The UTS LSS Full Bench I 2024

ACKNOWLEDGEMENTS

Editor

Zachary Boswell

Education (Publications) Director

Designed By

Ashley Bokser

Special Thanks

Alex Ramsbottom

UTS LSS President

Ryan Little

UTS LSS Vice-President (Education)

Education (Publications) Subcommittee

Sina Afsharmehr

Brian Chuahiock

Matthew Ham

Akhila Jaimes

Sam Olliver

Shannon Sangineto

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PRESIDENTS ADDRESS

EDUCATION (PUBLICATIONS) DIRECTOR ADDRESS

WHY DISSENT?

Melissa Dib

THE DEVIL’S ADVOCATE: EXPLORING MANDATORY DISSENT IN AUSTRALIA’S HIGH COURT

Brian Chuahiock

‘F*** YOU WHITES’: HOW RACE AND POWER OPERATE WITHIN AUSTRALIAN

RACIAL HATRED LAWS

Bethany Kelly

THE DANGERS OF UNBRIDLED TELECOMMUNICATIONS DATA ACCESS

Jackson Radnedge

CITIZEN-SHIPPED AWAY

Veronique Johnson

“YES IN MY BACKYARD”: THE CASE FOR MINISTERIAL INTERVENTION URBAN PLANNING

Sina Afsharmehr

THE VERDICT ON MENTAL HEALTH: LEGAL APPROACHES TO WORKPLACE WELLNESS

Mariam Yassine IS IT ‘FAIR AND REASONABLE’?: PRIVACY PROTECTIONS IN THE SURVEILLED DIGITAL AGE

Ariella Tracton

REOFFENDING BEHAVIOUR: EXPOSING THE LIMITATIONS OF RISK ASSESSMENT METHODS

Armen Shiraz-Dilanchian

GOING NUCLEAR

Aleksandra Chojnacki

BREAKING THE CHAINS: UNVEILING THE FLAWS OF RETRIBUTIVE JUSTICE AND EMBRACING RESTORATIVE ALTERNATIVES IN AUSTRALIA'S PENAL SYSTEM

Ali Yuldashev

ASYLUM SEEKERS: WHO ARE THEY AND IN WHAT WAY DOES THE PROVISIONS OF THE MIGRATION ACT 1958 (CTH) AFFECT THEM?

Selma Trnka

PRESIDENT'S ADDRESS by Alec Ramsbottom

Welcome to the first volume of The Full Bench for 2024, brought to you by the UTS LSS Education Portfolio!

This edition of the publication, ‘The Full Bench I: In Dissent’, is a brilliant collection of student articles, and by delving into the pages of this edition you will discover the ingenuity and passion of UTS Law students, with their inspired pieces exploring the nature of dissenting within our justice system. Recognising that our laws and the intrinsic governing structures behind them are constantly in need of expansion and renewal is the first step toward a more equal society, with our authors utilising their role as future lawyers to amplify unorthodox and out-the-box thinking.

For many, the act of dissenting is not simply a defiance of those around them, but often a step in helping shed light on the relevant and contemporary solutions to modern day problems. In a world where so many are influenced by shared thought and public opinion, to make your judgment or express your consideration is a bold and courageous move, yet a necessity in creating the vibrant legal atmosphere that defines our existing Australian landscape.

I would like to extend my thanks and admiration to the incredible team behind this publication, including our Vice-President (Education), Ryan Little, our Education (Publications) Director, Zachary Boswell, and the entire Education (Publications) Subcommittee. Their tenacity and enthusiasm in curating this journal has paid off immensely, resulting in a deeply insightful and engaging publication for the ages. I would also like to formally thank all of our student contributors for their thought-provoking commentaries, and for providing innovative perspectives that enrich our understanding of this legal area.

I hope everyone enjoys reading this publication and gains some insight into the various discussions and topics concerning the UTS community and beyond.

EDUCATION (PUBLICATIONS)

DIRECTOR ADDRESS

by Zachary Boswell

It is my great pleasure to welcome you to The Full Bench I 2024: In Dissent.

In Dissent is a collection of twelve student essays that each provide a unique dissent on an area of law, critiquing important issues and highlighting areas of law in need of reform.

From unbridled telecommunications data access, to nuclear power, to citizenship, each essay is a thought-provoking piece, written with passion and a dedication to emphasising the necessity of change within aspects of our legal system. As law students and future legal practitioners, we must all be aware of the importance of forming and maintaining opinions on aspects of our legal system, whereby dissents remain an integral part of that process. I encourage all

readers to consider these dissenting opinions, and think about how our legal system would change if such opinions were followed, perhaps forming your own dissent in the process.

I would like to thank all contributors for their hard work, as significant time and effort went into writing the insightful essays within this publication. I would also like to extend my thanks to our Education (Publications) Subcommittee, and our incredible designer, Ashley Bokser. Finally, I would like to thank Alec Ramsbottom, President, and Ryan Little, VicePresident (Education), of the UTS LSS for their continued support and leadership.

I hope you enjoy reading The Full Bench I: In Dissent.

Melissa Dib

WHY DISSENT?

One of the first things law students learn is how to read and understand cases, the facts, complex legal issues and trying to dissect judgements. It is an incredibly crucial skill required to become a lawyer and develop one's critical thinking. In reading and writing case notes, students engage in reading judicial opinions, whereby judges provide their reasoning for why they have reached a certain legal conclusion. As is commonplace in the legal profession, debates occur as to the application of legal principles, and it is quite frequent that judges will disagree with the interpretations of a majority bench.

When at least one judge disagrees with the majority, this is known as a ‘dissenting opinion’.¹ It is quite rare that dissenting opinions are considered binding, and typically, future cases are not under an obligation to follow them.² These dissenting opinions contest legal issues and contribute to large debates about the relevance, and effectiveness of current statutes.

In the Romanes Lecture delivered by Lord Denning in 1959, his Lordship suggested that “[A judge] should ever seek to do his part to see that the principles of the law are consonant with justice”.³ Whilst it is important that the law be ‘certain’, it equally must ‘be just too’.4 There has been consistent debate about the appropriateness of dissent. In acknowledging this, Justice Ruth Bader Ginsberg, Former Associate Justice of the Supreme Court of the United States, states dissent should be reserved for when ‘important matters are at stake’.5 In Australia, dissenting judgments have quickly become pertinent in the legal landscape6 and are an imperative function of a democratic society.7 As the honourable Michael Kirby AC CMG puts it, “[Australian] judges are … generally resistant to pressures from government and also from their colleagues.”8 Each judge is entitled to their own opinion and interpretation, and it is important judicial independence also extends to independence from other judges.

¹ Cornell Law School Legal Information Institute, ‘Dissent’ (Web Page) <https://www.law.cornell.edu/wex/dissent#:~:text=A%20 dissent%20reference%20to%20 at,to%20write%20a%20dissenting%20opinion>. ²Ibid.

3 Lord Alfred Denning, The Discipline of Law (Butterworths, 1979) 293.

4 Ibid.

5 Honourable Ruth Bader Ginsberg, 'The Role of Dissenting Opinions' (2009) 95(1) Minnesota Law Review 3.

6 Michael Kirby, 'Judicial Dissent is an Appeal to the Future' (2005) (Speech, James Cook University, 26 February 2005).

7 Max Kampelman ‘Dissent, Disobedience, and Defence in a Democracy (1970) 133(3) Wiley 124-132.

8 Honourable Michael Kirby AC CMG, ‘Change: The Importance of Dissent’ (2005).

Surprisingly, there are an array of legal systems around the world that do not permit judges to provide dissenting judgment or discursive reasoning. In some legal systems, heterodox views are not tolerated, and judgments are frozen in a pretence that judges cannot make the law, but only apply it.9 As Kirby states in his piece ‘Appellate Courts, and Dissent’ in the NSW Judicial Officers’ Bulletin, his time on the bench in the Court of Appeal taught him that diversity is imperative in judicial philosophy.10

9 The Hon Justice Michael M H McHugh AC, ‘Democracy and the Law’ (Speech, The Australian Bar Association Conference, 1998).

10 The Hon Justice Michael Kirby, ‘Diversity as the protectress of freedom’ (Speech, Annual Dinner of the Judges and Masters of the Supreme Court of New South Wales, 2004).

11 Ibid.

12 Ibid.

13 The Hon Justice Sarah C Derrington, ‘I Dissent; But Why? (Speech, Dissent in Insurance Law Webinar Corporate and Financial Law Research Group, School of Law, University of Glasgow, 2021).

14 Ibid.

15 (2013) 249 CLR 92.

Interestingly, Kirby’s time in America cemented the importance of dissenting judgments. Professor Sunstein analysed a record of judicial decisions of the United States Circuit Court and concluded that a judge's ideological tendency may be lessened depending on the political views and associations of the other judges on the bench.11 However, personal inclinations increase if the opposite occurs. The existence of diversity of views on a bench, and potential dissenters, increases the likelihood that laws will be followed accordingly, as decisions in courts are more likely to be ‘right’ if they are supported by judges with differing predilections.12

A judge's ability to present an opposing opinion to the majority, or be able to challenge areas of law and how they apply to a set of facts, allows the judicial arm of government to enjoy certain capabilities within a democratic society. 13 This also speaks to the integrity of the judicial system by clarifying majority views, and highlighting the independence of the judiciary. 14 Heydon J’s very last judgement as a member of the High Court of Australia in the case Monis v The Queen15

concerned the implied freedom of political communication and members of the public being informed about who they are voting for. 16 This was a case in which his Honour viewed as an example of the court departing from traditional judicial methods. 17

Similarly, Windeyer J in Victoria v The Commonwealth18 said that the Engineers' Case19 "looked at as an event in legal and constitutional history, was a consequence of developments that had occurred outside the law courts as well as a cause of further development there."The growing realisations that national laws need to meet national needs were an external factor that influenced judicial opinion. 20

This pragmatism is what dissenters are known for. Kirby’s highly individualistic style of writing has made him one of the most recognisable dissenters in our modern day. Dissenters challenge the parameters of the law and reflect developments in community standards. Dissenting voices are important and should be explored.

The law itself may be developed and advanced over time, injustices may be rectified, and differing perspectives may bring to light more deep-rooted systemic issues and depart from the formalism of the legal system.

16 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 557–560; Australia Constitution ss 7 and 24.

17 Gabrielle Appleby and Heather Roberts, ‘He who would not be muzzled: Justice Heydon's Last Dissent in Monis v The Queen (2013)’ (Cambridge University Press, 2016) 335.

18 (1971) 122 CLR 353, 396 (‘Victoria’).

19 (1920) 28 CLR 129.

20 Victoria (n 17).

THE DEVIL’S ADVOCATE: EXPLORING MANDATORY DISSENT IN AUSTRALIA’S HIGH COURT

Introduction: A System Built

Dissenting opinions are interesting creatures in our legal system. On one hand, such opinions could be considered as having no bearing on the current case other than, perhaps, a consolation prize to the losing party. On the other hand, they could form the basis of a radically different legal perspective that may be vindicated in the future. This is likely to be important in a legal system dominated by the doctrine of precedent. As amusingly observed by Murphy J, the doctrine of following ‘what the last person did’ is ‘eminently suitable for a nation overwhelmingly populated by sheep.’1 Hence, as a playful thought experiment to facilitate our evolution from mutton, this writer explores a proposal that obliges the High Court of Australia to entertain the radical, adversarial, and perhaps, the heretical.

For Sheep

Brian Chuahiock

II. The Value Of Dissent

Certain authorities are followed ‘not because their reasoning is admired’ but for the sheer suffocating force of their nature as an authority.2 In this respect, dissent has been lauded for its benefit of preventing cascades - ‘movements in which many people end up thinking something or doing something because of the beliefs or actions of a few "early movers."'3 Brilliant, as the learned members of the bench may be, the pressure from ‘strong judicial personalities in conjunction with judicial herd behaviour…’ may prevent the very independence that is highly regarded in the Justice System and would be ‘antithetical to the common law adversary tradition.’4 It is therefore tempting to praise the author of a dissenting opinion since ‘(t)he pressure of conformity applies to those judges unpersuaded by the majority of their colleagues but not willing to dissent for reasons of pride, effort and the preservation of amiable professional relations.’5 In this respect, the dissent ‘acts as a tonic to the high probability of ideological amplification risked by a politically homogeneous bench’,6 and when a great dissenting opinion is penned, ‘others are less able to view the world in the same way again.’7 Therefore, in the hopes of nourishing this dissenting voice, this writer draws inspiration from a curious mechanism - The Devil’s Advocate.

¹ Gareth Evans, Law, Politics and the Labor Movement (Legal Service Bulletin Cooperative Ltd., 1980) 5.

² Russell Smyth, ‘What Explains Variations in Dissent Rates?: Time Series Evidence from the High Court’ (2004) 26(2) The Sydney law review 221, 240 ('Variations in Dissent Rates').

³ Cass R Sunstein, Why Societies Need Dissent (Harvard University Press, 2003), 54.

4 JD Heydon, ‘Threats to Judicial Independence: The Enemy Within’ (2013) 129 (April 2013) Law quarterly review 205.

5 Andrew Lynch, ‘Taking Delight in Being Contrary, Worried about Being a Loner or Simply Indifferent: How Do Judges Really Feel About Dissent?: A Review of Cass R Sunstein, Why Societies Need Dissent (2003)’ (2004) 32(2) Federal law review 311, 314.

6Ibid 316.

7Allan C Hutchinson, Laughing at the Gods: Great Judges and How They Made the Common Law (Cambridge University Press, 1st ed, 2012) 15.

III. The Devil's Advocate

The term ‘Devil’s Advocate’ originates from the Catholic Church and refers to an ‘official whose ostensible position was to represent the devil in discussions concerning the awarding of titles of “blessed” or “saint” to candidates…’8 Intelligence agencies have consistently used this curious mechanism to ‘sometimes artificially’ present a view or assessment that contradicts the prevailing narrative.9 In Israel specifically, one of the functions of their military intelligence agency (‘AMAN’) is to raise ‘ipcha mistabra’ or alternative intelligence assumptions and attempt to refute them.10 While tempting to retain the gravitas of the name ‘Devil’s Advocate,’ this writer proposes the term ‘Contrarian’s Brief,’ instead to avoid religious connotations.

IV.

The Contrarian’s Brief

For convenience, this writer will lay out the hypothetical requirements of the proposal and then proceed with its mechanics:

The question(s) of law is/are resolved unanimously. 1 2 3

The case must originate or be raised to the High Court of Australia, decided by at least three Justices;

A party raises a question of law, its interpretation or application, for the consideration of the High Court; and

These conditions attempt to isolate the mechanism to areas of law with the most likely future application. In effect, the High Court has the prerogative to overturn any precedent should it decide to do so. Once these conditions are satisfied, the High Court would be obliged to do the following:

1 2 3

One judge will volunteer or be designated as the bench ‘Contrarian,’ obliged to take an opposite position to the unanimous judgment, regardless of their personal opinions.

They will prepare a ‘Contrarian’s Brief’ to argue countervailing narratives, interpretations or applications of law to the bench.

Their brief will be published while indicating that it does not form the opinion of the Justice.

Is it necessary to go to the extent of forcing the esteemed Justices to adopt a position that they do not necessarily believe in? An interesting phenomenon occurs when a person is forced to create arguments to support a position; ‘they tend to come up with reasons that they find the most compelling…’ and ‘can lead to more change in one’s own attitudes than passively receiving arguments from another person’.11 This is because people ‘tend to come up with reasons that they find the most compelling’.12 Applied to the Contrarian’s Brief, the ideal outcome is if the mechanism actually succeeds in changing the designated Contrarian’s mind. In that case, they would then choose to write a dissent rather than a brief.

