tag:theconversation.com,2011:/uk/topics/australian-law-2549/articlesAustralian law – The Conversation2024-02-15T02:32:37Ztag:theconversation.com,2011:article/2235462024-02-15T02:32:37Z2024-02-15T02:32:37ZThe government wants to criminalise doxing. It may not work to stamp out bad behaviour online<figure><img src="https://images.theconversation.com/files/575741/original/file-20240214-26-jtev2h.jpg?ixlib=rb-1.1.0&rect=19%2C9%2C6510%2C4337&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>This week, Prime Minister Anthony Albanese <a href="https://www.theguardian.com/australia-news/2024/feb/12/albanese-government-to-propose-legislation-to-crack-down-on-doxing">announced</a> the government was seeking to strengthen laws to combat doxing. Its ongoing review into Australian privacy law will now be expanded to include doxing, as will other laws covering hate crime and hate speech. </p>
<p>Doxing (sometimes doxxing) is shorthand for “document drop” and is the act of publishing identifying material about someone publicly, without their consent. </p>
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<p>Doxing someone can lead to real-life harms, potentially including job loss, violence against the person, their family members and pets, and serious mental health issues.</p>
<p>What any legislation from that review will look like is hard to say at this point. But how has it worked internationally, and would it work here?</p>
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Read more:
<a href="https://theconversation.com/doxing-or-in-the-public-interest-free-speech-cancelling-and-the-ethics-of-the-jewish-creatives-whatsapp-group-leak-223323">Doxing or in the public interest? Free speech, 'cancelling' and the ethics of the Jewish creatives' WhatsApp group leak</a>
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<h2>What are other countries doing?</h2>
<p>New laws around doxing came into effect in <a href="https://www.government.nl/latest/news/2023/07/12/use-of-personal-data-for-the-objective-of-harassment-to-become-criminal-offence">The Netherlands</a> at the start of the year. This makes it illegal for Dutch citizens to obtain and share other people’s personal information without their permission and then use it to harass or target them. </p>
<p>Dutch conspiracy theorist Huig Plug was <a href="https://nltimes.nl/2024/02/02/conspiracy-theorist-huig-plug-arrested-doxxing-prosecution-office-staffer">arrested</a> earlier this month under the new legislation for allegedly doxing a member of the public prosecutor’s staff.</p>
<p>In the United States, laws like this are state-based. <a href="https://www.simmrinlawgroup.com/california-penal-code-section-653-2/">California</a> has a special part of its law around so-called “indirect cyber harassment”, which is defined essentially as doxing. </p>
<p>In both of these examples, the doxer has to have intent to harm. They are posting the information because they want someone to, say, lose their job or be opened up to harassment. </p>
<p>The Dutch law goes slightly further in that it is also an offence to make someone’s job harder, as opposed to causing them to lose their job completely. The Dutch laws also carry harsher punishments for doxing people such police, lawyers and politicians. </p>
<p>From a legal perspective, showing intent to do someone harm can actually be a harder bar to pass than people might think. So, if Australian law follows this pattern, it could be difficult for plaintiffs to prove that being doxed has caused them genuine harm.</p>
<h2>Not a new problem</h2>
<p>Doxing isn’t a new phenomenon and there have been some high-profile doxing cases over the past few years. </p>
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Read more:
<a href="https://theconversation.com/what-is-doxing-and-how-can-you-protect-yourself-223428">What is doxing, and how can you protect yourself?</a>
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<p>One of the most famous global events was the <a href="https://www.theatlantic.com/technology/archive/2015/09/organizational-doxing-ashley-madison-hack/403900/">Ashley Madison</a> data breach in 2015, which resulted in <a href="https://www.theguardian.com/technology/2016/feb/28/what-happened-after-ashley-madison-was-hacked">job losses and suicides</a>. The current discussion, however, hinges around the <a href="https://www.theage.com.au/national/hundreds-of-jewish-creatives-have-names-details-taken-in-leak-published-online-20240208-p5f3if.html">sharing of information</a> from a private WhatsApp group of 600 people and in the context of the ongoing war in Gaza.</p>
<p>We’ve seen the hasty introduction of legislation in these types of circumstances in the past, most notably the Sharing of Abhorrent Violent Material Act, which legal scholars <a href="https://theconversation.com/livestreaming-terror-is-abhorrent-but-is-more-rushed-legislation-the-answer-114620">criticised</a> at the time for a lack of detail and it’s rushed introduction to parliament.</p>
<p>We saw similar concerns when the Morrison government introduced anti-trolling laws in 2021. I wrote at the time the law <a href="https://theconversation.com/the-governments-planned-anti-troll-laws-wont-help-most-victims-of-online-trolling-172743">wouldn’t help victims that much</a>, partly because it was practically impossible to police.</p>
<p>While the current discussion into changes in the law around doxing are happening, it’s worth revisiting some of these issues.</p>
<h2>How can we police the internet?</h2>
