging in three dimensional form.  Computing and robotics will revolutionise surgery.  Already Telesmell has developed a programme that can recognise accurately at long distance thirty distinct smells[5]. 

 

          There is no chance that in the immediate future these changes will abolish the need for skilled medical practitioners.  In many Commonwealth countries the lack of trained healthcare workers is an endemic problem.  Thus, in the response to the HIV/AIDS epidemic in Sub-Saharan African and in the Indian Subcontinent, it will not be enough to ensure the availability of combination therapies freed from the high costs of patient license fees.  It will also be essential to have daily medical advice that monitors the impact of the drugs on the care of the patient.  In a world of doctor shortages, we must hope that pervasive information technology - specifically medical care at long distance - speaking in the local language and supplementing available health services, will come to the rescue of humanity struggling against HIV/AIDS but also against malaria, tuberculosis and other afflictions.

 

          The role of a healthcare worker as a human being concerned in the predicament of another, able to absorb complex data and to make human judgments, will remain for the foreseeable future.  But there is no doubt that, grafted onto the current way medicine is practised, like law, will come extraordinary technology.  It will afford an adjunct to patient files and patient monitoring.  It will provide a supplement, and in some cases a substitute for particular therapies.  It will reduce the risks of human error.  But there will remain the need for human support, insight and the will to help another person who is ill or dying.  Many writers in the field of HIV/AIDS have stressed how important it is for the medical practitioner, breaking the news of HIV infection, to touch and support the patient and to make sure that he or she is counselled and assisted as a human being.  No machine yet devised can do these things.

 

          Informatics will revolutionise the practice of law and medicine.  It will not abolish the need for either profession.  But each profession must prepare itself for major changes.  The future is already with us.

 

GENOMICS

 

          The human genome:  For centuries it has been known that genetics can produce advantageous and disadvantageous conditions in plants, animals and humans.  However, it is only in the last half century that radical advances have enabled humanity to understand exactly why this is so.  Following the remarkable discovery by Watson and Crick in 1953, humanity acquired its first knowledge about the operation of genes and their significant consequences for the life forms that they control.

 

          In 1990, a group of scientists, mostly operating in the public sector, agreed to embark upon an international project to map the human genome.  This group formed itself into the Human Genome Organisation (HUGO).  With the aid of computers, and by pooling data, the scientists set about the task of mapping the genome.  It was anticipated that the project would take fifteen years and that it would reveal that there were about 100,000 genes to explain the complexity of the human being.

 

          In fact, the project was basically completed in about fifteen years, partly because of the intervention at the end of the twentieth century, of private sector competitors for HUGO, especially Celera Corporation using some of the most highly powered computers in the world.  The project of mapping discovered that the number of genes was considerably fewer than at first anticipated.  It now appears that in the human genome, there are fewer than 30,000 genes.  Most humbling of all was the discovery that the human being shares 50% of its genome with the banana and 97% with the mouse.  Science was revealing quite clearly that humanity, although the "highest" form of life, is truly but the most advanced form of the great apes.  Yet it is only humanity that has the intelligence to unravel the genome.  Indeed, to be inquisitive about the genome in the first place.  Now we have to hope that humanity has the intelligence and moral insight to decide what to do with the data. 

 

          In February 2001 the provisional first draft of the human genome was completed and announced consecutively both by the publicly funded HUGO and the private sector Celera Corporation.  At this stage, the existence of the genes that make up the human genome may be known.  But the identity of the individual genes and a full understanding of what work they each perform is not yet known.  It has been said that we are at the point of having an encyclopaedia written in an unknown language.  Gradually, by processes of isolation of particular genes, married with patients demonstrating particular genetic conditions, it has been possible to isolate many genes that perform known functions.  Yet for the most part we still lack the Rosetta Stone that will help us to understand the work which our genes perform.  Once this knowledge exists, the hope is that it will lead on to the development of genetic tests (for the presence or absence of genetic "disabilities") and genetic therapies (for the treatment or elimination of those "disabilities").

 

          Legal issues:  Many legal questions are presented by the completion of the Human Genome Project.  They include the implications of genetic discoveries for the basic assumption of most criminal law.  That area of the law ordinarily operates on the presupposition of free will on the part of the individual.  In common law countries to commit a crime it is normally necessary to establish that the individual both performed an act and did so with the specific intent.  But if it can be shown that, in some individuals, violence, for example, is genetically predetermined or influenced, does this require a fundamental reconsideration of the foundation of criminal liability?  Is it something that knocks away a hitherto settled premise of criminal liability?  Or is it merely something that should be taken into account in sentencing an offender?