In addition, there is a benefit to the brief as even if it does not change the minds of the justices, it permits what the Contrarian believes to be the strongest arguments to survive. Good dissenting opinions ‘speak to posterity,’13 and its value lies in the promise or potential of future vindication. In addition, it may also contribute to the court’s legitimacy since the general public can observe the Justices ‘develop their opinions

8 Eyal Pascovich, ‘The Devil’s Advocate in Intelligence: The Israeli Experience’ (2018) 33(6) Intelligence and national security 854-865, 854.

9 Ibid.

10 Ibid 858.

11 Pablo Briñol, Michael J McCaslin and Richard E Petty, ‘Self-Generated Persuasion: Effects of the Target and Direction of Arguments’ (2012) 102(5) Journal of personality and social psychology 925.

12 Ibid.

13 Andrew Lynch, Great Australian Dissents (Cambridge University Press, 2016) ch 1, 9.

by deliberating with one another…’.14 The distinguishing feature that dissent has compared to the Contrarian’s Brief is that a Justice was compelled to pen it, and the contrarian argument would not have existed since the bench was already inclined to unanimity.

The astute contrarian reader may already recognise the fundamental problem of this review mechanism; if none of the justices adopt the proposed legal position, then any brief generated by the bench contrarian may be no different than a work of fiction unsupported by law. While this scenario is plausible, existing mechanisms ensure that a certain position is not entirely untenable. For example, the right to be heard on appeal with the High Court is discretionary,15 which presupposes that a case heard on appeal is not totally indefensible. However, this would be a disservice to the original intention of the proposal; if the High Court could simply pick and choose cases that, in its opinion, it should not hear, then it would preemptively disavow itself of this obligation. Luckily, this does not appear to be of great concern. Despite this writer’s unorthodox proposal, the reader should not be

misled into thinking that recent judgments of the High Court lean towards unanimity. At least in 2019, only 6 decisions on constitutional matters were unanimous out of 44 (around 14%), the lowest since 2012.16 This lends credence to the argument that internal factors within the court, including the leadership of the chief justice, have a statistically significant effect on the rate of dissent.17 Therefore, this writer is cautiously optimistic that if implemented, the High Court would be willing to allow the full ventilation of the issues with this proposal.

This writer’s argument hinges on the bold assumption that perhaps even a unanimous judgment of the High Court may be wrong, however remote this possibility may be. Therefore, it is incumbent on the High Court to identify and re-examine institutional biases and ancient assumptions. This writer argues that sometimes, you must invite the devil, or worse, a contrarian to your halls. Like the proposed obliged objector, I wish to broach the subject with the hope that more elucidated minds may consider its ramifications or at least leave you, dear reader, an amusing mental exercise.

14 Peter Bozzo, Shimmy Edwards and April Christine, ‘Many Voices, One Court: The Origin and Role of Dissent in the Supreme Court’ (2011) 36(3) Journal of Supreme Court history 193, 194.

15 Federal Court of Australia Act 1976 (Cth), s 33.

16 Andrew Lynch, ‘The High Court on Constitutional Law: The 2019 Statistics’ (2020) 43(4) University of New South Wales law journal 1226, 1228.

17 Variations in Dissent Rates (n 2) 240.

‘F*** YOU WHITES’: HOW

RACE AND POWER OPERATE

WITHIN AUSTRALIAN RACIAL HATRED LAWS

Considering the UK racial assault charges against Sam Kerr, heated debate has arisen into the universal definition of what racism is in the eyes of the law. More specifically, this definition begs to the question: who can be the victim of racism? While ‘racism’ in the basic, and legal sense includes discrimination against all races, social theory has led general society to understand racism as a systemic oppression of minority groups from the effects of colonialism, imperialism, and slavery. This paper will consider if Australian Discrimination Laws justly encompass the academic understanding of racism in response to ‘reverse racism’ claims. This article will also compare arguments against Kerr’s charge to the decision of Brown FM in the case McLeod v Power¹ (‘McLeod’) and the implications of codifying Brown FM’s judgment into the Racial Discrimination Act 1975 (Cth) (‘The Act’).²

I. INTRO

Bethany Kelly

HARASSMENT

II. SAM KERR - RACIALLY AGGRAVATED

In January 2023, Australian soccer star Sam Kerr was charged with racially aggravated assault after allegedly calling a police officer a ‘stupid white cop’ in an altercation in London.³ This charge has catalysed divided opinions amongst Australians, where some maintain that verbal harassment involving any nationality is racially motivated and discriminatory. Alternatively, other groups have argued that racial hatred and assault cannot be directed at a ‘white’ person.4 This argument points out Kerr’s Indian heritage and the colonial relationship between India and Great Britain, establishing pre-existing power dynamics between Kerr and the complainant, as well as the power dynamics between a minority civilian and a uniformed police officer.

¹ McLeod v Power (2003) 173 FLR 31 (‘McLeod’).

² Ibid. Racial Discrimination Act 1975 (Cth) (‘RDA’).

³ Adam Vidler and Steve Larkin, ‘UK newspaper reveals Sam Kerr’s alleged racist slur to police officer’ Nine News (Article, 7 March 2024) <https://www.9news.com.au/world/sam-kerr-harassment-chargeslondon-lawyers-will-claim-abuse-of-process/a199d33d-1423-4772-a7bb333c78731e5d>; Tracey Holmes, ‘Sam Kerr’s racially aggravated harassment charge puts Football Australia in a tricky place’ The Conversation (Article, 6 March 2024) <https://theconversation.com/sam-kerrs-racially-aggravated-harassment-charge-puts-football-australia-in-a-tricky-place-225090>.

4 Dr Matthew Klugman and Prof. Christopher Son, ‘Kerr’s curse cut to the heart of racism in Australia’ Victoria University (Article, 22 March 2024) <https://www.vu.edu.au/about-vu/news-events/opinion /kerrs-curse-cuts-to-the-heart-of-racism-in-australia>.

5 Karen O’Connell, ‘Pinned Like a Butterfly: Whiteness and Racial Hatred Laws’ (2008) 4(2.2) ACRAWSA e-journal 1-9.

6 RDA (n 2).

7 Lau v Moorilla Estate Pty Ltd [2024] TASCAT 58.

8 RDA (n 2) s 18C(1)(a)-(b); Australian Human Rights Commission, ‘The Racial Hatred Act: why was the racial hatred act introduced?’ (Web page)

9 [2011] FCA 1103.

10 Ibid; Chris Berg et al, ‘The Case for the Repeal of Section 18C’ (2016) Freedom of Speech in Australia Submission 58 66.

III. RACISM IN LEGAL APPLICATION - STATUTORY AUTHORITY

While Commonwealth Discrimination Laws lead our primary legal protections against racism, the social nuances of race and power remain ‘subterranean’ within Australian law.5 Section 9 of The Act makes it unlawful to ‘do any act involving a distinction, exclusion, restriction or preference’ on another based on race.6 This language envisions circumstances such as hiring employees with a preference in race, or directly denying a racial group entry into an exhibition similar to the MONA Museum case, regarding gender.7 The Racial Hatred Act 1995 introduced amendments to The Act that allowed individuals to bring forward claims of ‘offensive or abusive behaviour in public based on racial hatred.’8 This amendment has brought about cases such as Eatock v Bolt,9 in which a newspaper article claiming that Aboriginal heritage was a ‘trend’ and challenging 18 individuals' Indigenous identities was deemed racial hate.10 Alternatively, s 18C has also been invoked against Pauline Hansen for both her anti-Indigenous comments to the media and comments made in her book ‘Pauline Hansen: The Truth’. These claims were all dismissed for differing reasons, between her language not satisfying the requirements of s 18C to an inability to directly link comments to her.

IV. RACISM AND POWER - JUDICIAL DISCRETION

While The Act defines racial discrimination, it does not touch directly on how the law defines ‘racism’. The Australian Law Reform Commission defines racism as

‘the process by which systems and policies, actions and attitudes create inequitable opportunities and outcomes for people based on race.’ 11

This definition is persuasive within the sociopolitical sphere, but is not binding by precedent for the judiciary or legislature to follow. The discussion of racism and racial subordination has traversed across from interpersonal racism, to how institutions and the upper echelons of power funnel policies of racism down into everyday society.12 Particularly, the notion of ‘power’ has permeated the social dogmas of racism. While moral theories of racism consider any disrespectful act or discrimination on race as ‘racist’, political theories consider racism as ‘dependent on the political sphere’.13 This is significant within colonial societies like Australia, where dispossession, cultural alienation and slavery has constructed the gap of disadvantage between the privilege of white colonial Australians and oppressed minority groups.14 While race can motivate an individual's actions, whether offensive or not, the existence - or nonexistence - of power alongside the prejudice dictates how this conduct utilises race to perpetuate disadvantage.15

While statute law fails to approach racism through a social lens, this has not refrained the Courts from making countervalent interpretations. The case of McLeod is a leading example, subsequently informing common law of the social logistics of projecting racial hatred against someone ‘white’.16 In McLeod, the complainant was a white correctional officer at a state gaol who brought a claim against Power, an Aboriginal

woman. McLeod invoked s 18C on Power’s conduct following her refusal of entry into the prison, subjecting McLeod to profanities such as

‘you white piece of s**t,’ and ‘f**ck you whites, you’re all f**cking s**t.’17

O’Connell explores the intricacies of racism Australia’s discrimination laws in her 2008 paper, frequently citing the decision of Brown FM in McLeod to inform her opinion.18 Particularly, Brown FM’s discussion on the racial inferences of ‘white’ greatly resonate with the Kerr case. As Brown notes, being ‘white’ does not evoke any distinct ‘ethnic, national or racial group.’ 19 The colonial ‘white’ Australian cannot be easily tied to an identifiable race with distinct social customs and characteristics; and has alternatively been described as ‘inoffensive anodyne.’20 Brown FM’s decision circumvents The Act’s elements of racial discrimination through technicality, as it is true

that a ‘white’ person is difficult to tie to a distinct nationality. While open to criticism, Brown FM takes a ‘moral theory’ approach to this element in parallel with the normal application of s 18C.21

While this element of Brown FM’s decision uses agreeable judicial interpretation, Brown’s latter discussions butts heads with The Act’s primary objectives.22 Brown justifies his dismissal of ‘white’ as a racial description in stating that the ‘social dominance of Whites in Australia’ means that they ‘do not need a legal definition since they are not in need of legal protection.’ This is not an

isolated belief. Social academics have ultimately recognised that racism towards a dominant social group, or ‘reverse racism’ colloquially, is not systemically possible. This echoes the previous notion of ‘power’, in that racial hatred towards a colonial Australia does not perpetuate institutional cultural alienation and subordination. In other words, racial hatred towards a minority group carries universal acts of oppression, including dispossession, slavery and aims of extinction, within it. This is materially impossible to recreate by a minority individual towards a white person.

¹¹ ‘What is Racism?’ The Australian Human Rights Commission (Web page) <https://humanrights.gov.au /our-work/race-discrimination/what-racism>.

¹² Michael Banton, ‘Conceptions of Racism’ (2018) What We Now Know About Race and Ethnicity (Berghahn Books, 1st ed, 2018) 81.

¹³Jordan Scott, ‘Does racism equal prejudice plus power?’ (2022) 82(3) Analysis 455-456.

14 Ibid 456.

15 Ibid.

16 McLeod (n 1); O’Connell (n 4) 2.

17 O’Connell (n 5) 1.

18 O’Connell (n 5) 1-9.

19 McLeod (n 1); O’Connell (n 5) 6.

V IMPLEMENTING SOCIO-POLITICAL RACISM INTO LAW

While legal precedent such as McLeod reserves racial hatred as a mechanism for systematically disadvantaged groups,23 the realities of codifying these interpretations would be controversial.

The inherent nature of discrimination laws is to be broad, accessible, and inalienable

Therefore, restricting its use to a particular race violates The Act’s objectives and integrity. Brown FM, as O’Connell notes, effectively ‘erases [McLeod’s] whiteness’ as a racial element. While effective in theory to protect minority groups from unreasonable claims through The Act, 24 discrimination laws could not implement this act of erasure without embedding hypocritical and, ironically, discriminatory objectives. The term ‘erasure’ is particularly concerning, as it evokes notions of assimilative and dispossessive methods originally implemented by colonial Australian against Indigenous communities. This could consequent in the legislature and statute becoming vehicles for systemic revenge and promote divisive and anti-reconciliation sentiments.

O’Connell also notes that white racial hatred cases already often fail within the perimeters of s 18C. The Queensland case of Bryant is an example of this, where the court found that referring to a person of British descent as ‘Pom’ or ‘Pommy’ was not offensive to amount to racial hatred. 25 This suggests that legal interpretation of The Act supersedes the limitations within the language of its provisions, and the judiciary is able to apply the law with consideration of how racism and power socially intertwines. While judicial officers such as Brown FM have called to restrict colonial Australians from being able

to invoke The Act under racial hatred claims,26 the application of the current laws do not place obligations on those interpreting it to apply statutorily.

VI CONCLUSION

While Kerr’s case will be tried under British discrimination laws, the elements of the charge evoke relevant discussion in how race is appropriately handled by Australian law.27 The value of these considerations heighten when considering the distinct subordinating relationship of Australian laws and institutions with its First Nations people, as considered in McLeod, which places a greater obligation on Australian laws to reflect on how its discrimination laws could apply greater weight to Australians most prominent minority group. While The Act gives flexibility to the judiciary to apply the racial hatred provision with sensitivity to social power dynamics, greater conversation could be had in how Anglo-Australian law could formally acknowledge the socio-academic operation of racism and its relationship with power.28 Ultimately, allowing the judiciary to approach racism beyond the definitions of statute law gives the legal system the best opportunity to apply critical thinking to discrimination claims. This method, while not acknowledging the paradigms of power in systemic racism against minority groups, allows discrimination law to operate in the least controversial and most accessible way.

20 O’Connell (n 5) 6.

21 Jordan Scott (n 13) 455; RDA (n 2) s 18C.

22 ‘Legislation’ The Australian Human Rights Commission (Web page) <https:// humanrights.gov.au/ourwork/legal/legislation>.

23 McLeod (n 1).

24 RDA (n 2).

25 Bryant v Queensland Newspaper Pty Ltd [1997] HREOCA 23; Chris Berg et al (n 10) 66.

26 McLeod (n 1); O’Connell (n 5) 7

27 Dr Matthew Klugman and Prof. Christopher Son (n 4).

28 Jordan Scott (n 13).

Jackson Radnedge

THE DANGERS OF UNBRIDLED TELECOMMUNICATIONS DATA ACCESS

“We kill people based on metadata”1

A statement once thought to be an Orwellian reference to a far dystopic future has reached fruition, as the Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 (Cth) (‘the Amending Act’)² allows government entities unbridled access to the ‘communications’³ of Australians. This poses a serious risk of intrusion, as the Parliament fails to consider an individual’s right to privacy in an age that is overloaded with invasive metadata. This article will critically evaluate the Amending Act and its role in enabling government entities to seriously intrude on an Australian citizen’s privacy. It makes note of several effective methods that

European nations employ to proportionally conduct citizen surveillance and data retention. Section 2 will begin by critically evaluating the scope of the mandatory data retention scheme, emphasising its inclusion of data from Internet of Things (‘IoT’) devices. Section 3 will continue by criticising the Amending Act’s unproportionate justifications for accessing a citizen’s telecommunications data. Section 4 then concludes by examining the Amening Act’s role in preventing source confidentiality by providing the illusory protection of ‘Journalist Information Warrants’ (‘JIW’).

II THE BROAD SCOPE OF RETAINED COMMUNICATIONS

The Amending Act retains an unreasonably broad scope of data that intrudes on the privacy of Australian citizens. This is primarily caused by the Amending Act’s broad definition of ‘communications’ capturing data from machine-to-machine communications.4 This scheme captures all data that ‘treat everyone as a suspect’5 regardless of their personal characteristics or probability of committing a crime.6 This means that all citizens have their data from IoT devices retained.