<p>The first thing to note is that it’s really hard to police what happens on the internet. There are several reasons for this.</p>
<p>The main one is that the internet is what we call inter-jurisdictional. There’s a mess of different laws around the world, and no real way to use them if you’re in a different country. This means if someone in The Netherlands doxes you in Australia, you can’t sue them under their laws, because you aren’t a citizen there. You also can’t do anything under Australia’s laws, because the perpetrator is not a citizen here. In short, to make this work, we would need global cooperation akin to Interpol.</p>
<p>The second reason is because Australian laws apply only to people currently in the country, there are many ways to get around them online. People can use anonymous accounts and virtual private networks (VPNs) to hide and make it hard to trace exactly who the culprit is and where they are.</p>
<p>The third comes down to the definition of what’s considered “public”. For example, a lot of doxing is done in smaller private groups with the express purpose of that community attacking specific people. That private information is still being shared without the consent or knowledge of the victims. In fact, as the journalist Ginger Gorman <a href="https://www.amazon.com.au/Troll-Hunting-Ginger-Gorman-ebook/dp/B07MC4C851">notes</a> this is the type of behaviour that “predatory trolls” often engage in.</p>
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Read more:
<a href="https://theconversation.com/trolling-and-doxxing-graduate-students-sharing-their-research-online-speak-out-about-hate-210874">Trolling and doxxing: Graduate students sharing their research online speak out about hate</a>
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<p>Finally, do we really need these laws when existing ones already cover many of the behaviours associated with doxing?</p>
<p>The biggest of these are found in the <a href="https://www.legislation.gov.au/C2004A04868/2022-11-10/text/2">federal criminal code</a>, a piece of legislation that deals with the use of telecommunications for crimes. It outlines the “use a carrier service” to threaten, harass or menace someone. This includes “hoax threats”. Penalties for these behaviours range from five to ten years in jail. There’s similar wording in the <a href="https://www.legislation.gov.au/C2021A00076/latest/text">Online Safety Act</a>.</p>
<p>While it’s great to see the government working to reform and strengthen existing legislation, I’m not convinced that these types of laws will have much impact given the complexity of policing online behaviours.</p><img src="https://counter.theconversation.com/content/223546/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jennifer Beckett receives funding from the Australian Research Council, through the Discovery grants scheme for work on online hostility in Australia. </span></em></p>Anthony Albanese has flagged a crack-down on people’s personal details being shared online without consent. But like so much of the internet, it’s hard to police.Jennifer Beckett, Lecturer in Media and Communications, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2217332024-01-24T01:03:52Z2024-01-24T01:03:52ZThe government has announced the scope of its sexual violence inquiry. Here’s what it gets right (and what it doesn’t)<p>This week, the government announced the start of its promised inquiry into justice responses to sexual violence. </p>
<p>The <a href="https://www.alrc.gov.au/inquiry/justice-responses-to-sexual-violence/">terms of reference</a> were developed from national <a href="https://www.ag.gov.au/crime/publications/outcomes-summary-national-roundtable-justice-responses-sexual-violence">discussions</a> last year. Federal, state and territory ministers took part, as well as victim-survivors and advocates. For many with experience and expertise in the area, the challenges highlighted were nothing new.</p>
<p>There has been a significant amount of time and energy poured into sexual violence law and policy reform in Australia since the 1970s, highlighting the <a href="https://www.aic.gov.au/sites/default/files/2020-07/rape-law-reform.pdf">persistent barriers</a> faced by victim-survivors in seeking criminal justice responses to sexual violence and harm. </p>
<p>It is, therefore, pleasing to see the Australian Law Reform Commission finally listening. However, we are cautious about what impact reforms like this will realistically have, given previous attempts have been <a href="https://link.springer.com/article/10.1007/s10691-022-09499-1">routinely undermined in practice</a>.</p>
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Read more:
<a href="https://theconversation.com/does-australia-need-dedicated-sexual-assault-courts-215708">Does Australia need dedicated sexual assault courts?</a>
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<h2>What do the terms of reference get right?</h2>
<p>As much as they sound highly procedural, terms of reference are important because they determine what can and cannot be investigated.</p>
<p>Two important features are a step in the right direction. One is the inclusion of a lived-experience Expert Advisory Group. The second is the explicit mention of a trauma-informed approach to victim-survivor and stakeholder engagement through <a href="https://www.alrc.gov.au/inquiry/justice-responses-to-sexual-violence">counselling services</a> to those who participate in the consultation process. </p>
