The Judicial Remuneration Act 2007 - Assignment Example

Legal Research Instructions Name: Course: Instructor: Word count: 1568 Part A 1. The Judicial Remuneration Act 2007 part I specify the salaries and allowances given to judges. 2. The Judicial Compensation Clause Article III, Section 1prohibits the reduction of the compensation of a judge during their tenure1. The clause aims at protection of the judges from the intimidation of salary reduction. This offers them protection when giving unpopular judgments that may stir controversy such as the death penalty. It also aims at safeguarding the independence of the judiciary from manipulation of the legislature. However, the law does not prohibit imposing of in discriminatory taxes on their salaries as seen in the case United States v. Hatter [2001]. 3. The regulation of the salaries and allowances of judicial and other related officers occur under the Australian Government Remuneration Tribunal. This statutory authority operates as an independent body under the Remuneration Tribunal Act 1973. The parliament presides over all tribunals and makes judgements regarding them. 4. The remuneration tribunal regulates the salaries of the federal judges. It offers the annual payment to the judges at various levels of jurisdiction. It calculates the entitlements and publishes them in its annual report. The minimum payment for the judge ranges around $200,000 p.a. 5. The Judges Pensions’ Act 1974 came into existence as an amendment to the Judges' Pensions Act 1968-19732. It covers the need for payment of pension to a judge who attains 60 years of age with the service length of 10 years. It also offers the formula for the calculation of pension distributions to various judges and gives guidelines on the payment of pension upon the death of a judge to his beneficiaries. 6. The bill offers an explanatory memorandum to clarify the purpose and the need to amend the original Act. It outlines the various clauses requiring amendments and the proposed amendments to the sections. 7. The Judges Pensions’ Act 2007 part II amended further the Judges Pensions’ Act 1974 to include the guidelines for the distribution of pension protected by the constitution. It covers the entitlements to spouses and other parties offered during proceedings in the divorce property cases3. It also includes the entitlement of pension to de facto and to same-sex partners of the judicial officers, officers protected by the constitution, as well as their children. 8. The tabling of the second reading in the House of Representatives occurred on Friday, June 13 2014. The minister of housing and urban development, hon. Dr. Roodal Moonilal, an MP read the second reading speech to the House of Representative members. 9. Hon. Dr. Keith Rowley, the opposition leader wrote the report referenced by the minister in his speech. 10. The law allows the executive to intervene in the legislation of the judges’ pensions in relation to taxation4. The executive can interfere when dealing with the income tax to ensure collection of maximum revenue for the running of the economy. Part B 1. Cancer Voices Australia Pty Ltd v Myriad Genetics Inc [2013] FCA 655 became the first case where Australia considered the patentability of naturally occurring and isolated DNA and RNA sequences. The law allows for the patenting of these sequences after isolating them from the natural environment. In this particular case, the US based diagnostic company the Myriad Genetics Inc. obtained patents of the BRCA1, a disposing gene. Mutation of the gene provided the diagnoses with a useful tool in undertaking their research on breast and ovarian cancers. The nucleic acid, DNA and RNA isolated from the natural i.e. cellular environment formed the basis of the dispute since it occurs naturally. An advocacy group, Cancer Voices Australia, challenged the eligibility of the nucleic acid as a subject matter for patenting. This formed the basis of their suit and relied on the argument that the element occurred naturally. 2. The judge, Justice Nicholas, ruled that the nucleic acid in question did not occur in the body in isolation form. Therefore, it cannot survive outside its natural environment, cellular environment, without the intervention of a human. This makes the nucleic acid in isolated form a human intervention product since it required a human to carry out the extraction and trap it in a purified form. The process involved in isolating the DNA sequence requires intensive research as well as intellectual effort. Lack of acknowledgement of this fact would cause odd results. The judge ensured consistency of his ruling with the European Union law that outlined the patentability of an isolated element. The isolated elements included the sequence of DNA among other genes. The elements qualify as patentable despite the identical nature of the element to its form in a natural environment. The ruling therefore meant that patenting of an isolated human genetic material qualifies as a viable subject matter of patenting. 