1 ‘David Cole’, Michael Hayden: “We Kill People Based on Metadata” – Just Security’ (Web Page, 10 May 2014) <https://www.justsecurity.org/10311/michael-hayden-kill-people-based-metadata/>.

2 Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 (Cth) (‘Amending Act’).

3 Amending Act (n 2) s 5 (definition of ‘communications’).

4 Telstra Corporation Ltd, Telstra response to the ACMA paper on the Internet of Things — Emerging issues in media and communications (14 December 2015) 7; James Halliday and Rebekah Lam, ‘Internet of Things — Is it Hype of the Next Big Thing? Part II’ (2016) 34(4) Communications Law Bulletin 4, 7.

5 Arianna Vedaschi and Valerio Lubello, 'Data retention and its implications for the fundamental right to privacy: A European perspective' (2015) 20(1) Tilburg Law Review 14, 17 referencing Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources (Court of Justice of the European Union, C-293/12, 8 April 2014) (‘Digital Rights Ireland’).

6 Peter Leonard, ‘Mandatory Internet Data Retention in Australia – Looking the Horse in the Mouth after it has Bolted’ [2015] (101) Intellectual Property Forum 43, 46.

7 Jayavardhana Gubbi, et al, 'Internet of Things (IoT): A vision, architectural elements, and future directions' (2013) 29(7) Future generation computer systems 1645, 1652.

8 Madeleine Wall, ‘Data retention and its implications for journalists and their sources: A way forward' (2018) 22(3) Media and Arts Law Review 315, 321 citing Michal Sawh, The best smart clothing: From biometric shirts to contactless payment jackets (16 April 2017) Wareable <www.wareable.com/smart- clothing/best-smart-clothing>.

9 Allens Hub for Technology, Law and Innovation, UNSW Faculty of Law, Submission 28 to Parliamentary Joint Committee on Intelligence and Security, Review of the mandatory data retention regime (July 2019), p 5.

10 Telecommunications (Interception and Access) Act 1979 (Cth) (‘TIAA’).

IoT devices are devices embedded with electronics, software, sensors, and connectivity to enable the exchange of data with the manufacturer, operator and/or other connected devices.7 This includes ‘wearable technology’ that can track an individual’s heart rate, location and sleeping patterns.8 Government authorities can use this data to re-trace the movements of any citizen without warning or consent. The Allen’s Hub for Technology, Law and Innovation have similarly noted that these metadata sets allow these law-enforcement agencies to reconstruct ‘pattern of life’ information including the requested parties’ movements, browsing, and communication habits.9 Retaining all IoT data is an extreme intrusion to the privacy of Australians. Future iterations of the Telecommunications (Interception and Access) Act 1979 (Cth) (‘TIAA’) should ensure that this is sufficiently limited to IoT data that can directly aid an investigation, such as location data.10

European nations have greatly varied in their perspective on capturing such a broad range of metadata. For instance, The Court of Justice of the European Union declared their metadata retention directive null in 2014, noting that the scheme was a serious interference with the

citizen’s right to privacy.11 The Court took issue with the Directive’s intent to ‘treat everyone as a suspect’ and ‘put everyone under surveillance’.12

Despite this, the Amending Act was passed less than a year later. It not only opted to capture the ‘communications’ of all citizens but includes extensive and intrusive data from IoT devices. Dr Bastos has similarly noted that while the General Data Protection Regulation (‘GDPR’) does not have any clause clarifying the retention of IoT data.13 Its ‘data minimisation’ principle requires that all data collected be limited to what is reasonably necessary, as well as, requiring that

data controllers implement effective and provable measures to guarantee a user’s privacy.14 This principle-based approach allows the GDPR to be flexible in the data it retains, making it much less likely to seriously intrude on the rights of citizens.

By contrast, the Amending Act on a ‘catch-all’ basis regardless of the circumstances. Such a broad scope greatly contrasts international perspectives on data retention and consequently allows government authorities to pose a serious threat to intruding on the privacy of Australians.

III ACCESS TO RETAINED TELECOMMUNICATIONS DATA

The Amending Act provides an unreasonably low threshold for law enforcement agencies to access the telecommunications data of Australian citizens. While this data can substantially aid an investigation, the TIAA poses a serious risk of intrusion to Australians by operating on a ‘good faith’ basis that allows the authorised officer to seek forgiveness rather than permission in a circumstance that provides no penalty to wrongdoers. Officers must ensure that

their request for telecommunications data is a ‘justifiable and proportionate’ interference with the privacy of the person(s) that the data is associated with.15 This includes the consideration of the likely relevance and usefulness of the documents or information.16

While this is a sound measure, the Amending Act fails to provide any approval or review process. It instead relies on a Commonwealth Ombudsman that retrospectively investigates potential breaches that are flagged by aggrieved parties.17 This is a measure of optics rather than practicality. The violated party is not made aware of their data being unfairly accessed, reducing the likelihood that they notify the Ombudsman. If the Ombudsman becomes aware of an unproportionate request, their powers are limited to a public reporting regime18 with no additional punitive or disciplinary powers at their disposal.19 When considered in this context, the Amending Act is too lenient on when a citizen’s telecommunications data can be accessed, allowing authorisation in the case of civil pecuniary penalties or the enforcement of any criminal laws. This results in government authorities having the unbridled opportunity to seriously intrude on the rights of Australians.

This is a serious contrast to its European counterparts. While Germany’s Federal Constitutional Court struck down its data retention scheme in 2010, it noted that access to a citizen’s metadata would be appropriate when limited to the investigation of serious criminal acts or matters of national security.20 Nations including Switzerland, The United Kingdom and Luxemburg have since legislated schemes with

11 Arianna Vedaschi and Valerio Lubello, 'Data retention and its implications for the fundamental right to privacy: A European perspective' (2015) 20(1) Tilburg Law Review 14, 16 referencing Digital Rights Ireland (n 5).

12 Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources (Court of Justice of the European Union, C-293/12, 8 April 2014).

13 Daniel Bestos, et al, ‘GDPR privacy implications for the Internet of Things’ (4th Annual IoT Security Foundation Conference) 4.

14 Ibid.

15 TIAA (n 10) s 180F.

16 Ibid.

17 TIAA (n 10) s 86.

18 Revised Explanatory Memorandum, Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2015 (Cth) [137].

19 Madeline Wall, 'Data retention and its implications for journalists and their sources: A way forward' (2018) 22(3) Media and Arts Law Review 315, 340.

similar restrictions to matters of public security and serious criminal contraventions.21 This higher access threshold significantly lessens the risk of an unreasonable intrusion to the privacy of their citizens. Only 10.05% (30,589 of 304,203) of requests in 2021-22 under the scheme introduced by the Amending Act fall under these categories.22 Employing a European perspective on the Amending Act, this would make 89.95% of all requests a serious intrusion.

While it is reasonable for a user’s data to be accessed in serious criminal investigations or matters of national security, the Amending Act provides unreasonable access to data that intrudes on a citizen’s privacy without any reasonable measure of approval, review, safeguard, or potential punishment in the case of a breach.

IV JOURNALIST’S DATA AND ITS IMPACT ON THE FREE PRESS

The Amending Act offers JIWs as an illusory protection to the free and independent press by only extending to a small portion of all journalists. This narrow scope actively burdens most journalist’s ability to maintain confidentiality and investigatory journalism without the fear of prosecution by allowing law enforcement agencies by removing the need to obtain a JIW. This is contrary to the initial intention of the Amending Act, as JIWs were introduced to ‘recognise the public interest in protecting journalists’ sources by requiring that all requests concerning a journalist be approved.23

The Amending Act requires that the approving authority be satisfied that the ‘public interest in issuing the warrant outweighs the public interest in protecting the confidentiality of the source’.24 Unfortunately, this test is rarely applied due to the Amending Act’s narrow definition of a ‘journalist’. For a journalist to be afforded the protection of a JIW, the authorised officer must know or reasonably believe the person is ‘a person working in a professional capacity as a ‘journalist’ or ‘an employer of such a person’.25 This only protects traditional journalists,26 failing to account for those working independently or through other publication methods such as blog or social media. This scope is also impractically

when compared to federal legislation, which defines a journalist as ‘a person who is engaged and active in the publication of news and who may be given information by an informant in the expectation that the information may be published in a news medium’.27 In fact, the Amending Act’s small scope has rendered the protections entirely obsolete, as zero JIW’s were issued in the 2020-21 and 2022-22 financial years.28 This allows government authorities to access where an investigatory journalist resides, as well as who they are interacting with and where.29 The identification of a journalist’s source becomes elementary, potentially exposing both parties to a real risk of criminal prosecution.30

Providing such minimal protections to journalists is contradictory to international perspectives on the extent of independence afforded to journalists. For instance, the European Commission has identified media freedom as one of the four pillars to assess the rule of law in a country, given its vital role in democratic accountability and its fight against corruption.31 The United Nations Human Rights Commission have similarly recognised that the freedom of expression is inherently linked to a journalists ability to have their sources be protected from intrusion.32

20 Law Council of Australia, Submission No 97 to Parliamentary Joint Committee on Intelligence and Security, Inquiry into potential reforms of National Security Legislation (May 2013), p 5.

21 Alena Birrer, Danya He, and Natascha Just, 'The state is watching you—A cross-national comparison of data retention in Europe' (2023) 47(4) Telecommunications Policy 102542, p 9.

22 Attorney-General’s Department, 2021-22 Annual Report under the Telecommunications (Interception and Access) Act 1979 and Part 15 of Telecommunications Act 1997, Report (2023) 62-64 (‘AG Annual Report 21-22’).

23 Revised Explanatory Memorandum, Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2015 (Cth) [17]; TIAA (n 10) ch 4 pt 4-1 div 4C.

24 TIAA (n 10) ss 180L(2)(b).

25 TIAA (n 10) ss 180H(1)(a).

26 Jared Owens, ‘No protection for bloggers from metadata laws rules George Brandis’, (Web Page, 17 March 2015) <www.theaustralian.com.au/business/ media/no- protection-for-bloggers-from-metadata-laws-rules-george-brandis/ news-story/897797dd3be c1ab6f47238bad3ca1b0b>.

27 Evidence Act 1995 (Cth) s 126J.

The protection of journalists is paramount in ensuring that they can continue to remain free from influence. They play an essential role in ensuring that the general populous can receive unfiltered and accessible information on the very government authorities that have chosen to consistently intrude on their privacy. The Amending Act’s current state almost prevents this entirely. Its protections to journalist’s contain clear loopholes that prevent any ability to maintain confidentiality or privacy throughout their investigations.

V CONCLUSION

There is no question that the TIAA allows government authorities the opportunity to seriously intrude on an Australian’s right to privacy. The 2015 Amendment fails to consider the wide nature of IoT data and its ability to reconstruct the ‘pattern of life’ information of the requested party. Law enforcement agencies have several low-threshold justifications for accessing this data, all of which have no method of review or punishment if the authorised officer has abused their powers. Journalists are not exempt from this intrusion, as the protections available are lacklustre with little of the profession being captured. There is a desperate need for change.

28 AG Annual Report 21-22 (n 21) 64.

29 Emily Howie and Michelle Bennet, No justification for government to worsen privacy intrusions already caused by metadata retention scheme (27 January 2017) Human Rights Law Centre <www.hrlc.org.au/news/2017/1/25/no-justification-for-government-to-worsen- privacy-intrusions-already-caused-by-metadata-retention-scheme>; Patrick Breyer, ‘Telecommunications Data Retention and Human Rights: The Compatibility of Blanket Traffic Data Retention with the ECHR’ (2005) 11 European Law Journal 365, 371.

30 Crimes Act 1914 (Cth) s 70; Crimes Act 1914 (Cth) s 79.

31 European Commission, ‘Communication from the Commission to the European Parliament, The European Council, The Council, The European Economic and Social Committee and the Committee of the Regions REPowerEU Plan (Communication, COM 2020/580, 30 September 2020) 4.

32 Human Rights Committee, General Comment No 34 (2011): Article 19: Freedoms of opinion and expression, UN Doc CCPR/C/GC/34, 11 [45]; See also Human Rights Committee, General Comment No 69 (2000): Concluding observations of the Human Rights Committee: Kuwait, UN Doc CCPR/CO/69/ KWT (27 July 2000) 9 [26].

CITIZEN -SHIPPED

Veronique Johnson

The Commonwealth executive’s excessive power to cease dual national citizenships encroaches upon the separation of powers and places the Minister for Immigration above the rule of law.

For the lives of dual nationals and individuals who have acquired Australian citizenship, maintaining that legal status is essential to their livelihoods. Citizenship is an agreement where a citizen pledges allegiance to the sovereign in exchange for entitlements,² “to be at liberty in this country and to return to it as a safe haven in need”.³ These individuals' civic engagement, access to social services, employment, residency, and community ties depend upon their Australian citizenship.4 Consequently, the loss of citizenship can breach human rights and render individuals stateless, meaning they are “not considered as a national by any state under the operation of its law.”5

Despite these profound consequences, the Minister for Immigration wields substantial discretion to cease the citizenships of these individuals,6 for serious and fraud offences7 , failure to comply with special residence requirements,8 conduct inconsistent with the public's interest,9 and children whose responsible parents cease to be citizens.10

Initially, against the backdrop of heightened global terrorism, the Australian government prioritised national security, leading to a gradual expansion of the Minister for Immigration’s citizenship powers.11 However, over time, these powers have continued to widen to create conditional citizenships, 12 effectively establishing a secondary class of Australian citizens.13

“Power corrupts and absolute power corrupts absolutely”Lord Acton1

-SHIPPED AWAY

1 Lord John Emerich Edward Dalberg-Acton, Letter to Bishop Mandell Creighton, (1887).

2 Stephen Tully, ‘Citizen Deleted’ (2015) 33(1) Australian Yearbook of International Law 131, 141 (‘Tully’).

3 Alexander v Minister for Home Affairs [2022] HCA 19, [ (‘Alexander’)

4 Tully (n 2) 140.

5 Convention relating to the Status of Stateless Persons, opened for signature

28 September 1954, 360 UNTS 117 (entered into force 6 June 1960) art 1(1)

6 Citizenship Act 2007 s 36D (‘Citizenship Act’).

7 Ibid ss34(1)(a)-(b).

8 Ibid s34A.

9 Ibid s34(1)(c).

10 Ibid s361b-d.

11 Sue Milne, ‘Constitutional challenges to the stripping of Australian citizen-

THE SEPARATION OF POWERS

The Minister for Immigration’s power to revoke an individual's citizenship as punishment for their conduct infringes upon the judiciary's role. The separation of powers is enshrined in Chapter 3 of the Australian Constitution, establishing essential checks and balances to ensure that the legislative, executive, and judicial functions remain separate.14 The judiciary's role is to interpret and apply the law in settling disputes and to impose punishment on lawbreakers.15 By empowering the minister to impose punishments, citizenship law places the executives in the judicial role, undermining the separation of powers.16

In Alexander v Minister for Home Affairs (‘Alexander’), 17 the High Court questioned whether the ministerial power to permanently disenfranchise citizens was a punitive and unlawful exercise of judicial power. Delil Alexander, a dual national of Australian and Turkey, gained his Australian citizenship by birth,18 however, after he entered the Syrian province of Al Raqqa, a declared area for the purposes of terrorism offences, he was arrested and detained by the Syrian government.19 Despite being acquitted of terrorism charges under the Syrian Penal Code,20 the Australian

ship: an update’, Global Citizenship Observatory (Robert Schuman Centre, 27 February 2024) 3 (‘Constitutional challenges’).