<p>The inclusion of a such a group is now a staple of many law reform inquiries and government departments (like the <a href="https://www.vic.gov.au/victim-survivors-advisory-council">Victim Survivors’ Advisory Council</a> in Victoria) to collaborate on policy. While this is welcome, there are important things for the Australian Law Reform Commission to consider. </p>
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<p>Firstly, there are significant <a href="https://journals.sagepub.com/doi/abs/10.1177/10778012211024266?journalCode=vawa">personal and psychological risks</a> for victim-survivors who may contribute. The commission will need to ensure they’re supported. </p>
<p>Secondly, it is unclear how people will be selected to form the group. The commission needs to ensure the group is representative of diverse experiences and backgrounds. </p>
<p>Thirdly, power imbalances between survivors and the government can <a href="https://bristoluniversitypressdigital.com/view/journals/jgbv/7/3/article-p450.xml">undermine victim-survivors’ contributions</a> to reform efforts. The commission needs to consider how those with experience will be <a href="https://link.springer.com/article/10.1007/s10691-022-09499-1">adequately listened to</a>. </p>
<p>An important feature of the terms of reference is the focus on reforming the broader criminal legal system, not just laws. While <a href="https://www.abs.gov.au/statistics/people/crime-and-justice/sexual-violence/latest-release">more than 90%</a> of victim-survivors never report to police, for those who do, we need to minimise the likelihood of the system being <a href="https://link.springer.com/article/10.1023/A:1022847223135">encountered as a “second rape”</a>. </p>
<p>The commission’s focus on practices such as education for criminal justice personnel, access to a legal representative, and <a href="https://www.mdpi.com/2075-471X/9/4/31">reforms to procedures</a> and <a href="https://aifs.gov.au/research/research-reports/victimsurvivor-focused-justice-responses-and-reforms-criminal-court">laws of evidence</a> therefore has the potential to improve survivors’ <a href="https://www.tandfonline.com/doi/pdf/10.1080/13200968.2021.1930434">experiences of the system</a>. </p>
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Read more:
<a href="https://theconversation.com/male-soldiers-cant-help-themselves-is-among-many-rape-myths-that-need-debunking-212568">'Male soldiers can't help themselves' is among many rape myths that need debunking</a>
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<p>However, international <a href="https://apo.org.au/node/26507">research</a> indicates these measures may have limited impact or <a href="https://journals.sagepub.com/doi/10.1177/1748895819851848">unintended outcomes in practice</a>. Such initiatives would require close monitoring if introduced. </p>
<p>Likewise, having uniform legislative definitions of sexual violence across jurisdictions could help to ensure access to (formal) justice is not contingent on where you happen to live. However, getting harmony across states <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4478006#:%7E:text=We%20identify%20four%20main%20obstacles,historical%20failures%20and%20political%20disincentives">could prove challenging</a>. </p>
<p>It is also positive to see the commission adopt what’s called an <a href="https://www.jstor.org/stable/1229039">intersectional framework</a>. This approach recognises particular groups may be disproportionately impacted by sexual violence, and face unique or additional barriers to engaging with the criminal legal system. The needs of some groups, such as older women, are currently poorly responded to and require urgent attention. </p>
<h2>What are the limits of the inquiry?</h2>
<p>Many communities mentioned in the terms of reference are often unwilling or unable to engage with the formal legal system. It is unclear how the Australian Law Reform Commission intends to meaningfully engage with marginalised communities and ensure that these groups’ needs and perspectives are included.</p>
<p>For instance, an explicit role for Aboriginal and Torres Strait Islander victim-survivors and advocates is missing from the terms of reference outside of the consultation phase. A specific First Nations advisory group could boost engagement with the commission’s process so their perspectives could be better captured.</p>
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<a href="https://images.theconversation.com/files/571017/original/file-20240124-19-wb5nqn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A courtroom with the scales of justice in the wood of the judge's bench" src="https://images.theconversation.com/files/571017/original/file-20240124-19-wb5nqn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/571017/original/file-20240124-19-wb5nqn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/571017/original/file-20240124-19-wb5nqn.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/571017/original/file-20240124-19-wb5nqn.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/571017/original/file-20240124-19-wb5nqn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/571017/original/file-20240124-19-wb5nqn.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/571017/original/file-20240124-19-wb5nqn.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">The criminal justice system’s ability to deal with sexual violence cases is the subject of a new inquiry.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/balance-sign-court-room-1812892960">Shutterstock</a></span>