3. A breast cancer survivor appealed the ruling made in Cancer Voices Australia Pty Ltd v Myriad Genetics Inc [2013] FCA 65 hoping to reverse the ruling6. Yvonne D’Arcy, the survivor of breast cancer filed the appeal in the Full Federal Court. A bench of five judges presided over the hearings. The case exists in record as D’Arcy v Myriad Genetics Inc [2014] FCAFC 115. 4. In original case, Cancer Voices Australia Pty Ltd v Myriad Genetics Inc [2013] FCA 65, the advocacy group, cancer voices Australia sued the myriad genetics inc. this was the original case and the ruling only included on judge, justice Nicholas. The second case acted as an appellate case for the ruling in the initial hearing. In this particular case, instead of the cancer voices Australia filing the appeal, a cancer survivor named Yvonne D’Arcy filed the appeal. This changed the name of the case to D’Arcy v Myriad Genetics Inc [2014] FCAFC 115. 5. In D’Arcy v Myriad Genetics Inc [2014] FCAFC 115, the five judges assigned the case in the Full Federal Court unanimously rejected the appeal and instead upheld the previous ruling on the matter. This affirmed the validity of the patenting of Myriad’s isolated genetic material. The court decided not to follow the ruling of the US Supreme Court in the case Association for Molecular Pathology v Myriad Genetics Inc [2013] 569 U.S. 12-398. The decision upheld the lack of validity for the patent claims made by Myriad. The full federal court cited the high court and concluded that the isolation of any genetic material from its cellular environment causes structural as well as functional transformation. This results in the formation of a different composition hence viability of patent in the subject matter7. 6. The full federal court cited the high court of Australia in the case, National Research Development Corporation v Commissioner of Patents (NRDC). Here, the high court stated that a product in its natural environment may contain a 'manner of manufacture'. This may occur if the product in claim involves an 'artificially created state of affairs' and an economic significance. 7. The high court granted Yvonne D’Arcy the request for a special leave8. The high court granted the request on 13 February 2015. Granting of a special leave only occurs when the raised issue inclines towards the law and the public has an interest in the matter. The issue may also occur due to a conflict of courts or holds the interest of justice administration. One justice or a panel of justices in the high court makes the decision of granting a special leave for appealing. The high court therefore possesses the power to choose the cases that qualify for the special leave9. Section 35A of the Judiciary Act 1903 offers the limitation in selection of cases qualifying for the special leave. 8. David Catterns acted as the Queen’s Counsel for the appellant while Dr P. Cashman acted as the Queen’s Counsel for Myriad Genetics Inc. the chief justice expected the appeal proceedings to take two months. 9. 'Patent Amendment (Human Genes and Biological Materials) Bill 2010 and Australian Senate Gene Patents Report, the 2004 for as reference for the patentability of genetic materials10. 10. While searching for secondary materials through the Boolean searches, one could make use of the conjunction, AND that ensures the inclusion of all terms and narrows one’s search for materials. The OR traces any of the included terms or all of those terms. This becomes useful when dealing with alternative terms i.e. synonyms. References Burnside S. 2011. "Australian Judicial Biography: Past, Present and Future". Australian Journal of Politics and History. Cancer Voices Australia Pty Ltd v Myriad Genetics Inc [2013] FCA 65 D’Arcy v Myriad Genetics Inc [2014] FCAFC 115 Gee G., Hazell R. and Malleson K. 2015. The Politics of Judicial Independence in the UK’s Changing System. Cambridge University Press. Pogge T., Rimmer M. and Rubenstein K. 2010. Incentives for Global Public Health: Patent Law and Access to Medicines. Cambridge University Press. Rimmer M., 2005. ‘The Freedom To Tinker: Patent Law and Experimental Use’ 15(2) Expert Opinion on Therapeutic Patents 167. Rimmer M., 2012. Patent Law and Lifestyle Genetics’ 22(1) Journal of Law, Information and Science 132. Russell P. H. ,O’brien D. M. 2011. Judicial Independence in the Age of Democracy: Critical Analysis. Cambridge University Press. Shetreet S., Turenne S. 2013. Judges on Trial: The Independence and Accountability Of The Judiciary. Melbourne. Oxford University Press. Twomey A. 2001. The Oxford Companion to the High Court of Australia. South Melbourne, Victoria: Oxford University Press Read More