12 Law Council Of Australia, Submission to Parliamentary Joint Committee on Intelligence and Secuirty, Australian Citizenship Amendment (Citizenship Repudiation) Act 2023 (Cth) (15 Febrary 2024) 10 [23] (‘Law Council 2024 Submission’).

13 Ibid 10 [23].

14 Australian Constitution Ch 1 - 3 (‘Constitution’).

15 Ibid Ch 3.

16 Molly Greenfeld ‘The Asymmentry of the Seperation of Powers Doctrine in Australia’ (2012) 3, The Western Australian Jursit, 233, 1.

17 Alexander (n 3).

18 Ibid 568 [1].

19 Ibid 568 [4].

Security and Intelligence Organisation (ASIO) advised the Minister that Alexander likely engaged in terrorist activities.21 The Minister, using this advice as evidence, revoked Alexander’s citizenship.22 Consequently, the Court found that this ministerial power “facilitates punishment in the sense of retribution”,23 depriving individuals of citizenship based on the Minister's discretion rather than a conviction. The majority determined that the Minister’s stripping of Alexander’s citizenship breached the separation of powers by performing the judicial role of determining guilt and punishment.24

20 Ibid 568 [8].

21 Ibid 569 [12]–[13].

22 Ibid 569 [15].

23 Ibid 26 [80].

24 Ibid 131 [342].

25 Benbrika v Minister for Home Affairs [2023] HCA 33 (‘Benbrika’).

26 Ibid 7 [20].

27 Ibid 14 [41].

28 Jones v Commonwealth of Australia [2023] HCA 34 (‘Jones’).

29 Ibid 11[37].

30 Constitutional challenges (n 11) 3 [19].

31 Constitution (n 14) cl 5.

32 Australian Citizenship Amendment (Citizenship Repudiation) Act 2023 (Cth)

33 Citizenship Act (n 6) s 34 (1)(c).

34 Citizenship Act (n 6) s 36D(1).

35 Ibid

36 Alexander (n 3) 569 [12]–[13].

37 Law Council 2024 Submission (n 12) 6 [9].

38 Ibid 18 [58].

39 Ibid.

40 Parliamentary Committee on Intelligence and Security, Advisory Report on the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 (Report, September 2015), 115 [6.25] (‘PJCIS 2015 Advisory Report’).

41 Law Council 2024 Submission (n 12) 18 [59].

42 Ibid 6 [8].

43 PJCIS 2015 Advisory Report (n 40) 115 [6.25].

44 Convention on the Reduction of Statelessness, [Opened for signature 30 August 1961 989 UNTS 175 (entered into force 13 December 1975), Art. 8(2) and 8(3). Australia acceded on 13 December 1973 without reservations.

45 Ibid 3 [2].

46 Convention on the Rights of the Child [Opened for signature 13 December 2006, 2515 UNTS 3 (entered into force 3 May 2008), Art. 7 and 8.

47 Citizenship Act (n 6) s33AA(1).

This legal precedent was applied to the subsequent High Court case of Benbrika v Minister for Home Affairs (‘Benbrika’), 25 where the Court found that the Minister, by imposing a punishment for Benbrika’s criminal conduct, infringed upon the judiciary's role.26 Additionally, it established that the Minister’s discretion in exercising this power exceeded executive authority by imposing additional punishment beyond what the courts had already sentenced.27 Both Alexander and Benbrika highlight the threat of the power to revoke citizenships being solely in the hands of the Minister for Immigration and how that figure could easily abuse his discretion. Further, these cases affirm that the power to revoke citizenship because of their criminal conduct should be a judicial function to ensure that the individual's rights are safeguarded.

Contrastingly, in Jones v Commonwealth the High Court upheld the ministerial power,28 affirming that it preserves the integrity of naturalisation processes and is not inherently punitive or judicial in nature.29 This highlights the Court's inconsistencies in characterising the ministerial power as administrative or judicial.30

Consequently, the threat of the Minister for Immigration punitively exercising his power remains a significant threat to the democratic principle of the Separation of Powers.

THE RULE OF LAW

The ministerial power to revoke citizenships without checks or balances undermines the rule of law. Clause five of the Australian Constitution dictates that the rule of law means individuals should be governed by the law rather than one person in power.31 However, in recent decades, the ministerial power to revoke citizenships has greatly expanded. Most recently, the 2023 citizenship reform32 widened the criteria under which the Minister can revoke citizenship for conduct deemed inconsistent with the public interest.33

This is evident through the new provision of s 36D(1) that the Minister can bring forward an application for revoking citizenship at his discretion.34 The risk here is without guidelines or judicial oversight on the executive's discretion, the Minister may fail to adequately consider the unique circumstances of each case or seek expert opinions on whether individuals truly pose a societal threat and their likelihood of reoffending.35 Alexander's case illustrates this point, as the Minister relied solely on ASIO advice to justify citizenship deprivation without taking into account his pardon by the Syrian government.36

Further, the reforms have expanded the scope of citizenship deprivation beyond counter-terrorism to encompass the general objectives of criminal law enforcement.37 Under the previous laws, the Minister could seek citizenship deprivation for individuals convicted of a serious offence with a minimum six-year sentence.38 However, the amendment has since lowered this threshold

to three years.39 This change is criticised as ineffective because a three-year sentence often does not reflect the high degree of seriousness or moral culpability of the offence.40 As such, a sentence of three years is unlikely to be objectively serious enough to outweigh the severe consequences of a loss of citizenship.41 The NSW Law Council condemns these amendments as “unnecessary, disproportionate and unjustified”,42 asserting that the new provisions are antithetical to our criminal justice system's aims of punishment and retribution but also encouraging rehabilitation for the benefit of both the offender and the community. Therefore, as the Parliamentary Committee of Joint Intelligence and Security asserted, the “loss of citizenship should be attached to more serious conduct and a greater severity of sentence”, 43 to prevent the Minister from revoking the citizenship of individuals who do not pose a genuine threat to national security.

Additionally, the amendments empower the Minister to contravene international law. Under the Convention on the Reduction of Statelessness 1961,44 Australia is obliged to prevent and reduce statelessness over time.45 However, recent amendments lack safeguards, introducing new grounds for citizenship loss and expanding ministerial discretion, thereby increasing the risk of statelessness. Additionally, under Article 7 of the Convention on the Rights of the Child,46 Australia must ensure that children have a nationality and are cared for by their parents, though reforms have extended the law to apply to minors aged 14 and older.47

CONDITIONAL CITIZENSHIP

The Minister's power to revoke citizenship from individuals creates discriminatory practices through conditional citizenships, fostering societal divisions. As a vibrant multicultural society, with 29.5% of the population born overseas,48 many Australians acquired citizenship. Despite this, under citizenship legislation, the individual's citizenship is entirely conditional on their conduct, undermining the common law idea that citizenship is a secure status guaranteed to those who hold it.49 This framework also implies unequal citizenship,

exposing only naturalised citizens to the threat of revocation.50 Consequently, these laws have constructed three classes of Australians: those born in Australia without any allegiance to another country, dual national Australians who can be stripped of their citizenship, and Australian citizens who are at risk of statelessness if they lose citizenship.51 Moreover, the conditions of their citizenship may instil the fear of losing their rights and privileges, which can significantly detriment their civic participation and relational well-being in society.52

48 Australian Bureau of Statistics, Australia’s overseas-born population grows to 29.5% in 2022, (Media Release, 31 October 2023).

49 Anthony Mason, ‘Review of the Australian Citizenship renunciation by conduct and cessation provisions’ (Submission 10, July 2019) 530.

50 Ibid 532.

51 Law Council 2024 Submission (n 12) 10 [23].

52 Deborah Warr and Richard Williams, ‘The shifting terrain of citizenship: a wayfarer’s guide’ (Scoping Report, The University of Melbourne, April 2015) 16.

CONCLUSION

The Minister for Immigration's substantial power to revoke dual nationals' citizenships threatens the democratic principles of the separation of powers, violates the rule of law, and constructs conditional citizenships, significantly undermining Australians quality of life.

To address these issues, firstly, the law should issue clear guidelines to limit the Minister’s discretion when revoking citizenships and ensure checks and balances throughout the process. These guidelines must specify that citizenship can only be revoked in exceptional circumstances where the objective seriousness of the individual conduct outweighs the severe punishment of citizenship deprivation. Within this, each case should be evaluated based on its unique circumstances, including expert assessments of the individual's likelihood of recidivism. Additionally, alternative measures like passport cancellation should be considered before resorting to citizenship revocation.

Secondly, the laws should be reformed to align with Australia's international commitments. This involves implementing measures to avoid statelessness when citizenship is revoked and restricting citizenship revocation to individuals aged 18 and over at the time of their offence.

With these reforms, Australians could finally be protected from the threat of citizenship deprivation at the hands of the Minister for Immigration.

“Yes In My Backyard”

The Case for Ministerial Intervention Urban Planning

INTRODUCTION: CURRENT PLANNING SYSTEM

Planning legislation exists in order to ensure that those subject to it can live in safe, comfortable conditions, free from harms such as pollution and overcrowding. In NSW, this comes largely in the form of the Environmental Planning and Assessment Act 1979, which regulates the rules for the development of land and the assessment of that development.1 Regulations are implemented through Environmental planning instruments that dictate how land can be used. While the Minister for Planning and Public Spaces has authority for both local and state-

level zoning, most regulation is created on a local level through local environmental plans created by councils, which divide the land into various forms of zones ranging from low to high-density residential areas to industrial and conservation areas.2 As councils are directly accountable to their local communities, this system should, in theory, allow for society as a whole to benefit as communities can have their voices heard on an issue that is crucial to everyone’s day-to-day lives.

Sina Afsharmehr

ISSUES CAUSED BY THE STATUS

QUO

In spite of the benefits that arise from empowering local communities, issues can arise from this level of devolution when the pursuit of local interests comes at the expense of society as a whole. As Sydney’s population grows, it would be reasonable to expect the stock of housing to increase proportionally to it. However, what has happened is that wealthier areas closer to the CBD, such as Woollahra, Mosman, and Hunters Hill, have had virtually no new dwellings completed in recent years, while more distant councils in Western Sydney have seen tens of thousands.3 As a result, while more affluent councils experience the benefits of maintaining their exclusivity and avoiding the burdens of supporting the growing population, areas further out face worsening issues with overpopulation, sprawl and lagging infrastructure.

Beyond the more obvious impacts on the most severely impacted areas, the greatest consequences affect society as a whole. The first impact is that the underdevelopment of these areas contributes to the larger issue of an undersupply of housing as there is a significant difference between the number of houses being built and the number of houses needed to keep up with population growth, which, by most estimates, is in the tens of thousands.4 The

1 Environmental Planning and Assessment Act 1979 (NSW).

2 Ibid pt 3 divs 2-4.

3 New South Wales Productivity Commission, Parliament of New South Wales, Building more homes where people want to live ( Commission Paper, May 2023) <https://www.productivity.nsw.gov.au/sites/default/files/2023-06/202305_01building-more-homes-where-people-want-to-live.pdf>.

4 Ibid 27.

ensuing unaffordability and inaccessibility of a need as basic as shelter puts substantial pressure on many people, leading to adverse impacts on physical and medical health for those struggling to make ends meet.5 The second impact is that as populations are forced further west instead of density increasing in the east, Sydney’s sprawl, which already makes its population density far lower than many major cities around the world, such as London, Paris and New York, leading to substantial and unnecessary environmental harms as woodlands are destroyed to make way for new

suburbs.6 Furthermore, the addition of these new, car dependent suburbs will have a far greater carbon footprint than denser, pedestrian-friendly areas.7 Finally, as new immigrants are pushed into certain councils in the West, a gap has emerged between the demographics of them and the wealthy suburbs in the East. It has been argued that this has, in effect, led to a systematically racist outcome where people of colour are forced into outer suburbs while the wealthy core remains disproportionately less diverse and accessible.8

CURRENT PLANS FOR MINISTERIAL INTERVENTION

In response to the issue of lack of housing, the NSW Government is implementing the Transport Oriented Development Program, which aims to increase density. This uses the statutory instrument of a state environmental planning policy to overrule council-level local environmental policy and rezone areas around numerous train stations and community centres.9 From April of 2024, this rezoning will mean that

all non-industrial zones will allow the construction of apartments of up to six stories, with there also being a 2% affordable housing requirement.10 As the areas impacted are mostly train stations in the less developed north of Sydney, this policy will address the aforementioned inaccessibility of wealthy areas and reduce car dependency, in addition to its primary purpose of dealing with the shortage of housing.

COUNCIL OPPOSITION TO PAST MINISTERIAL INTERVENTION

It should not come as a surprise that councils have historically opposed such attempts by the Minister to push for density. An example of this is Lane Cove Council v Minister for Urban Affairs and Planning, where Lane Cove Council attempted to resist a State environmental planning policy that aimed to promote efficient infrastructure use and density.11 The policy had applied to Council as the Minister had found the Council’s proposals for density unsatisfactory, however, the

council attempted to stop this by arguing that it was invalid as the minister had not republished an amended draft of it.12 The court sided with the minister, allowing the policy to go through improving density in one of the wealthiest parts of Sydney.13 This case demonstrates both the extent of planning power that the Minister holds and how housing policy, when left to councils like Lane Cove, will fall short of what can be achieved through ministerial action.

WHERE TO FROM HERE?

Thus, it is clear that leaving housing policy to the councils leads to a number of issues that are far-reaching and have the potential to harm the vast majority of people for decades. Given this threat and the fact that the Minister is empowered to overrule councils where necessary, it is clear that policies aimed at ensuring sustainable and equitable development must continue to be implemented.

5 Kadir Atalay et al, Effects of house prices on health: New evidence from Australia, (2017) 192(November) Social Science & Medicine 36. <https://pubmed.ncbi.nlm.nih.gov/28961481/>

6 Stephen Healy and Abby Lopes, ‘Climate change hits low-income earners harder – and poor housing in hotter cities is a disastrous combination’, The Conversation, (Online, May 12, 2022).

<https://theconversation.com/climate-change-hits-low-income-earners-harderand-poor-housing-in-hotter-cities-is-a-disastrous-combination-180960> ; New South Wales Productivity Commission (n2) 23.

7 Awais Piracha and George Greiss, ‘NIMBYism in Sydney is leading to racist outcomes’, The Conversation, (Online, July 18 2023).

<https://theconversation.com/nimbyism-in-sydney-is-leading-to-racist-outcomes-207204>

8 Ibid.

9 Environmental Planning and Assessment Act 1979 (NSW) pt 3 div 4; New South Wales Government, Transport Oriented Development Program (Web page, December 2023). <https://www.planning.nsw.gov.au/sites/default/ files/2023-12/transport-oriented-development-program.pdf>.

10 Ibid.

11 [2003] NSWLEC 205.

12 Ibid.

13 Ibid 79-82.

Mariam Yassine

The Verdict on Mental Health: Legal Approaches to Workplace Wellness

In the status quo, the prominence of mental health concerns in the employment sphere has reached unprecedented levels. Despite increasing awareness of the issue of mental harm in the workplace, claims of psychiatric injury against employers have only risen significantly since the late 1990s, illustrating the ongoing silent suffering of employees.1 It is imperative for Australia to create reforms addressing this critical concern, given that mental harms such as stress, pose a substantial practical challenge for modern workplaces and individuals quality of life.2 According to the ADP research institute almost half of the Australian workforce, 47%, say their work is suffering due to poor mental health.3 This is particularly concerning as the COVID-19 pandemic has accelerated this trend among young people who have reported a steep increase in negative mental health symptoms in the workplace.4

1 Chelsea Chieng and Marilee Hou, 'Putting Employers on Notice: Kozarov v Victoria (2022) 399 ALR 573' (2022) 43(2) Adelaide Law Review, 976.