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<p>The terms also limit the scope for alternative justice to be explored. A law reform inquiry inherently centres the criminal legal system as the main way sexual violence is dealt with. However, we know victim-survivors have a <a href="https://journals.sagepub.com/doi/full/10.1177/0964663918761200">diverse range of justice needs</a>, some of which are difficult to meet in the traditional system. Some forms of sexual violence, such as public sexual harassment, are <a href="https://link.springer.com/article/10.1007/s10691-017-9350-3">challenging to respond to</a> using the law.</p>
<p>Some scholars and activists advocate for a <a href="https://journals.sagepub.com/doi/abs/10.1177/0269758020970414">shift away</a> from the criminal legal system. They argue the system is fundamentally harmful. We know, for example, sexual violence occurs within the system through practices like <a href="https://sistersinside.com.au/qhrc-review-into-strip-search-in-womens-prison/">strip searching</a>. It’s also perpetrated by criminal justice actors including <a href="https://www.theguardian.com/australia-news/2024/jan/18/high-ranking-victoria-police-officer-charged-with-three-counts-of-sexual-assault-alleged-to-have-occurred-while-on-duty?CMP=share_btn_tw">police officers</a>. </p>
<p>In addition, the terms of reference don’t include examining the persistent disbelief of victim-survivors by some within the criminal legal system.</p>
<h2>Watch this space…</h2>
<p>There is also the larger question about how the recommendations of the inquiry will be resourced and implemented in practice. While the commission appears to take a holistic approach, it remains to be seen whether this will have any bearing on future reforms to legislation, policy and practice. </p>
<p>The recent Victorian Law Reform Commission <a href="https://www.lawreform.vic.gov.au/project/improving-the-response-of-the-justice-system-to-sexual-offences/">inquiry on sexual offences </a> also included a focus on innovative justice responses. So far, more innovative recommendations have been sidelined by the government in favour of <a href="https://www.justice.vic.gov.au/victorias-new-sexual-offence-laws-an-introduction">legislative reform</a>. </p>
<p><a href="https://www.alrc.gov.au/wp-content/uploads/2019/08/final_report_133_amended1.pdf">Recent</a> Australian <a href="https://humanrights.gov.au/our-work/aboriginal-and-torres-strait-islander-social-justice/publications/wiyi-yani-u-thangani">inquiries</a> have called for alternatives to criminal legal responses for Indigenous women’s safety. Despite a <a href="https://www.womenstaskforce.qld.gov.au/__data/assets/pdf_file/0009/691218/wsjt-submission-dr-marlene-longbottom-and-dr-amanda-porter-university-of-wollongong-and-university-of-melbourne.pdf">strong evidence base</a> for community-controlled, restorative solutions, there has been little action on these recommendations to date. </p>
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Read more:
<a href="https://theconversation.com/a-royal-commission-wont-help-the-abuse-of-aboriginal-kids-indigenous-led-solutions-will-216526">A royal commission won't help the abuse of Aboriginal kids. Indigenous-led solutions will</a>
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<p>While the outcomes of the inquiry are outside the immediate control of the commission, it does raise concerns about the merits of continuing to tinker with a broken system. Despite many decades of law reform in jurisdictions such as Victoria, <a href="https://www.crimestatistics.vic.gov.au/research-and-evaluation/publications/attrition-of-sexual-offence-incidents-through-the-victorian#:%7E:text=Attrition%20was%20highest%20during%20the,of%20those%20offenders%20they%20identified">reporting rates</a> remain low and attrition rates remain high. </p>
<p>Given the limits of criminal legal reform, we need to think bigger and more boldly. The inquiry is a good start, but for a comprehensive solution, we will need to be willing to question the role of a criminal justice system that has so far failed victim-survivors.</p><img src="https://counter.theconversation.com/content/221733/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Rachel Loney-Howes receives funding from the Commonwealth Government Attorney-General's Department, the Victorian Government, and, previously, the Australian Institute of Criminology for research on alternative reporting options for survivors of sexual violence. </span></em></p><p class="fine-print"><em><span>Bianca Fileborn receives funding from the Australian Research Council to undertake research on justice responses to sexual violence.</span></em></p>The inquiry into justice responses to sexual violence is taking a holistic approach, which is a welcome step in the right direction. But there’s still elements missing from the terms of reference.Rachel Loney-Howes, Senior Lecturer in Criminology, University of WollongongBianca Fileborn, Senior Lecturer in Criminology, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2174402023-12-14T19:19:29Z2023-12-14T19:19:29ZO Christmas tree, O Christmas tree … what are my rights this season, legally?<figure><img src="https://images.theconversation.com/files/564744/original/file-20231211-15-56yql9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>If you were, just for example, a slightly portly, older gent in a red and white suit who soon plans to travel around the globe delivering presents, assisted only by reindeer and a touch of magic, what legal issues might you encounter?</p>
<p>While Santa may not need to lawyer up ahead of his big night, his journey does raise several interesting legal issues that have implications beyond the Christmas season – and there’s some lessons for the rest of us, too.</p>
