AUS — Country Report Australia

Abstract

Australia is a federation in which law-making powers are shared by the Federal Parliament and the States. Australia is also a common law country, and so its law is a mix of common (judge-made) and statute law. Some areas of law are almost exclusively the province of the Commonwealth,¹ while others are the province of the States.² Law-making powers related to health and medicine, which necessarily cover a diversity of subject matters, are possessed variously by the Commonwealth and the States and Territories.³ There are nine Australian jurisdictions: South Australia, Victoria, the Australian Capital Territory, New South Wales, Queensland, the Northern Territory, Western Australia and Tasmania as well as the Federal jurisdiction. Australian laws that safeguard the human rights of patients and research subjects therefore often differ from State to State, sometimes to a considerable degree. This necessarily complicates the task of expounding the rights of patients and research subjects. Further impeding the task of exposition is the fact that biomedical research in Australia is mainly regulated by national guidelines, rather than by national legislation, except where State Governments have seen fit to pass laws on particular types of research, as in the case of research on human embryos (discussed below). Again, this makes for a patchwork of laws and guidelines, with patients and research subjects possessed of variable rights, depending on their location within Australia.