2 Anne Davies, ’Stress at Work: Individual or Structures?’(2022) 51 (2) Industrial Law Journal 403.

3 Nela Richardson and Marie Antonello, People at Work 2023: A Global Workforce View report (2023) 34.

4 Emily Upton et al, Changes in mental health and help-seeking among young Australian adults during the COVID-19 pandemic: a prospective cohort study (National Library of Medicine, 2023).

5 [2022] 399 ALR 573

6 Yega Muthu, Psychiatric Illnesses and The Law of Negligence: A Historical Review (2000) Macarthur Law Review 19.

7 Peter Handford, 'Liability for Work Stress: Koehler Ten Years on' (2015) 39(2) University of Western Australia Law Review 167.

8 Yega Muthu, Psychiatric Illnesses and The Law of Negligence: A Historical Review (2000) Macarthur Law Review 5.

9 [2005] 222 CLR 44, 53 [19] (‘Koehler’).

10 Ibid.

A legal response to this critical issue can be derived from the tort law of negligence and its role in allowing employees to seek compensation from their employer if they have suffered “psychiatric injury” at their workplace due to the employer’s negligence. One recent landmark case, Kozarov v Victoria5 (‘Kozarov’) assists in understanding the evolving legal landscape regarding employer responsibilities in ensuring a safe work environment for individuals' mental wellbeing.

Negligence can be defined as incautious conduct which results in a harm to another individual, in situations where a duty to mitigate such harm is present.6 In cases involving claims of negligently caused psychiatric illness, the plaintiff's situation is typically assessed in comparison to a standard of normative susceptibility and disposition. This evaluation is employed to ascertain whether the defendant could have reasonably foreseen the harm to the plaintiff. It can be determined that the defendant had a duty of care to prevent the harm to the plaintiff if it can be established that the harm was reasonably foreseeable.7 Nevertheless, there are significant concerns surrounding the tort of negligence as it pertains to psychiatric harm, predominantly because psychiatric injuries are not easily visible.8 The leading Australian High Court case Koehler v Cerebos (Australia) Ltd9 (‘Koehler’), placed the onus on employees to substantiate the existence of visible warning signs that make the employer aware of the reasonable foreseeability of the risk of harm. However, the decision in the recent case of Kozarov offers valuable clarification regarding employer responsibilities in preventing psychiatric injuries, especially in workplaces with apparent risks to mental health.10 It creates the opportunity to reconsider the scope of employers’ duties to establish a safe system of work in terms of workload, bullying and harassment.

The High Court’s decision in Kozarov compels employers to exercise greater caution in presuming that an employee's psychiatric health is devoid of risks solely based on the employee's agreement to perform the work.11 Consequently, it is now crucial for employers to meticulously review their policies and relevant procedures to guarantee that they provide adequate protection to their employees from mental harm and are providing safe workplaces.

Yet, the distinction between cases with obvious risks, like Kozarov, and those still requiring clear warning signs, as in Koehler, remains uncertain.12

The High Court's decision in Kozarov is based on the case’s specific circumstances and it did not provide guidance on other occupations inherently dangerous to employees' mental health. Given the intense nature of Kozarov's work, it may be challenging to meet the threshold for "inherently and obviously dangerous”13 , that the High Court required for there to be a duty to establish a proactive safe system of work. Hence, the Kozarov ruling potentially created an opportunity for a revaluation of the extent of employers' responsibilities regarding workload, workplace bullying, and harassment. By emphasising the employer’s obligation to preclude foreseeable mental harm risks, the court suggests that employers might be required to proactively address workload issues and mitigate instances of bullying and harassment.

Moreover, this reconsideration of the employer’s scope of duties is greatly required, as over the past two centuries, the tort of negligence has expanded significantly, yet it has struggled to adequately address injuries leading to psychiatric illness. Many existing principles in this context fail to consider the development of medical and societal advancements, resulting in the law not accurately reflecting the contemporary understanding of this topic.15 The role of

negligence law in addressing systemic drivers of mental harm in the workplace is outdated and ineffective, as it excludes genuine claims and allows workplace-related mental harm to persist dangerously hidden. Negligence law has historically favoured compensation for physical harm, even minor injuries, while often disregarding psychiatric harm.16

Nonetheless, the tort of negligence should play a significant role in addressing systemic causes of mental harm in the workplace, given the prevalence and severity of such harm. Holding employers accountable for failing to prevent foreseeable mental harm can incentivise the creation of safer work systems and the resolution of underlying issues contributing to workplace stress. If reforms are made employers will have a vested interest in not only safeguarding themselves from litigation but also in proactively ensuring the well-being of their employees' mental health.17 Therefore, the negligence tort should and can assume a more significant role in tackling the underlying systemic factors contributing to mental distress in the workplace, thereby incentivising employers to be more motivated to proactively address their

Nevertheless, shifting societal perspectives and attitudes about mental health are making it imperative that subsequent psychiatric harm cases incorporate these evolving viewpoints into their assessment of foreseeable risks pertaining to psychiatric harm. As the public's comprehension of mental health progresses, the legal framework should similarly adapt.18 This adaptation may entail acknowledging a wider spectrum of stressors as foreseeable risks and, consequently, necessitating employers to implement more comprehensive measures to mitigate the occurrence of mental harm. In essence, it entails an expanded recognition of potential risks and a corresponding enhancement of employer’s duty to proactively address them.19 Although employer liability for psychiatric injury presents a complex challenge, the growing emphasis on mental health improvement implies that Koehler imposes an ‘unnecessary evidentiary burden’20 on individuals pursuing legal action against employers who fail to protect their employees' mental well-being.

In conclusion, the Kozarov decision marks a pivotal turning point in the legal treatment of workplace-related mental harm. It highlights the heightened responsibilities of employers in preventing foreseeable mental harm, potentially helping to catalyse a comprehensive revaluation of these responsibilities within the evolving framework of mental health awareness. Nonetheless, the complete ramifications of the Kozarov decision regarding the extent of employers' obligations in various industries and the overarching role of negligence in addressing systemic mental harm are yet to be fully elucidated. Moreover, the current scope of the tort of negligence in addressing systemic drivers of mental harm in the workplace is notably constrained. While challenges do exist, due to shifting awareness and attitudes toward mental health it is essential to expand this role to better protect employees.

11 Ibid.

12 Ibid.

13 Kozarov (n 5) 576 [6].

14 Yega Muthu, Psychiatric Illnesses and The Law of Negligence: A Historical Review (2000) Macarthur Law Review 19.

15 Teff, H., Causing psychiatric and emotional harm: Reshaping the boundaries of legal liability (2009) Bloomsbury Publishing Plc.

16 Anne Davies, ’Stress at Work: Individual or Structures?’(2022) 51 (2) Industrial Law Journal 403.

17 Chelsea Chieng and Marilee Hou, 'Putting Employers on Notice: Kozarov v Victoria (2022) 399 ALR 573' (2022) 43(2) Adelaide Law Review, 976.

18 Chelsea Chieng and Marilee Hou, 'Putting Employers on Notice: Kozarov v Victoria (2022) 399 ALR 573' (2022) 43(2) Adelaide Law Review, 976.

19 Anne Davies, ’Stress at Work: Individual or Structures?’(2022) 51 (2) Industrial Law Journal 403.

20 Ibid (n 5) 584 [51].

Is it ‘Fair and Reasonable’?: Privacy Protections in the Surveilled Digital Age

Ariella Tracton

I INTRODUCTION

In an era where digital activity has become a part of the daily lives of billions, almost no personal data is private. The type of data that is shared every time an individual accesses an electronic device can be sensitive and highly personal; therefore it requires protection. The types of data that are collected every time we take a photo, access the internet or use an electronic device can include IP addresses, geo-location, or even highly sensitive health information. Some of this information can be sold illegally to thirdparties or leaked in a data breach, which violates inherent privacy rights. Privacy is a fundamental human right afforded to all individuals under the International Convention on Civil and Political Rights.1 Privacy rights are enabling rights that support freedom of association, thought and expression and freedom from discrimination.2 Information privacy concerns the ability of individuals to determine when, how and for what

II CURRENT LEGISLATION

The Privacy Act elaborates on the obligations of Australia under Article 17 of the ICCPR following ratification.5 The Article outlines that ‘no one shall be subject to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation’.6 There is an obligation to prioritise protecting privacy and individual civil liberties. Compliance with the Privacy Act is expected from businesses and other service providers, including credit reporting bodies, although a small business exception applies to businesses with an annual turnover of under $3 million.7 The Office of the Australian Information Commissioner (OAIC) is responsible for investigating complaints under the Privacy Act

purpose their personal information is dealt with by others.3 The Privacy Act 1988 (‘Privacy Act’)4 is the Australian legislation dealing with the protection of personal information. While this legislation was considered comprehensive at the time it came into force, the unprecedented technological advancements since have created an urgent need for law reform.

The Privacy Act focuses on information privacy, which concerns how personal information is handled. The 13 Australian Privacy Principles establish standards, rights and obligations around the collection, use, disclosure and integrity of personal information. The principles establish the rights of individuals in accessing their own personal information and accountability for organisations.8 Breaches of the Australian Privacy Principles are currently limited to regulatory action and other penalties.

1 International Convention on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (ICCPR).

2 OAIC, ‘What is privacy?’ Your privacy rights (Web Page, n.d) <https://www. oaic.gov.au/privacy/your-privacy-rights/your-personal-information/what-is-privacy?>.

3 Office of the Victorian Information Commissioner, ‘Privacy’, The Importance of Privacy (Web Page, n.d) <https://ovic.vic.gov.au/privacy/resources-for-organisations/privacy-officer-toolkit/the-importance-of-privacy>.

4 Cth (Privacy Act).

5 ICCPR (n 1); Explanatory Memorandum, Privacy Act 1988 (Cth) 2.

6 Ibid.

7 Ibid.

8 OAIC, ‘Australian Privacy Principles’ Privacy (Web Page, n.d) <https://www. oaic.gov.au/privacy/australian-privacy-principles>.

III RECENT AMENDMENTS

Considering recent data breaches, where personal information was accessed or disclosed without authorisation, an amendment to the Privacy Act was introduced. The Privacy Amendment (Notifiable Data Breaches) Act introduced the Notifiable Data Breaches scheme. This scheme requires any organisation or agency subject to the Privacy Act to notify individuals and the OAIC when a data breach is likely to result in serious harm to an individual.9 As this approach is only retrospective, it falls short of adequately protecting the privacy of Australians.

The legislation was recently amended again through the introduction of the Privacy Legislation Amendment (Enforcement and Other Measures) Bill 10 The purpose of the Bill is to increase penalties for serious or repeated interferences

with privacy under the primary Act. The Bill increases the maximum civil penalty for serious or repeated interferences with privacy from $2.22 million to up to $50 million, which is three times the value of any benefit obtained from the conduct or 30% of an entity’s adjusted turnover in the relevant period.11 It also provides the Australian Information Commissioner with greater information sharing powers and provides the Australian Communications and Media Authority (ACMA) with greater information sharing powers under the Australian Communications and Media Authority Act 2005.12 This amendment was largely implemented due to the fallout from the September 2022 Optus data breach.

9 OAIC, ‘About the Notifiable Data Breaches scheme’ Notifiable data breaches (Web Page, n.d) <https://www.oaic.gov.au/privacy/notifiable-data-breaches/about-the-notifiable-data-breaches-scheme>.

10 2022 (Cth).

11 Ibid.

12 Australian Communications and Media Authority Act 2005 (Cth).

IV PROPOSED REFORMS - MAINTAINING THE STATUS QUO

There are imminent law reforms to the Privacy Act, which are predicted to be implemented in the second half of 2024.13 Recommendations include the expansion of the definition of personal and private information, the introduction of the 'fair and reasonable' test and a statutory right to action for privacy breaches. Implementing these recommendations will assist in shifting the role of the OAIC to proactive enforcement, instead of retrospective.

The expansion of the definition of ‘personal information’ from ‘about’ to ‘relates to’ is a necessary change recommended in the proposed reforms. This will ensure that Australia’s position on privacy protections is less narrow and more aligned with the European Union’s General Data Protection Regulation, which is more comprehensive. The introduction of a non-exhaustive list of information that may be considered ‘personal information’, including online identifiers, location data and technical or

behavioural data should be introduced.14 This should be supplemented by clear guidance from the OAIC with respect to protecting this data.15

The ‘fair and reasonable’ test would require the collection, use and disclosure of personal information to be implemented. It would be an objective test assessed by a reasonable person in all of the circumstances.16 This is essential, especially for sensitive information concerning minors, health conditions or other private information. The recommendations include the introduction of an express requirement for collection notices to be clear, up-to-date, concise and understandable and to specify the entity’s retention periods.

The Australian Law Reform Commission proposed a direct right of action and statutory cause of action for serious breaches of privacy.17 This would enable individuals to seek remedies in the courts for breaches and provide a mechanism to seek compensation. Its implementation would require sufficient public consultation to ensure that statutory tort is well-considered and effective in protecting individual privacy.18 This would likely encourage class action activity by groups and individuals subjected to serious breaches of privacy. If this statutory cause of action is introduced to remedy gaps in the Privacy Act, it must be limited in scope to ensure that the businesses and organisations are not unfairly scrutinised and punished.

13 Attorney General’s Department, Privacy Act Review Report (Report, February 2023).

14 Christine Wong et al., ‘Australia’s Privacy Act Review - key issues for consultation’ Insight (Web Page, 28 February 2023) <https://www.herbertsmithfreehills.com/insights/2023-02/australia%E2%80%99s-privacy-act-review-%E2%80%93-key-issues-for-consultation>.

15 Ibid

16 Explanatory Memorandum (n 2) 8.

17 Australian Law Reform Commission, Serious Invasions of Privacy in the Digital Era, Report No 123 (2014).

18 Law Council of Australia, ‘Law Council supports statutory tort for serious invasion of privacy’ Media Releases (Web Page, 8 February 2022) <https://lawcouncil.au/media/media-releases/law-council-supports-statutory-tort-for-serious-invasion-of-privacy>.

V MY PROPOSAL - ROLE OF LEGISLATION AND ENFORCEMENT

There is an urgent need for reform to the Privacy Act to increase transparency around data collection and retention, privacy protections and remedies to individuals for breaches. While the Privacy Act Review Report provides comprehensive and substantive recommendations for reforms, there are missing areas that should be corrected to ensure best practice. The decision in Privacy Commissioner v Telstra Corporation Limited demonstrates the narrow scope of ‘personal information’ under the Privacy Act and the need to update the legislation to account for technological innovation.19

The European Union’s General Data Protection Regulations provide a much more comprehensive regime than what is outlined in the Privacy Act. The Regulations provide clearer specifications around lawful purposes for using data, which requires voluntary, informed consent from individuals, transparent specification of rights to data, information and access. An issue that is not addressed by the proposed reforms is the proactive protection of vulnerable people from data breaches. Vulnerable individuals, including victims of domestic violence can be disproportionately impacted by data breaches through their residential or electronic addresses

being leaked and revealed to their alleged abuser.20 This could lead to imminent threats to safety and freedom of movement for victims. The introduction of a provision in the Australian Privacy Principle 11 - the security of personal information should specifically specify and afford priority in protecting the data and personal information of vulnerable and at-risk individuals. This should be supplemented by OAIC guidance and enforcement to ensure protection and transparency.