<h2>Can Santa fly freely around the world in his sleigh?</h2>
<p>The <a href="https://www.icao.int/publications/pages/doc7300.aspx">Convention on International Civil Aviation</a> sets out the standards required for global air travel. Santa is not bound by these rules because he’s not a sovereign state, but he faces problems anyway. </p>
<p>For starters, he travels at an estimated <a href="https://www.labmate-online.com/news/news-and-views/5/breaking-news/how-fast-does-santa-travel/32594">10,703,437 km/h</a> – significantly faster than the <a href="https://epicflightacademy.com/flight-school-faq/how-fast-do-commercial-planes-fly/#:%7E:text=The%20average%20cruising%20airspeed%20for,Still%20have%20questions%3F">average 860 km/h</a> of commercial flights. </p>
<p>This speed is contrary to the convention, which directs “safe and orderly” civil aviation. It also requires Santa to seek permission to fly over the territory of another state, unless it’s an emergency. It is unlikely Santa falls within the emergency exception, however, as his flight is always scheduled for December 24. </p>
<p>Finally, Santa must submit his sleigh and cargo for inspection when landing if requested by the authorities. Alas! Santa does not allow peremptory peeking into his sack of gifts.</p>
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Read more:
<a href="https://theconversation.com/avoid-a-bum-steer-this-summer-heres-what-australian-law-says-about-public-nudity-107525">Avoid a bum steer this summer: here's what Australian law says about public nudity</a>
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<h2>Santa has a camera on his sleigh to assist with landings. Does this raise legal problems?</h2>
<p>The law says that you own your land and sky only to a depth and height for your reasonable enjoyment. </p>
<p>If Santa, hovering above your house with a camera, is disturbing your right to enjoy your property, the law may give you a remedy in what is known as the tort of nuisance or the tort of breach of confidence.</p>
<p>However, the intrusion has to be persistent and annoying, and if it’s only occurring on Christmas Eve, and if Santa is welcomed, it’s unlikely a magistrate would order him to stop. </p>
<p>If Santa is filming, you cannot, generally speaking, complain about any breach of privacy. True, there are some legislative remedies against such filming found in the <a href="https://legislation.nsw.gov.au/view/html/inforce/current/act-1900-040#pt.3-div.15B">NSW Crimes Act</a>, the <a href="http://www5.austlii.edu.au/au/legis/qld/consol_act/cc189994/s227a.html#:%7E:text=(ii)%20is%20engaging%20in%20a,commits%20a%20misdemeanour.&text=Maximum%20penalty%E2%80%943%20years%20imprisonment">Qld Criminal Code</a>, and the <a href="http://www5.austlii.edu.au/au/legis/sa/consol_act/soa1953189/s26b.html">SA Summary Offences Act</a>, but usually only if he’s filming for what might be considered voyeuristic purposes, and not for simply guiding the sleigh onto your roof.</p>
<h2>A Christmas dinner guest has a few drinks and starts to espouse views you find offensive. Can you eject them from your home?</h2>
<p>Laws protecting people from offensive, humiliating or vilifying speech generally only apply to public spaces, <a href="https://humanrights.gov.au/our-work/complaint-information-service/information-people-making-complaints">such as workplaces</a>. </p>
<p>But if you are hosting a party in your own home, you have the right to ask a guest to leave at any time, including if you don’t like their jokes. If they stay without your consent, then they are trespassing, and you can call the police to help you <a href="https://lawhandbook.sa.gov.au/ch12s06s04s15.php">remove them</a>. </p>
<p>Unwanted guests who use offensive language or refuse to obey directions from police can then face <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/sa/consol_act/soa1953189/s17a.html">criminal penalties</a>. And while calling the police definitely sounds like a party stopper, you should remember that, as a host, you owe <a href="https://research.bond.edu.au/en/publications/duty-of-care-under-the-civil-liability-acts">a duty of care</a> to the other guests to take reasonable steps to ensure they are not exposed to foreseeable risks of harm.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/564746/original/file-20231211-26-yuy1hi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/564746/original/file-20231211-26-yuy1hi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/564746/original/file-20231211-26-yuy1hi.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/564746/original/file-20231211-26-yuy1hi.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/564746/original/file-20231211-26-yuy1hi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/564746/original/file-20231211-26-yuy1hi.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/564746/original/file-20231211-26-yuy1hi.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">You are entitled to ask someone to leave your home if you wish.</span>
<span class="attribution"><span class="source">Shutterstock</span></span>
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</figure>
<h2>As Santa leaves your property, he is injured by a tripwire designed to deter trespassers that you installed. Can he sue?</h2>
<p>Occupiers of land owe a duty of care to any person entering their land to ensure they will not be injured by virtue of the <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1987/7.html">state of the premises</a>. </p>
