Considering the feasibility of a model public health law for the Pacific

This thesis examines the feasibility of a model public health law for the Pacific. When this task was first undertaken, it was inspired by the authors experience in several Pacific countries as a development practitioner supporting legislation development and legal policy development in public health and health system strengthening. Stakeholders in legislation development and legal policy development generally lacked experience and capacity at playing a role in how Pacific health laws might be reviewed and amended having regard to local experience in lawmaking and in global and regional experience and opinion as found in the literature. A model public health law could potentially serve as a starting point for countries wishing to amend and review their laws and could be informed by global thinking in the area but adapted for the specific needs of the Pacific Region. Undertaking research to examine global health governance and lawmaking in public health from a regional and development perspective was unexpectedly difficult. This thesis examines the literature on public health law global health governance and identifies a focus on principles which are argued to be normative, but which are established largely without a developing country perspective. It questions the usefulness of the application of such principles and expectations that developing countries will accept global health governance strategies and proposed legislative mechanisms and approaches when these are developed without reference to their voice or perspective. The thesis fills the gap in the literature by demonstrating that a crucial but almost entirely neglected source of opinion in the global health governance discourse is the lawmaking experience of developing countries themselves. It also demonstrates that lawmaking approaches and mechanisms which emerge from research and consultation of country experience can be quite different from those found in the public health law and global health governance literature. The thesis examines elements of existing laws in four Pacific countries. Where elements of existing public health laws are similar and such laws are old and outdated, is there a place for a model public health law as a starting point for such countries to undertake review and amendment of public health laws? What are the current elements of Pacific public health laws, what legal obligations do countries currently have at domestic and international level and do they incorporate customary law into their current legal systems? What complexities arise in application of domestic laws which include international treaty obligations and normative application of human rights principles in countries with imported western-style legal systems and strong traditions of customary law? As the research progressed, it became clear that the current public health law literature and literature of global health law and governance, while interesting and potentially influential in the Pacific, was not developed with the characteristics of the Pacific in mind. The research on the Model Public Health Law for the Pacific Project and for this thesis has attempted to fill some of those gaps and to answer questions about the feasibility of a model public health law for the Pacific from the Pacific perspective and informed by Pacific experience. It fills a gap in the literature because it looks at mechanisms and approaches to public health lawmaking which do fit ideas of global health governance but which begin with the perspective of developing countries and taking that approach leads to the development of quite different legislative approaches. In 2008, AusAID funded a research project to examine the feasibility of a model public health law for the Pacific. This thesis is a case study which examines the process for development and potential content of a model public health law for the Pacific. Applying a framework for public health law research developed by US scholars, the thesis uses several study types including mapping studies, implementation studies and intervention studies to examine existing public health laws, the use of the laws and approaches to a model public health law for the Pacific which includes customary law mechanisms. It concludes that a model law may be useful where it addresses certain elements of core public health laws identified as important by countries in the region, can be used in whole or in part, is properly tailored for the region and examines policy context and preconditions for implementation. The use of customary law approaches is justified and appropriate in countries which have a tradition of customary law and plural legal systems.

Submission note: A thesis submitted in partial fulfilment of the requirements for the Degree of Doctor of Public Health in addition to completed coursework to the School of Public Health and Human Biosciences, Faculty of Health Sciences, La Trobe University, Bundoora.