The proposed reforms also fail to address the issue of targeted ads. Data brokers receive tracking information from an individual’s online behaviour and use the said information to skilfully advertise goods and services that suit their preference, ultimately increasing the likelihood of its purchase.21 This area remains a grey area of enforcement, which should be resolved. My proposals align with the Australian Competition and Consumer Commission (ACCC) report, which recommends that consumers should opt in instead of only opting out from the use of personal information for targeted advertising.22

VI THE WAY FORWARD - ENSURING EFFECTIVENESS

The narrowly defined Privacy Act should be carefully expanded to ensure privacy protections are upheld. The legislation must be updated to address technological advancements through implementing the proposed reforms. Data breaches pose significant threats to privacy protections and personal information, particularly for more vulnerable people such as victims of domestic violence and children. This danger should be accounted for in the upcoming reforms

in addition to the importance of protecting information privacy more broadly. With the constant dissemination of private data, this law reform is urgent and much-needed. The OAIC must take a more proactive approach to enforcement, regulation of privacy and personal information protections. As the national regulator for privacy and freedom of information, it is unfortunately limited by a relative lack of funding compared to bodies such as the ACCC

and its limited amount of resources.23 A more proactive approach within its means will ensure that Australia upholds its obligations under the ICCPR and ensures that the privacy of individuals is protected. OAIC guidelines should be updated and amended to account for the law reforms. The guidelines should consider the enormous technological advancements since the Privacy Act was first introduced.

19 249 FCR 24; Privacy Act (n 1).

20 Catherine Fitzpatrick, ‘For domestic violence victim-survivors, a data or privacy breach can be extraordinarily dangerous’, The Conversation (Online, 4 December 2023) <https://theconversation.com/for-domestic-violence-victim-survivors-a-data-or-privacy-breach-can-be-extraordinarily-dangerous-216630>.

21 Katharine Kemp, ‘Proposed privacy reforms could help Australia play catchup with other nations. But they fail to tackle targeted ads’, The Conversation (Online, 20 February 2023) <https://theconversation.com/proposed-privacyreforms-could-help-australia-play-catch-up-with-other-nations-but-they-fail-totackle-targeted-ads-200166>

22 Australian Competition and Consumer Commission, Digital Platforms Inquiry (Final Report, June 2019) 11.

23 Mark Burdon and Jodie Siganto, ‘The Privacy Commissioner and Own-Motion Investigations into Serious Data Breaches: A Case of Going through the Motions? (2015) 38(3) UNSW Law Journal 1135, 1137.

Reoffending Exposing the limitations of

Armen Shiraz-Dilanchian

INTRODUCTION

In Australian criminal law, considerable debate surrounds the methods used to assess an offender’s risk of reoffending. This article overviews risk assessment methods used by experts in court proceedings, and assesses the advantages, disadvantages and accuracy of such methods. Although issues regarding these methods have been litigated and discussed by scholars, no clear answer, resolution on preferred methods or alternatives have emerged. Courts are required to balance the community’s right to safety with the right of offenders (who have served their sentence) to have their circumstances and the risk of them reoffending fairly assessed. A conclusion, based both on court commentary, and a review of psychology literature, is that actuarial methods used to assess the risk of reoffending, should not be admitted as evidence in court without evidential transparency.

1 Emphasis added.

2 Cornwall v A-G (NSW) [2007] NSWCA 374, [21] (Mason P, Giles and Hodgson JJA).

3 TSL v Secretary to the Department of Justice (2006) 14 VR 109, 113 [11] (Callaway AP).

4 NSW v Kamm (Final) [2016] NSWSC 1, [41] (Harrison J).

5 Lynn v New South Wales (2016) 91 NSWLR 636, [50]-[51] (Beazley J).

6 Ibid [127] (Basten JA).

7 New South Wales v Simcock (Final) [2016] NSWSC 1805, [71] (Wilson J); New South Wales v Ceissman [2018] NSWSC 508, [24]-[25] (Rothman J).

behaviour: of risk assessment methods

CRIMES (HIGH RISK OFFENDERS) ACT 2006

In determining whether an extended supervision order (‘ESO’) should be made, s 9(3)(c) of the Crimes (High Risk Offenders) Act 2006 NSW (‘the Act’) provides that the Supreme Court is bound to consider assessment results conducted by qualified and registered psychiatrists, psychologists or medical practitioners. Experts can draw conclusions using various risk assessment methods.

Section 5B(d) of the Act requires that for an ESO to be made, the Supreme Court must be ‘satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.’1

‘High degree of probability’ was defined in Cornwall v Attorney General for New South Wales as ‘… something “beyond more probably than not”; so that the existence of the risk, that is the likelihood of the offender committing a further serious sex offence, does have to be proved to a higher degree than the normal civil standard of proof, though not to the criminal standard of beyond reasonable doubt.’2 In contrast, Callaway AP in TSL v Secretary to the Department of Justice, stated that the probability of reoffence need not be more than 50%.3 There is a clear inconsistency

between the expressions ‘beyond more probably than not’ and ‘not more than 50%’, yet the term ‘high degree of probability’ remains in place with a degree of uncertainty as to its meaning.

It is also necessary to assess whether the offender meets the standard of an ‘unacceptable risk’. Case law provides that this expression should involve the balancing of various factors,4 and the context of a case.5 Regarding the word risk, Basten JA states that ‘[t]he concept of “risk” clearly involves a risk to the community’.6As for ‘unacceptable’, it has two elements;

• the likelihood of risk eventuating; and

• the seriousness of harm if it were to eventuate.7

Application of these concepts may be misleading in assessments by courts. A high likelihood that an offender will punch someone in the face may give rise to a high risk of violent reoffending, yet a low likelihood that the offender will commit a murder rampage. While both scenarios are ‘unacceptable’, that term does not distinguish them as regards their levels of seriousness.

RISK ASSESSMENT METHODS AND ACCURACY

Three risk assessment methods and their challenges are reviewed below.

Unstructured professional judgement (‘UPJ’) involves purely clinical prediction, where the clinician uses their discretion to make decisions based on their professional opinion, knowledge and experience.8 This method permits flexibility and wide applicability. Historically, UPJ was used to predict violent reoffending. UPJ has been criticised for its subjective nature and lack of consistency in application. Clinicians may give improper weight to their personal perception of risk factors, particularly amongst minority groups.9 Also, a tendency has been observed that ‘psychiatrists notoriously overpredict’.10

Actuarial prediction has gained prominence in recent times. An examiner allocates a score for a range of criteria. These numbers are then combined to categorise an individual’s total score as either low, moderate or high risk. Issues with this method may be rigidity if limited risk indicators are reviewed or limited empirical data is used.11 Actuarial prediction tools in their very nature incorporate error to minimise overall error from poor data.12 Beneath purportedly objective algorithms are unexamined complications and bias.13 In many circumstances, these algorithms are programmed with imperfect data and are applied out of scope.14 Courts are effectively asked to

presume that the dataset of a particular tool includes only individuals with histories and characteristics similar to the offender. Studies have confirmed that tools may pose difficulties when applied to certain offender groups, for example not accounting for cultural differences and idiosyncrasies.15 Given that actuarial instruments are constructed on samples comprising of predominantly white-Anglo individuals,16 ‘for Indigenous peoples in North America and Oceania… risk instrument accuracy is found to be persistently lower’.17 As Warner observes, ‘While actuarial predictions have been shown to be better than clinical predictions - an interesting point as psychiatric or clinical predictions are central to continuing detention orders - neither are accurate.’18

Concerns with actuarial prediction have been raised regarding the common application of risk assessments developed to measure an individual’s risk of violent reoffending to predict an individual’s risk of a serious violence offence. As highlighted by forensic psychiatrist, Dr Richard Furst, in the case of New South Wales v Wainwright (‘Wainwright’), such erroneous application of actuarial predictions will inevitably cause results which are ‘essentially meaningless’.19

Structured professional judgment (‘SPJ’) is a relatively new method developed in the late 1990s. It aims to balance UPJ and actuarial prediction by imposing set risk factors, while allowing a combination of methods and final risk estimate to the evaluator’s discretion.20 This method has been commended for providing consistency as well as a degree of flexibility.21 SPJ is said to be ‘as accurate as purely actuarial tools, and in many cases they are better, albeit usually slightly.’22 Sheperd and WillisEsqueda also note that ‘For SPJ instruments, the discretionary element allows for assessors to consider and weigh up culturally unique information. However, this latitude also allows personal prejudices and harmful stereotypes to shape the assessment.’23

In a review of five major risk assessment studies, American psychologist John Monahan noted that ‘psychiatrists and psychologists are accurate in no more than one out of three predictions of violent behaviour’,24 while Australian lawyer and legal academic, Kate Warner, found ‘only a one-third to 50% success rate.’25 Such predictions ‘can only be, at best, an educated or informed “guess”’ said Justice Kirby in the High Court case of Fardon v Attorney General for the State of Queensland 26 Putting it pointedly, the cited scholarly studies indicate that SPJ is no more accurate than the flip of a coin. Surely, without evidential transparency, actuarial methods should not be acceptable evidence in court.

Predictive efficacies of risk assessment tools should be subject to repeated empirical validation with diverse sample groups.27 In New South Wales, a 2011 Corrective Services NSW Research Bulletin on the Level of Service Inventory - Revised (‘LSI-R’) tool stated that ‘there is a paucity of rigorous evaluations establishing the LSI-R within Australia.’28 Despite this concerning evidence, Corrective Services NSW continues to use the LSI-R tool for determining an offender's risk of reoffending.29 It may be that

8 Liesbeth van der Heide, Marieke van der Zwan and Maarten van Leyenhorst, ‘The Practitioner’s Guide to the Galaxy – A Comparison of Risk Assessment Tools for Violent Extremism’ (Research Paper, International Centre for Counter-Terrorism, September 2019) <https://icct.nl/app/uploads/2019/09/ThePractitionersGuidetotheGalaxy-1.pdf>.

9 John Monahan, The clinical prediction of violent behavior – An Assessment of Clinical Techniques (U.S. Department of Health and Human Services, National Institute of Mental Health, 1981).

10 Kate Warner, ‘Sentencing review 2002–2003’ (2003) 27 Criminal Law Journal 325, 338; Peter B Shea, Psychiatry in court: the use(fulness) of psychiatric reports and psychiatric evidence in court proceedings (Hawkins Press, 2nd ed, 1996).

11 van der Heide, van der Zwan and van Leyenhorst (n 8) 6.

12 Michael R Davis, ‘Of Broken Legs and Smoking Guns: Structured Professional Judgement and Violence Risk Assessment’ (PhD Thesis, Monash University, 2010) 44; Hillel J Einhorn, ‘Accepting error to make less error’ (1986) 50(3) Journal of Personality Assessment 387, 391.

13 Matt Henry, Risk Assessment: Explained (Web Page) <https://theappeal.org/the-lab/ explainers/risk-assessment-explained/>.

14 Ibid.

15 Stephane M Sheperd and Cynthia Willis-Esqueda, ‘Indigenous perspectives on violence risk assessment: A thematic analysis’ (2018) 20(5) Punishment and Society 599, 601.

16 Stephane M Sheperd, ‘Violence risk assessment and Indigenous Australians: A primer’ (2018) 43(1) Alternative Law Journal 45, 46.

17 Sheperd and Willis-Esqueda (n 15) 602.

18 Warner (n 10) (emphasis added).

19 New South Wales v Wainwright (Final) [2020] NSWSC 104, [208] (Adams J) (emphasis added).

20 Laura S Guy, ‘Performance Indicators of the Structured Professional Judgment Approach for assessing risk for Violence to Others: A Meta-Analytic Survey’ (PhD Thesis, Simon Fraser University, 2008) 6.

21 van der Heide, van der Zwan and van Leyenhorst (n 8) 6-7.

22 Davis (n 12) 43.

23 Sheperd and Willis-Esqueda (n 15) 601-602.

24 Monahan (n 9).

25 Warner (n 10); Shea (n 10) 155.

26 Fardon v A-G (Qld) (2004) 210 ALR 50, 83 [125] (Kirby J).

27 Min Yang, Stephen CP Wong and Jeremy Coid, ‘The Efficacy of Violence Prediction: A Meta-Analytic Comparison of Nine Risk Assessment Tools’ (2010) 136(5) Psychological

technological advancements improve the accuracy of algorithmic prediction. However, Davis notes that ‘predictive power of the various risk schemes may be beginning to plateau.’30

MEASURING RISK FACTORS

It is common for experts to vary the methods they use in creating risk assessments. Wainwright provides insight on variations in methods. In this case, two court-appointed psychiatrists used the same SPJ approach. One ‘measured these risk factors numerically with a score of 0, 1 or 2’ while the other ‘did not attach any numerical value to these risk factors’. In their oral evidence, the former argued ‘that risk was most accurately determined by a scoring system’ while the latter stated that ‘she was familiar with commentary which recommends against using a scoring system to quantify risk’.31 The mere fact that two forensic psychiatry experts disagreed in their respective approaches underscores the variability of opinion on risk assessment methods.

UNQUESTIONED RELIANCE BY COURTS

These methods continue to be applied and relied on without recognising the debate in court commentary and psychology literature about their utility, profound limitations and prevalence of inaccuracy in their application. Ruschena notes that ‘legal practitioners have failed to question the assumptions upon which opinions offered to a court’,32 explaining ‘the broadly uncritical acceptance by both counsel and judges’ of such evidence.33 Yet, as highlighted above, many experts disagree with their peers about the veracity of these methods.

CONCLUSION

As technological advancements continue, and courts readily adopt contemporary risk assessment methods, there must be more thorough evaluation before such evidence is presented to a court. Cases including Wainwright call attention to the need for legislative reform to address foundational issues regarding the admissibility of expert risk assessment evidence. As a part of that reform process, greater transparency of algorithms would be pivotal in improving the accuracy, adoption and understanding of risk assessments, providing a just platform for offenders to be assessed.

Bulletin 740, 741.

28 Ian Watkins, ‘The Utility of Level of Service Inventory – Revised (LSI-R) Assessments within NSW Correctional Environments’ (Research Bulletin No 29, Corrective Services NSW, January 2011) 2.

29 Inspector of Custodial Services, Programs, Employment and Education Inspection (Report, February 2020) 35.

30 Davis (n 12) 22-23.31 New South Wales v Wainwright (n 19) [123]-[124] (Adams J) (emphasis in original).

32 David Ruschena, ‘Determining Dangerousness: Whatever Happened to the Rules of Evidence?’ (2003) 10(1) Psychiatry, Psychology and Law 122, 128.

33 Geoffrey Smith, ‘Evidence, Community Protection and Liberty in Australian Post-Sentence Protection Legislation’ (2008) 13(1) Deakin Law Review 131, 156.

GOING NUCLEAR

Aleksandra Chojnacki

FOREWORD

My grandfather, Stanislaw Chojnacki, was an incredible man. He was curious, dedicated, kind, gentle, and relentless. He often travelled to places like Russia and Japan, where he was celebrated for his work. I have always admired him and always knew that what my grandfather did was important, but it was only recently that I fully appreciated the value of his contributions. My grandfather was Poland’s leading nuclear physicist.

1 Jane Norman, VIDEO: The debate over nuclear power is about to heat up (4 April 2024) <https://www.abc.net.au/news/2024-04-04/the-debate-overnuclear-power-is-about-to-heat-up/103671308>.

2 Oliver Milman, ‘Government rules out nuclear power for Australia’ (17 December 2013) The Guardian <https://www.theguardian.com/environment/2013/dec/17/government-rules-out-nuclear-power-for-australia>.

3 Carl Kitchen, ‘Nuclear power for Australia: A potted history’ (31 August 2023) <https://www.energycouncil.com.au/analysis/nuclear-power-for-australia-a-potted-history/#:~:text=Nuclear%20power%20is%20prohibited%20 in,Act%201998%20(ARPANS%20Act)>.

INTRODUCTION

Despite having the world's largest uranium reserves, Australia shut its door to nuclear power in 1998. The then Prime Minister John Howard needed the Greens support in the Senate to upgrade Australia’s sole nuclear research reactor at Lucas Heights.1 In exchange, he agreed to a prohibition on nuclear power plants. He later attempted to revive the discussion about nuclear power but was shut down by his opponents and this still stands.2 Australia is the only country in the G-20 to have a legislative ban on nuclear power.