<p>At common law, Santa can sue you and seek compensation. The court hearing the case would consider factors such as the circumstances in which Santa became exposed to the danger, his ability to appreciate the danger, the extent to which you ought to have been aware that Santa was arriving, and whether it was appropriate to eliminate or warn Santa against the danger. </p>
<p>But in some jurisdictions, for example in South Australia, an occupier does not owe a duty of care to a trespasser. There is an exception: a duty is owed if the presence of that trespasser was <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/sa/consol_act/cla1936161/s20.html">reasonably foreseeable</a>. Santa is trespassing, yes, but you are expecting him, so his arrival is reasonably foreseeable. That being the case, you are likely to be liable for his injuries.</p>
<h2>Wealthy Uncle Harry is choking on his Christmas pudding, and near death. Knowing he has left you a large inheritance, can you refrain from assisting him?</h2>
<p>The answer depends on the relationship between you and Uncle Harry. Under the criminal law of Australia, there is no general duty to assist a choking person, <a href="https://en.wikipedia.org/wiki/Duty_to_rescue">unlike in some other countries</a>. </p>
<p>But a duty may arise if you are Harry’s carer, or if you are a medical practitioner. You may also attract a duty of care if you ushered the other guests out of the room, saying <a href="https://www.nswlr.com.au/preview/14-NSWLR-226">you would look after Harry</a>. </p>
<p>If Harry chokes to death and you did have a duty to intervene, you may be found guilty of manslaughter. On conviction, you can wave goodbye to the inheritance. <a href="https://lr.law.qut.edu.au/article/download/47/46/47-1-94-1-10-20120615.pdf">The forfeiture rule </a>states that you cannot inherit from a person whom you have unlawfully killed.</p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/you-can-say-you-wish-king-charles-would-die-but-you-cant-urinate-on-your-back-tyre-8-common-myths-about-australian-law-196663">You can say you wish King Charles would die, but you can't urinate on your back tyre: 8 common myths about Australian law</a>
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<h2>Your beloved dumps you after Christmas. Can you get those expensive gifts back?</h2>
<p>No. In law, effective transfer of goods occurs when the giver delivers possession of an item with the <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2003/121.html?context=1;query=nolan;mask_path=au/cases/vic/VSC">intention to give away</a> that item. So handing over a wrapped gift with the words, “this is for you” would be sufficient to transfer ownership. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/563859/original/file-20231206-25-5dfu85.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/563859/original/file-20231206-25-5dfu85.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/563859/original/file-20231206-25-5dfu85.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/563859/original/file-20231206-25-5dfu85.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/563859/original/file-20231206-25-5dfu85.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/563859/original/file-20231206-25-5dfu85.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/563859/original/file-20231206-25-5dfu85.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Once you give those Christmas gifts, it’s highly unlikely you’ll get them back.</span>
<span class="attribution"><span class="source">Shutterstock</span></span>
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<p>In a marriage or de facto relationship, the news might be slightly better for the giver. The Family Law Act allows a court to divide all property of the parties when a relationship breaks down, and little regard is paid to who actually owns what. Instead, the court will consider the contributions each has made to the relationship, and <a href="http://classic.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s79.html">each party’s future needs</a>. It is possible that, in a “just and equitable” settlement, you’d end up with the gifted items back in your hands. But don’t hold your breath.</p><img src="https://counter.theconversation.com/content/217440/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Rick Sarre has previously received funding from the Australian Research Council.</span></em></p><p class="fine-print"><em><span>Sarah Moulds is currently the Director of the Rights Resource Network SA.</span></em></p><p class="fine-print"><em><span>Ben Livings, Juliette McIntyre, Lisa Cooper, and Michelle Fernando do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Christmas season brings joy to many, but it can also raise some legal issues. Our team of experts examine a few.Rick Sarre, Emeritus Professor of Law and Criminal Justice, University of South AustraliaBen Livings, Associate Professor of Criminal Law and Evidence, University of South AustraliaJuliette McIntyre, Lecturer in Law, University of South AustraliaLisa Cooper, Lecturer in Law, University of South AustraliaMichelle Fernando, Senior Lecturer in Law, University of South AustraliaSarah Moulds, Senior Lecturer of Law, University of South AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2025162023-04-25T20:01:27Z2023-04-25T20:01:27ZIf ChatGPT wrote it, who owns the copyright? It depends on where you live, but in Australia it’s complicated<figure><img src="https://images.theconversation.com/files/520967/original/file-20230414-24-jxr5zk.jpg?ixlib=rb-1.1.0&rect=329%2C285%2C3928%2C2660&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Prathankarnpap/Shutterstock</span></span></figcaption></figure><p><a href="https://openai.com/blog/chatgpt">ChatGPT</a> and other generative AI tools which draw on large language models (LLMs) are a hot topic. Released in November 2022 by OpenAI, ChatGPT is a chatbot – it generates text output refined through user prompts. </p>