 

          Many legal questions are presented by the use of current data concerning genetic conditions.  In the past, such data would have been regarded as the personal information of a patient.  But if such information is relevant to the diagnosis and treatment of a family member, possibly affected by a genetic condition, does that member have a right (not hitherto legally recognised) to have access to that data?  Does an employer have a right to such access, for example to protect the employer's plant from persons with genetic susceptibilities?  Does an insurer have a right to have access to such data in order to exclude from insurance those who may know of no disability but who are revealed by genetic tests to be susceptible to future incapacity or death?  Recently in Australia the federal Attorney-General and the federal Minister for Health asked the Australian Law Reform Commission and the Australian Health Ethics Committee to report on whether, and to what extent, a regulatory framework is required to protect the privacy of human genetic samples and information and to provide protection from inappropriate discrimination on the basis of genetic information[6].

 

          Beyond these issues there are many complex legal and ethical questions which the advance of the Human Genome Project has produced.  I have been privileged to be involved in a consideration of some of these questions in the International Bioethics Committee of UNESCO and in the Ethics Committee of HUGO. 

 

          Time does not permit an identification of all of the questions presented to law, medicine and society by the advance of the Human Genome Project.  Let me mention three that have recently come under consideration in the foregoing bodies.

 

(a)     Embryonic selection:  Every human life begins its journey as an embryo.  This is a form of life no bigger than a full stop on a printed page.  Yet an embryo can be subjected to analysis with the use of the advancing knowledge about the genome.  Because tests are now available to reveal particular genetic conditions, such as proneness to Huntington's Disease or cardiac disability, it is at least possible (and will increasingly become so) to select particular embryos and reject others on genetic grounds.  Is this something that the law should permit, facilitate or forbid?

 

          In the United Kingdom, a controversy arose in 2000 concerning whether deaf parents should be entitled to select an embryo which demonstrated the presence of the gene likely to produce deafness in the child born from the embryo?  Parents urged that such a child would have a more natural relationship with them, understanding the world of deafness in a way that another child, without the gene, would not.  Opponents, on the other hand, have suggested that such pre-implantation embryo tests would be designed to advance the best interests of the parents and not necessarily the best interests of the child concerned.  And where do such selections cease?  Would a parent be entitled to insist on the elimination of embryos with the gene for baldness?  For obesity?  For homosexuality (assuming that to be genetically determined)?  The important point to notice is that, as the capacity of embryonic tests is increased, so are the difficult social and legal questions that have to be resolved.  Unless the law has an opinion on such subjects, it virtually surrenders the course of medical practice to the free market.  It leaves it to parents, guided by medical practitioners and affected by perceived social values, to determine the future composition of the species.  Eliminating an embryo with Down's Syndrome or Fragile X Syndrome may now be commonly accepted in most countries of the Commonwealth.  But where do we draw the line?  And unless the law does draw the line, will the result be a significant diminution in the variety of the human species?

 

(b)     Stem cells and cloning:  Within the embryo are stem cells which, potentially, have (it is thought) great utility in repairing diseased or otherwise affected tissue in a patient.  Thus, it is hoped, that the embryonic stem cells may be used to repair damaged tissue in a heart muscle that has suffered infarction; impaired tissue in brain cells that have been subjected to a stroke or to Alzheimer's Disease; pancreatic tissue that is incompetent to produce insulin; and even possibly a severed spinal chord.  Yet some religions oppose the use of embryonic stem cells.  They regard this as a misuse of a form of human life and indeed an abuse of human rights.  Other religions and moral philosophers dismiss these concerns believing that an embryo, and its stem cells, represents something short of a human being and has no potential to human life if it exists solely in a test tube.  The use of embryonic stem cells is one likely to produce very keen debate.  Different societies will produce different approaches to the ethical and legal questions presented. 