Nuclear power is strictly prohibited in Australia principally by two pieces of Federal legislation, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act); and the Australian Radiation Protection and Nuclear Safety Act 1998 (ARPANS Act).3

However, nuclear energy is experiencing a global resurgence. As the world grapples with how best to address climate change, nuclear has found a seat at the multidisciplinary table as a viable, safe, zerocarbon energy source.

So where is Australia in this conversation now?

THE STATE OF PLAY

The anti-nuclear movement claims that we can get to our emission reduction targets through the use of renewable energy. They also claim that nuclear power is a costly and unsafe distraction.

Are they right?

If you google the ‘nuclear energy debate’, all of the podcasts, interviews, and media segments begin recounting the history of atomic bomb testing in the 1950s in regional Australia, using it to elicit an emotional response.4

How can you not be worried & sceptical of nuclear power after hearing the victims stories? Of course you would be, you’d be foolish not to.

Comparing atomic bombs to nuclear power is like comparing apples to oranges. Or more specifically, it is like comparing an army tank to a Tesla. Both are modes of transport but the specific intent of the tank is for destructive warfare, whereas the Tesla

is an innovative, environmentally friendly mode of transport… that can fall apart due to manufacturing faults.

So what about the destruction of Fukushima, Chernobyl, and Three Mile Island?

In each of these instances, there was a lack of adherence to adequate construction standards, a natural disaster, and reckless, unapproved tests.5

All this to say, there is a significant distinction between atomic testing and nuclear power plants, and whilst there is potential for harm, it doesn't mean you stop iterating on greener cars and trying to be better.6 So, if we were to build ‘Teslas’ there would need to be extremely strict regulations, especially since these ‘accidents’ were all either avoidable and/ or misrepresented. Nuclear power plants are not riskfree, but neither are renewables, or any of our current options, and nuclear power, when utilised correctly, has incredible upside.

WHERE ARE WE AT?

In 2022, we legislated Australia's greenhouse gas emission reduction targets. Australia aims to reach Net Zero by 2050, and by 2030 Australia aims to reach emission levels of 43% below 2005 levels.

The Australian Energy Statistics (AES) is the authoritative and official source of annual energy statistics for Australia. In their 2023 Energy Update:

•

•

2021–22 was a record year for Australia’s clean energy supply where renewable generation increased 19%, which accounts for 31% of Australia’s electricity generation.

Solar electricity generation grew by 25% in the 2021–22 year and is 14 times higher than a decade ago.

In 2021–22, the Australian economy grew by 3.6% to $2.2 trillion.

•

Energy productivity improved by 3.7% in 2021–22 and 28% over the past ten years.

Australia uses 22% less energy per dollar of economic output than a decade ago,meaning that we now use ~14% less energy per dollar of economic output.7

This all sounds like good news, right? Well…:

Oil remained Australia’s largest source of primary energy consumption, at 37% of the total, and gas use remained steady at 27% of the primary energy mix.

The population grew by 1.2% to reach 26 million people.

Whilst renewable energy is on the rise with environmental, economic, and social benefits, it just cannot keep up with increasing demands.

Much like nuclear power, renewable energy isn’t without its disadvantages. Solar is dependent on the weather, which is great for Australia, but unsuitable for many other countries. Solar and Wind farms also require a lot of space and bring high initial costs. Hydro has limited reserves, and may also lead to displacement as dams pose a flood risk to surrounding communities.8

4 Jane Norman, VIDEO: The debate over nuclear power is about to heat up (4 April 2024) <https://www.abc.net.au/news/2024-04-04/the-debate-overnuclear-power-is-about-to-heat-up/103671308>.

5 Oliver Stone & Joshua Goldstein, ‘Nuclear Now’ (2022) <https://www.imdb. com/title/tt21376908/>.

6 Jane Norman, VIDEO: The debate over nuclear power is about to heat up (4 April 2024) <https://www.abc.net.au/news/2024-04-04/the-debate-overnuclear-power-is-about-to-heat-up/103671308>.

7 Australian Energy Update 2023 (29 September 2023) Department of Climate Change, Energy, the Environment and Water <https://www.energy.gov. au/publications/australian-energy-update-2023>.

8 Australian Energy Update 2023 (29 September 2023) Department of Climate Change, Energy, the Environment and Water <https://www.energy.gov. au/publications/australian-energy-update-2023>.

SO, WHERE DOES THAT LEAVE US?

The Australian, and by extension the global population is set to grow exponentially. As it grows, so will the demand for Australia’s largest export: coal briquettes, Iron ore, petroleum gas, gold and wheat, all of which require a mass amount of energy to produce.9 While we’re making progress in our current state, a 0.1% decrease in energy consumption in 2021–22 is just not good enough to reach our emission targets - to see a global decline in emissions, and to truly achieve a green, safe future.10 As Brad Pettitt, the sole Greens MP in WA State Parliament highlighted, ‘What’s more disturbing is we have no serious plan to get them down this decade. Nothing is planned at all.’11

AGAIN, WHY DO WE NEED NUCLEAR?

Nuclear power (despite its boogeyman reputation) is scalable, affordable, incredibly powerful, and when done appropriately is by comparison, multitudes safer than coal and oil. That does not mean that it is a panacea - but Rome wasn’t built in a day or with one brick. The reduction of emissions and the production of energy is a team sport and nuclear power may be an invaluable player in addressing some of the issues inherent in Australia's energy transition.12

Until battery technology becomes cost-effective for storing excess electricity generated by intermittent renewables, there will always be the risk that the lights will not come on when the sun is not shining and the wind is not blowing. As we push for greener electricity production, the importance of stable, consistent power cannot be understated. Nuclear may prove invaluable by filling the gaps created by inconsistent renewable energy generation.13

EXISTING INTERNATIONAL COMMITMENTS

According to the US Whitehouse, March 2023 Statement, “AUKUS partners operating highly capable conventionally-armed, nuclear-powered submarines will provide an assured undersea capability that contributes to stability, peace, and prosperity in the Indo-Pacific and around the world”.15 Then, in May 2023, the Australian Government announced its intention ‘to establish a new statutory regulator to regulate the unique circumstances associated with nuclear safety and radiological protection across the lifetime of Australia’s nuclear-powered submarine enterprise relating to AUKUS’.16 In this same briefing document, it is stated that Australia has committed to managing all radioactive waste generated through its nuclear-powered submarine program, including spent nuclear fuel, in Australia”. So, as much as the current nuclear power discourse is set up to sound as though this will be Australia’s first steps into managing clean, reliable and safe nuclear innovation in this century, it is not.

WHAT OF THE WASTE?

Unlike any other energy generating industry, the nuclear sector takes full responsibility for all of its waste. Nuclear fuel is very energy dense, so very little of it is required to produce immense amounts of electricity, especially when compared to other energy sources. As a result, a correspondingly small amount of waste is produced. Moreover, nuclear waste can be recycled. For example, Orano has world-leading industrial scale technologies and found that 96% of spent fuel in nuclear reactors for power generation or research purposes can be recycled. Since nuclear material is recoverable to make new fuels, this will in turn generate their own electricity.14

MOVING FORWARD

Australia is a hotbed of innovation. We are the birthplace of some of the greatest unicorn startups - including those who seek new ways to accelerate, innovate, and improve clean energy.17 However, because nuclear power is prohibited, we are limiting ourselves and what the great minds of Australia can create. The United States, France, and India are currently leading the charge in Nuclear Energy innovation. It’s about time we joined in and helped our friends find the safest, cleanest, and most efficient energy source to ensure the longevity of the world.

So how do we do this? At a high level, we would need to repeal the prohibition systematically, carefully, and tactfully. We must enforce and ensure extremely strict regulation and safety standards. We need to learn quickly from our mistakes and learn from the wisdom of other countries. We would need to seek help when we need it and very cautiously begin to build nuclear power plants, in adherence to best practices. It is not going to be fast or easy, but it will be worth it.18

9 The Observatory of Economic Complexity (OEC) <https://oec.world/en/profile/country/aus#:~:text=Exports%20The%20top%20exports%20of,Chinese%20 Taipei%20(%2424.1B)>.

10 Australian Energy Update 2023 (29 September 2023) Department of Climate Change, Energy, the Environment and Water <https://www.energy.gov.au/publications/australian-energy-update-2023>.

11 Peter Hannan, Surge in WA emissions puts Australia’s net zero targets in doubt (24 March 2024), The Guardian <https://www.theguardian.com/australia-news/2024/mar/25/surge-in-wa-emissions-puts-australias-net-zero-targets-indoubt>.

12 Oliver Stone & Joshua Goldstein, ‘Nuclear Now’ (2022) <https://www.imdb. com/title/tt21376908/>.

13 Deborah Halber, ‘Power when the sun doesn’t shine’ (29 February 2024) MIT News <https://news.mit.edu/2024/power-when-sun-doesnt-shine-0229>.

14 Orano, ‘All about used fuel processing and recycling’, Unpacking Nuclear (Web page, undated) <https://www.orano.group/en/unpacking-nuclear/allabout-used-fuel-processing-and-recycling>.

15 FACT SHEET: Trilateral Australia-UK-US Partnership on Nuclear-Powered Submarines (13 March 2023) <https://www.whitehouse.gov/briefing-room/statements-releases/2023/03/13/ fact-sheet-trilateral-australia-uk-us-partnership-on-nuclear-powered-submarines/>

16 THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA, <https:// parlinfo.aph.gov.au/parlInfo/download/legislation/ems/r7104_ems_00bd675afe1e-47db-b188-3d2c3cd249bd/upload_pdf/JC011438.pdf;fileType=application%2Fpdf#search=%22legislation/ems/r7104_ems_00bd675a-fe1e-47dbb188-3d2c3cd249bd%22>.

17 BESydney, ‘Sydney: The Place to Meet Real Life Giants and Unicorns’ (6 April 2022) <https://www.pcma.org/sydney-place-to-meet-real-life-giants-unicorns/>.

18 Oliver Stone & Joshua Goldstein, ‘Nuclear Now’ (2022) <https://www.imdb. com/title/tt21376908/>.

Breaking the Chains: Unveiling the Flaws of Retributive Restorative Alternatives in Australia's

Ali Yuldashev

INTRODUCTION

Retributive justice has been a long-standing part of the criminal justice system in Australia and worldwide. Prisons justify themselves as a more humane alternative to the previous historical epoch of corporal punishment, while still retaining a sense of ‘justice’, deterring criminal conduct, and keeping communities safe. However, recent years have seen emerging criticism of the whole institution regarding its effectiveness, with criminological research suggesting a new epoch to come. This essay examines the issues regarding our current penal system. It will then examine alternatives to ameliorate its shortcomings.

1 Angela Y Davis, Are Prisons Obsolete (Seven Stories Press, 2003) 16.

2 Olga Cunha et al, ‘The impact of imprisonment on individuals’ mental health and society reintegration: study protocol’ (2023) 11(215) BMC Psychology; Productivity Commission, Commonwealth of Australia, Australia’s prison dilemma (Research Paper, 2021) (‘Productivity Commission, Commonwealth of Australia’).

3 Australian Institute of Health and Welfare, Adults in prison (Report, 2022).

4 Productivity Commission, Commonwealth of Australia (n 2).

5 Productivity Commission, Commonwealth of Australia (n 2); Australian Institute of Health and Welfare, The health of people in Australia's prisons 2022 (Report, catalogue number PHE 334, November 2023).

6 Angela Y Davis (n 1).

7 Australian Institute of Health and Welfare (n 5).

8 Crimes (Sentencing Procedure) Act 1999 (NSW) s 3A(d).

9 Productivity Commission, Commonwealth of Australia (n 2) 3.

Justice and Embracing Australia's Penal System

THE PROBLEMS WITH OUR PENAL SYSTEM

In her book, ‘Are Prisons Obsolete?’ Angela Davis posits that ‘[Prison] relieves us of the responsibility of seriously engaging with the problems of our society, especially those produced by racism and, increasingly, global capitalism’.1 Davis argues that prisons have become an accepted part of the social psyche, unquestioned despite their roots in colonial oppression and continued ineffectiveness at reducing crime or providing justice. While prisons do give out punishment to offenders, that punishment is often expensive, targets disadvantaged groups, does not affect deterrence, worsens physical and mental health, and subsequently increases recidivism.2 In the decade leading to 2022, rates of imprisonment in the general population rose by 20%, retaining the longstanding trend of Indigenous overrepresentation as one third of the current prison population is Indigenous.3 Australia is the third-highest ranking country within the Organization for Economic Cooperation and Development in terms of imprisonment growth, despite slowing in numbers of offenders, which suggests the need for a major re-evaluation of our system.4

The Productivity Commission in their report ‘Australia’s Prison Dilemma’, has noted that most of the prison population come from a deprived socio-economic background, with over half of all prisoners having mental or physical conditions that are worsened by the poor health outcomes of imprisonment and further, poor reintegration strategies.5 The overrepresentation of disadvantaged

groups is not a mere fact of their nature, but rather, a result of the lack of proper social and economic reforms. These include, but are not limited to, access to public housing, health services and unemployment – which, as Davis posited, prisons are a quick bandaid fix for.6 Individuals previously exposed to prisons experience higher rates of homelessness, unemployment, and especially higher rates of worsened mental health; particularly due to the harsh conditions posed by imprisonment.7 These factors often compound and consequently ensue in cycles of abuse and interactions with the criminal justice system. There is therefore a grave misalignment with the very legislation that sets out the Penal systemthe Sentencing Procedures Act, which clearly states rehabilitation to be a primary purpose of sentencing.8

Prison costs burden taxpayers over $5 billion annually – an average cost of $330 per prisoner. This is eleven times more expensive than community corrections orders – community orders involve the offender having to complete community service work in addition to case-specific conditions.9 Given these costs, the question of diverting prison budgets to increase welfare and alternative sentences like community orders which can bring about better community cohesion and more meaningful results is posed. Although welfare reforms are out of the scope of this paper, it is vital to recognise their importance in mitigating criminal activity, especially in respect to summary offences.

WHAT ARE THE ALTERNATIVES?

Several programs currently exist, both in mitigating sentences and rehabilitating offenders. One proven program is Circle Sentencing, which as defined under Part 7 of the Criminal Procedure Regulation 2017 (NSW), permits an Aboriginal person who has pleaded guilty in the Local Courts to be eligible to be sentenced by a group of Aboriginal Elders, community members and a magistrate. While sentencing legislation still applies in circle sentence courts, it has been proven to reduce reoffending by 3.9% and prison sentencing by 9.3%.10 Although reductions in recidivism are marginal, the increased presence of Aboriginal communities in the sentencing process, power vested in deciding appropriate sentences, as well as meaningful awareness of criminality and consequence thereof on Aboriginal communities has a very positive qualitative impact, according to a report by the Cultural and Indigenous Research Centre in 2008.11

Additionally, Youth Koori Courts act in a similar way to traditional Circle Sentencing, except they cater to the unique needs of young Aboriginal people, with careful consideration of risk factors like homelessness or substance abuse factoring in the sentencing of offenders. Support plans are consequently made, and extra assistance is provided – all with the involvement of Aboriginal case workers. These specialist courts

show participants are 40% less likely to receive custodial sentences, with reoffenders 84% less likely to receive a custodial sentence.12 As with circle sentencing, Youth Koori Courts are especially effective in building trust with the criminal system at a young age, but also ensuring special sensitivity when dealing with Indigenous youth.