<p>What makes it special is just how <a href="https://theconversation.com/we-pitted-chatgpt-against-tools-for-detecting-ai-written-text-and-the-results-are-troubling-199774">sophisticated and impressive that output is</a>. The stratospheric rise of generative AI tools has sparked much discussion over what it might mean for the future of <a href="https://theconversation.com/chatgpt-is-the-push-higher-education-needs-to-rethink-assessment-200314">education</a>, the <a href="https://theconversation.com/ai-could-take-your-job-but-it-can-also-help-you-score-a-new-one-with-these-simple-tips-199883">job market</a>, <a href="https://theconversation.com/has-gpt-4-really-passed-the-startling-threshold-of-human-level-artificial-intelligence-well-it-depends-202856">humanity</a> and <a href="https://theconversation.com/i-used-to-work-at-google-and-now-im-an-ai-researcher-heres-why-slowing-down-ai-development-is-wise-202944">society as a whole</a>. </p>
<p>By now, you’ve likely interacted with a generative AI. But who owns copyright to the output, and how does copyright law apply?</p>
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<strong>
Read more:
<a href="https://theconversation.com/calls-to-regulate-ai-are-growing-louder-but-how-exactly-do-you-regulate-a-technology-like-this-203050">Calls to regulate AI are growing louder. But how exactly do you regulate a technology like this?</a>
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<h2>Text output and the law</h2>
<p>ChatGPT is powered by an LLM – a machine-learning algorithm which processes vast datasets, including text, websites, news articles and books. Through the use of billions of parameters, ChatGPT <a href="https://www.zdnet.com/article/how-does-chatgpt-work/">statistically analyses complex language structures and patterns</a> to produce the output.</p>
<p>Some people might think OpenAI – the company responsible for ChatGPT – would have an authorship right in any output (the generated text), but this is not so. <a href="https://openai.com/policies/terms-of-use">OpenAI’s terms</a> assign the right, title and interest in output to a user. Anyone who uses such AI tools needs to know the copyright implications of generating output. </p>
<p>Putting aside ethical and moral issues regarding <a href="https://www.theguardian.com/australia-news/2023/jan/10/universities-to-return-to-pen-and-paper-exams-after-students-caught-using-ai-to-write-essays">academic integrity</a>, there are many copyright implications surrounding LLMs.</p>
<p>For example, when you use ChatGPT to produce output, under Australian law, would you own the copyright of that output? Can AI such as ChatGPT be considered a legal joint author of any LLM output? Do LLMs infringe others’ copyright through the use of data used to train these models?</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/no-the-lensa-ai-app-technically-isnt-stealing-artists-work-but-it-will-majorly-shake-up-the-art-world-196480">No, the Lensa AI app technically isn’t stealing artists' work – but it will majorly shake up the art world</a>
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<h2>Do you own your ChatGPT output?</h2>
<p>Under Australian law, because the output is computer-generated code/text, it may be classified as a literary work for copyright purposes.</p>
<p>However, for you to own copyright in ChatGPT output as a literary work, requirements known as “subsistence criteria” must also be satisfied. When considering AI processes in light of the subsistence criteria, the analysis becomes challenging.</p>
<p>The most contentious subsistence criteria in the context of LLMs are those of authorship and originality. Seminal Australian cases dictate a literary work must originate through an author’s “<a href="https://www.mondaq.com/australia/intellectual-property/290668/can-a-database-be-protected-by-copyright">independent intellectual effort</a>”.</p>
<p>To determine potential copyright in ChatGPT output, a court would examine the underlying processes of creation in detail. Hypothetically, when considering how LLMs learn, although people prompt AI, a court would likely deem this prompting to be a separate, precursory act to the actual creation of the output. The court would likely find the output is produced by the AI. This would not meet the criteria for authorship, because the output was authored by an AI instead of a human.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/520988/original/file-20230414-18-s56de3.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A screenshot of a user interacting with ChatGPT and asking to write a poem in the style of Robert Burns" src="https://images.theconversation.com/files/520988/original/file-20230414-18-s56de3.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/520988/original/file-20230414-18-s56de3.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=698&fit=crop&dpr=1 600w, https://images.theconversation.com/files/520988/original/file-20230414-18-s56de3.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=698&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/520988/original/file-20230414-18-s56de3.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=698&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/520988/original/file-20230414-18-s56de3.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=877&fit=crop&dpr=1 754w, https://images.theconversation.com/files/520988/original/file-20230414-18-s56de3.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=877&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/520988/original/file-20230414-18-s56de3.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=877&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">ChatGPT 3.5 claims that a machine-generated work is not subject to copyright protection.</span>