 

          So far there appears to be general unanimity that reproductive cloning, if it is scientifically possible, should not be permitted in the human species.  This activity was said to be contrary to human dignity in the Universal Declaration on the Human Genome and Human Rights produced by UNESCO in 1997.  It has also been forbidden by Australian federal law[7] and in the law of many countries.  However, we have had similar debates in the past in response to intuitive rejections of advances in the technology of reproduction.  In the 1970s, the techniques of artificial insemination husband (AIH) and artificial insemination donor (AID) and even in vitro fertilisation (IVF) were criticised by some as "unnatural".  In today's world it is difficult to prohibit such techniques effectively, if a market exists for them amongst infertile couples.  The debate on reproductive cloning continues.  But without laws, we can be sure that such procedures will take place and will be sought out (including through the Internet) by infertile couples who have not succeeded in securing a genetically related embryo by the earlier technologies of AIH, AID and IVF.

 

(c)     Patenting:  One of the most sensitive legal questions presented by genomics concerns intellectual property law.  Should those who discover the utility of particular genetic sequences who can convert that knowledge into a useful therapeutic technique or diagnostic test be entitled to patent the use of the gene involved  and thereby secure, for a limited period, monopoly rights that oblige others to secure licences if they wish to use them?  Many observers in developing countries, and elsewhere, oppose the explosion of applications and grants of patents in this field.  They regard the human genome, and its immediate byproducts, as part of the common heritage of humanity.  They point to the fact that Fleming and Flory did not seek any intellectual property protection in respect of penicillin.  Watson and Crick did not seek any patent protection in relation to their discovery and applications of DNA although obviously the applications have been enormous.  However, in recent years a change of culture has come upon the world of science.  It is partly related to the reduction in public funding for scientific research and the increasing involvement of the private sector.  The development of complex pharmaceuticals from idea to chemist shop is a highly expensive operation.  The practical conversion of the scientific knowledge about the genome into tests and therapies useful to humanity will involve huge investments.  These facts are said to warrant the application of intellectual property law in this field. 

 

          The subject of intellectual property protection and genomic sequences is currently before a number of agencies of the United Nations.  The International Bioethics Committee of UNESCO is producing a report on the subject following a major symposium held in Paris in January and February 2001.  I attended that symposium and chaired the last session.  A report on the controversies that were raised indicates the sharp divisions that exist particularly (but not limited to) divisions between attitudes in the developed and developing world[8].

 

CONCLUSIONS

 

          A realisation of the range and variety of the technological miracles that are occurring at this time should make us excited.  They present great opportunities for law and other professions to reach out to the public they serve and to enhance the efficiency, accuracy and quality of the services they provide.  Yet there is no doubt that these miracles also present many puzzles, including legal puzzles.  Some of them are merely technical puzzles that can be solved if only we take the time to address them.  Others, like those presented by genomics, are profound and controversial.

 

          The glue that binds Commonwealth countries together is their commitment to democracy, constitutionalism and the rule of law.  They have elected legislatures and governments that respond to popular opinion.  Yet on the profound puzzles of informatics and genomics, popular opinion is sometimes uninformed.  Unless it is informed, it may respond out of intuitive ignorance or in response to sensationalism, dogma and distortion. 

 

          Behind the technological miracles, therefore, stands a question of great significance for the future of elected democracies and the Commonwealth ideal.  How can democracy keep pace with problems as multi-faceted and complex as those which I have mentioned?  In part, they can do so (as has happened in Australia) by engaging expert advisory bodies such as the Australian Law Reform Commission and the Australian Health Ethics Committee to undertake enquiry and to propose new policies and laws that can be adopted by parliaments.  In part, they can rely upon the work of other bodies within the Commonwealth or in regional bodies such as the Council of Europe to stimulate domestic reactions to these issues.

 

          It is important to realise that informatics and genomics are not alien to humanity.  Each is a discovery or invention that has sprung out of the minds of human beings.  Indeed, in future history, it may be said of this moment that it was the time when the human species lifted itself into a new plane of evolution.  Perhaps it is the great plan of Nature, or of God, that in our generation these technological miracles will enhance our species and afford it the means to improve itself in ways that once would have been thought impossible. 

 

          Yet we look about at the real world and see the risks and actuality of war, famine and genocide, ethnic conflict and disease, poverty and environmental degradation.  The miracles may carry us forward.  But whether they will solve contemporary problems, or merely add to them, remains to be seen.  Lawyers must not reject these issues as alien to their discipline.  The shape of legal practice, indeed of the law itself in the future, will be profoundly affected by the miracles of science that unfold every day.

 

 

 

 

 

 

 

 

 

 

 

 

 

THE COMMONWEALTH LAWYER

 

 

LAW IN AN AGE OF FANTASTIC TECHNOLOGICAL CHANGE

 

 

The Hon Justice Michael Kirby AC CMG