The NSW Drug Courts are courts that seek close counselling with, and treatment of offenders – many of whom have a history of reoffending and suffer chronic substance abuse.13 The Court involves supervision and community-based programs to reduce and eventually rid offenders of substance abuse issues. This restorative approach recognises the need to rehabilitate those genuinely suffering from abuse, instead of ignoring and sometimes contributing to cycles of abuse through imprisonment. A study by the National Drug & Alcohol Research Centre found a 17% reduction in reoffending for participants when compared to similar control groups.14

While these programs have proven effectiveness over carceral sentences, they are currently limited in jurisdiction, size, and budget constraints given their sometimes-higher costs and extended lengths of time for sentencing. Though limited, they do pave hope and a way for future cases to be managed

relatively uncontroversially for people who commit minor offences. While the above remedies are limited to NSW, the Productivity Commission highlights existing successful programs in other Australian jurisdictions. In South Australia, home detention is used alongside support services to reduce costs; conditional, support-based diversionary programs for low to moderate-level offenders; restorative justice in form of meetings between offenders, victims and support people to reconcile and create a positive path forward for offenders prior to sentencing.15 Whilst other States who heavily rely on the penal system have seen recidivism stagnate or increase, South Australia has seen a 15% decline in recidivism rates from 2016-2022.16 Starkly, the program has also ensured great access to employment and better community building, acting as a great example of a successful restorative approach within the Australian penal system.

10 NSW Bureau of Crime Statistics and Research, Circle Sentencing, incarceration and recidivism (Report, Crime and Justice Bulletin No. 226, April 2020).

11 Cultural and Indigenous Research Centre, NSW Attorney General’s Department Evaluation of Circle Sentencing Program Report (Report, May 2008) 83.

12 NSW Bureau of Crime Statistics and Research, NSW Youth Koori Court reduces custody rates for Aboriginal young people (Report, 28 April 2022).

13 Don Weatherburn et al, ‘The long-term effect of the NSW Drug Court on recidivism’ [2020] (232) Crime and Justice Bulletin.

14 Ibid.

15 Productivity Commission, Commonwealth of Australia (n 2) 84, 91.

16 Department for Correctional Services, Government of South Australia, 10 by 20 Report (Report, 2022) 7.

FUTURE OF SENTENCING

Dialling back to what Davis posed in her book, prisons are a mere punishment for disadvantage, often working to entrench existing socio-economic deprivation, yet when they are the only solution presented to us, it becomes difficult to imagine anything else.17 When considering alternatives it is important to look at the diversity of existing programs like the Drug Courts or Youth Koori Courts, and take note from successes in jurisdictions like South Australia. Ensuring programs target the individual needs of offenders rather than providing a blanket solution is essential and reflected in positive outcomes through lower recidivism rates and better trust in the criminal justice system from First Nations people. Expanding on these restorative solutions and bringing new ones to the table with a particular focus on individualised, case-by-case approaches, as well as involvement of Indigenous consultation and other culturally-sensitive practices is essential to building a more just future, one where sentencing is not a mere punishment but a reformative experience for offenders. When this sentencing is combined with proper reintegration programs that ensure socioeconomic welfare, the Australian Penal system may approach a meaningful and true form of justice.

Taxpayer dollars must not be spent on maintaining the ineffectiveness of the current Australian penal system, rather they should fund initiatives that address the multifaceted issues of offenders. Only if, or rather when the Australian penal system can bring the current alternatives to action on a much wider scale will we see the change to offenders and the community alike. By bringing attention to current alternatives and reimagining justice in future, we can build stronger communities and bring about a more equitable and effective form of justice for all.

17 Angela Y Davis (n 1).

I INTRODUCTION

An asylum seeker is a person who seeks protection in another country by crossing its border to claim refugee status. Article 31 (1) of the Refugees Convention1 bans signatory states from penalising a refugee who crosses its borders without permission. Similarly, Article 14 of the UDHR2 states that everyone has ‘the right to seek and to enjoy asylum in other countries away from persecution’. In this case, Australia has signed both international treaties. The majority of refugees seeking asylum in Australia have faced persecution. However, when refugees apply for a Visa, it is next to impossible and extremely risky to obtain one.3 Australia incorporated the international treaties into domestic legislation, that being The Migration Act 1958 (Cth). However, it refers to asylum seekers as “unlawful non-citizens”. Specifically, section 1894 of the Migration Act requires individuals that do not have visas to be held in immigration detention until they are granted a visa or removed from Australia. Therefore, Australia has failed to uphold its international obligations towards asylum seekers. Due to the absence of a Bill of Rights and accordingly the lack of its ratification into federal legislation, it has not been possible to challenge offshore processing in Australian courts.5 The offshore processing policy in Australia involves a prolonged and arbitrary detention, where the refugees endure cruel, inhumane, and degrading living conditions. As of December 2023, there are 872 refugees in closed detention, and 252 in community detention, where they spend on average, 672 days in detention.6

1 Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954) art 31 (1).

2 Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, UN Doc A/810 (10 December 1948) art 14.

3 Refugee Council of Australia Australia’s asylum policy; it is legal to seek asylum (Web Page, 27 March 2024)

4 Migration Act 1958 (Cth) s 189.

5 Madeline Gleeson and Natasha Yacoub, ‘Policy Brief-Cruel, Costly, and Ineffective: The Failure of Offshore Processing in Australia’ (2021) UNSW Kaldor Centre for International Refugee Law, 13.

6 Refugee Council of Australia, ‘Statistics on People in detention in Australia’ (Web page, 22 April 2024)

Asylum Seekers:

who are they and in what way do the provisions of the Migration Act

1958 (Cth) affect

them?

Selma Trnka

II: THE SIGNIFICANCE AND SCOPE OF THE HIGH COURT’S RULING IN NZYQ 2023:

In the High Court case of NZYQ7, a stateless Rohingya man was indefinitely detained as an unlawful citizen after completing five years in prison. In NZYQ, 20 years of precedent was overturned, including the case of Al-Kateb8 where judges ruled that indefinite detention was lawful.9 In NZYQ the High Court determined that indefinite immigration detention was illegal due to its punitive nature. Chapter III of the Constitution stipulates that a court alone has the authority to impose punishment, not the Migration Act's powers in this particular situation.10 The High Court determined that although sections 189 and 196 of the Migration Act grant the executive branch the authority to detain individuals for deportation purposes, this authority does not extend to detaining individuals without the prospect of deportation in the foreseeable future.11 It was also recognised in the reasoning that it is necessary that the detention be in consequence of the performance of the "exclusively judicial function of adjudging and punishing criminal guilt".12

This was a remarkable day for Australian legal history. It allows Australia to take a step in the right direction in upholding its international obligations and in treating asylum seekers humanly and justly. However, with the promptly followed introduction of the Migration Amendment (Bridging Visa Conditions) Act 2023 (Cth),13 some controversial sections of the Bill have raised disputes and contention within the community, human rights councils, refugee councils and different political parties.

Migration Amendment (Bridging Visa Conditions) Act 2023 (Cth)

Item one and Item two of the amendment include 3 new offences with respect to breaches of visa conditions. If an unlawful citizen is found convicted of one of these offences, the court must impose a sentence of imprisonment of at least one year and a maximum of five years before facing potential deportation.14 This means that the sentencing may be disproportionate to the crime committed and it limits judicial discretion. The Australian Lawyers Alliance noted that ‘there’s no suggestion or evidence [the released detainees] are high risk … there might be some who are, but there are ways of doing that [managing risk] for prisoners every day.’15 Drs Michelle Peterie and Amy Nethery raise that re-detention which is likely to be experienced as a secondary punishment, does not uphold the principles of proportionality and procedural fairness.16

Section 76F found in Item four17 of the bill inserts new powers that an authorised officer may exercise in relation to a person that is subject to monitoring.18 A Chinese refugee known as S15119 who was released at the end of 2023 from detention is seeking a declaration that his curfew and electronic tracking amounts to punishment. His lawyers argued that the Bill's new measures are punitive and exceed parliamentary authority and therefore breach the separation of powers.20 The curfews have affected his personal liberty and autonomy. The monitoring

powers are not discretionary, but rather mandatory unless the minister is satisfied that the person does not pose a threat to the community. The new monitoring measures could therefore become disproportionate to the actual threat faced by the community.

Under section 76F (2),21 the Bill now grants authorised officers’ new powers regarding monitored individuals, including collecting, using, or sharing personal information with others for community protection.22 It is unclear who might access this information, and the Law Council suggests restricting it to specific agencies like law enforcement, as the current legislation may allow personal information to be shared publicly, risking the safety of those involved.23

Migration Amendment (Removal and Other Measures) Bill 202424

The Labour government has proposed an amendment to the Migration Act which is highly disproportionate and punitive.

New prohibition on ‘removal concern countries’

The proposed bill would allow the Minister to discriminate and exclude an entire group of applicants based on their home country through the designation of “removal concern countries”.25 Banning refugees in an arbitrary and discretionary manner would place Australia in several violations of the ICCPR Articles

7 NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37.

8 Al-Kateb v Godwin [2004] HCA 37.

9 ABC News, ‘Decades after a boat arrived in Australia, the government suddenly found itself with an immigration detention system in disarray’, (Web Page, 14 April 2024)

10 Parliament of Australia (Cth), Bills Digest (Digest No 38 of 23-24, 5 December 2023).

11 Paul Gregoire and Ugur Nedim, ‘The Reasons the High Court Ruled indefinite detention is unlawful in Australia’, NSW courts (Web Page, December 5 2023)

12 Date of Publication of Reasoning, NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37, [32].

13 Migration Amendment (Bridging Visa Conditions) Act 2023 (Cth).

14 Parliament of Australia (Cth), Bills Digest (Digest No 38 of 23-24, 5 December 2023).

15 Ibid.

16 Michelle Peterie and Amy Nethery, ‘The Government’s Preventative Deten-

tion Legislation, Explained’, University of Sydney, (Web Page, 11 December 2023)

17 Migration Amendment (Bridging Visa Conditions) Act 2023 (Cth) s 76F.

18 Parliament of Australia (Cth), Bills Digest (Digest No 38 of 23-24, 5 December 2023).

19 The Guardian, ‘Labor’s ‘draconian’ immigration detention conditions challenged in high court’, (Web Page, 22 November 2023)

20 Ibid.

21 Migration Amendment (Bridging Visa Conditions) Act 2023 (Cth), s 76F (2).

22 Parliament of Australia (Cth), Bills Digest (Digest No 38 of 23-24, 5 December 2023).

23 Kristin Connell, ‘Consultation and Consideration Overlooked Again’, Law Council of Australia, (Web Page, 27 November 2023)

24 Migration Amendment (Removal and Other Measures) Bill 2024.

25 Amnesty International, ‘Submission to the Senate Legal and Constitutional Affairs Committee’, (Web Page, 11 April 2024) < https://www.amnesty.org.au/ migration-amendment-removal-and-other-measures-bill-2024/>.

•

including Article 2(1) (right of non-discrimination) 26 and Article 17 (protection against unlawful or arbitrary interference with home and family).27 McIntrye from the law council emphasised that, “If enacted, this discriminatory measure would represent a disturbing departure from Australia’s longstanding system of merit-based consideration”.28

New offence of non-compliance with a direction

Under the proposed Bill, failure to comply with the Minister's directions, such as completing

necessary paperwork, providing documentation and attending interviews could lead to a criminal offence. The criminal offence would be punishable with a minimum of 12 months imprisonment and a maximum of 5 years.29 This would disproportionately affect vulnerable individuals, especially those with non-English speaking or illiterate backgrounds. The Government appears to disregard the perspectives of numerous Australians and risks tarnishing the nation's international human rights standing.30

III EXAMINING AUSTRALIA'S NEGLECTFUL TREATMENT OF ASYLUM SEEKERS

Australia’s offshore processing costs reached upwards of A$1.49 billion in 2017-18.31 This figure is significantly more than it would cost to allow asylum seekers to reside in Australian communities.

Australia has violated many of its obligations under international law through the ratification of 1951 Convention relating to the Status of Refugees and its 1967 Protocol.32 The main elements of the policy that infringe upon the principle of non-refoulement highlighted by many international obligations, include:

the broad application to all arrivals, lacking individual screening for protection needs in proposed;

transferring asylum seekers to offshore processing centres with inadequate asylum centres, raising the risk of chain refoulement and constructive refoulement; and

Denying refugees access to durable solutions and family reunification, potentially forcing them to return to perilous situations to rescue at-risk family members.33

Proposed Amendments to Legislation: Ensuring Ethical Treatment of Asylum Seekers in Compliance with International Commitment

Some recommendations and proposed amendments to the legislation are:

1. Increasing funding: Providing adequate funding to provide asylum seekers with access to legal representation, this includes asylum interviews, administrative reviews, and court proceedings. This funding is crucial to help individuals affected by the new regime seek guidance on complying with the offences and asserting their rights to contest decisions.34

2. Shift from offshore processing to community processing: In order to sustain Australia’s International obligations, Australia should reconstruct the existing offshoring policy and instead provide community centres with adequate accommodation, healthcare, education and other essential services. There are significant fixed costs with keeping the offshore policy on foot regardless of the number of people kept offshore.35 Meaning that the government could drastically minimise their costs.

3. Eradication of mandatory detention: Arbitrary detention should only be used as a last resort and for the shortest appropriate time possible. Article 9 of the ICCPR36 provides for the right to liberty and security of person and prohibits arbitrary detention. Thus, s 189 of the Migration Act 1958 should be abolished in order to uphold Australia’s many international obligations.

4. Fast-track processing: The average processing time for permanent protection visas is 104 weeks, where only 34% of the applications were finalised.37 The government should establish clear time limits for visa processing, ensuring that applications are handled within a reasonable timeframe. This initiative aims to provide clarity and minimise uncertainty for asylum seekers.

5. Right to Work: Asylum seekers should be granted the right to work while their asylum claims are being processed, enabling them to support their families and contribute to the community, therefore promoting self-reliance and integration.

6. Strengthening Regional Cooperation: Australia should collaborate with neighbouring countries and partners to address root causes of displacement, improve asylum systems, and share responsibility for protecting refugees.

IV CONCLUSION

The inadequacies in Australia's asylum policy reveal regression, reminiscent of the White Australia policy. Recent punitive amendments highlight the need for comprehensive reform to uphold international obligations and prioritise asylum seekers' human rights. Systemic challenges, like ministerial discretion and discriminatory policies, demand immediate attention.

26 International Convention on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 2 (1).

27 Ibid, art 17.

28 Kristin Connell, ‘Removal Bill Must Not Be Passed by Australia, Law Council of Australia’, (Web Page, 15 April 2024) < https://lawcouncil.au/media/media-releases/removal-bill-must-not-be-passed-by-parliament>.

29 Human Rights Law Centre, ‘Explainer: Migration Amendment (Removal and Other Measures) Bill 2024’, (Web Page, 26 March 2024)

30 Kylea Tink, In The Media Statement On The Migration Amendment (Removal and Other Measures) Bill, (Web Page, 27 March 2024) < https://www.kyleatink.com. au/240327_deportation_bill>.

31 Madeline Gleeson and Natasha Yacoub, ‘Policy Brief-Cruel, Costly, and Ineffective: The Failure of Offshore Processing in Australia’ (2021) UNSW Kaldor Centre for International Refugee Law, 9-10.

32 Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954).

33 Ibid, 11-12.

34 Kristin Connell, ‘Consultation and Consideration Overlooked Again’, Law Council of Australia, (Web Page, 27 November 2023).

35 Ben Doherty, ‘Budget immigration costs: Australia will spend almost $3.4m for each person in offshore detention’, Guardian, (Web Page, 12 May 2021)

36 International Convention on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 9.

37 Refugee Council of Australia, ‘Statistics on People Seeking Asylum in the Community’, (Web Page, 17 April 2024) < https://www.refugeecouncil.org.au/asylum-community/>.