<span class="attribution"><span class="source">The Conversation</span></span>
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<p>Also, the output is unlikely to adequately express a person’s “independent intellectual effort” (another subsistence criterion) because AI produces it. Such a finding would be similar to the ruling in a seminal case about a <a href="https://www.claytonutz.com/knowledge/2010/december/computer-generated-compilations-not-protected-by-copyright-says-full-federal-court">computer-generated compilation</a>. There, a valuable Telstra database was not protected by copyright due to lack of establishment of human authorship and originality.</p>
<p>For these reasons, it’s likely copyright would not come into effect on ChatGPT output as a literary work produced in Australia.</p>
<p>Meanwhile, under UK law, the result could be different. This is because UK law makes provision for a person <a href="https://www.legislation.gov.uk/ukpga/1988/48/section/9">who makes the arrangements for a computer-generated literary work</a> to be considered an author for copyright purposes. </p>
<h2>Can you be a joint author with ChatGPT?</h2>
<p>In recent years, human authorship has been challenged in court a few times overseas, including the <a href="https://www.wipo.int/wipo_magazine/en/2018/01/article_0007.html">famous monkey selfie case in the United States</a>.</p>
<p>In Australia, a work must originate with a human author, so AI doesn’t qualify for authorship. However, if AI were ever to achieve something akin <a href="https://theconversation.com/a-google-software-engineer-believes-an-ai-has-become-sentient-if-hes-right-how-would-we-know-185024">to its own version of sentience</a>, AI personhood debates will unleash many issues, including whether AI should be considered an author for copyright purposes.</p>
<p>Assuming one day AI can be considered an author, if a court was assessing joint authorship between a person and AI, each author’s contribution would be examined in detail. A “<a href="http://www5.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s10.html">work of joint authorship</a>” states that each author’s contribution must not be separate from the other. It’s likely that a person’s prompting of the AI would be deemed separate to what the AI system then does, so joint authorship would probably fail.</p>
<h2>Do LLMs infringe on copyright?</h2>
<p>A final issue is whether LLMs infringe others’ copyright through accessing data in training. Such data may be copyright-protected material. This requires an examination of the LLM training and output. Is a substantial portion of copyright-protected material reproduced? Or, is mass data synthesised without substantial reproduction?</p>
<p>If it is the earlier option, infringement may have occurred; if it’s the latter, there would be no infringement under current law. But even if output reproduces a portion of copyright-protected material, this might fall under a copyright exception. In Australia, this is called fair dealing.</p>
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Read more:
<a href="https://theconversation.com/explainer-what-is-fair-dealing-and-when-can-you-copy-without-permission-80745">Explainer: what is 'fair dealing' and when can you copy without permission?</a>
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<p>Fair dealing permits particular purposes, such as research and study. In the US, similar fair use exceptions are broader in scope, so LLM output may be caught by this. Also, the European Union has a <a href="https://academic.oup.com/grurint/article/71/8/685/6650009">copyright exception for text and data mining</a> which permits the use of data to train LLMs unless expressly prohibited by a rights-holder. </p>
<p>Seeing as AI is here to stay, a final point to ponder is whether amendments should be made to the Australian <a href="https://www.legislation.gov.au/Details/C2022C00192">Copyright Act</a> to allow an AI user to be considered an author for copyright purposes. Should we amend the law by following in the United Kingdom’s footsteps, or implement a text and data mining exception similar to that in the EU?</p>
<p>As AI initiatives continue advancing, Australian copyright law will likely grapple with these issues in the coming years.</p><img src="https://counter.theconversation.com/content/202516/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Wellett Potter does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Do you own a literary work that ChatGPT helped you write? Does OpenAI? The legal questions are thorny, and the answers unclear.Wellett Potter, Lecturer in Law, University of New EnglandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2013722023-03-23T00:13:02Z2023-03-23T00:13:02ZThe referendum rules have been decided. What does this mean for the Voice?<p>On Wednesday night, the Senate passed a bill to amend Australia’s referendum machinery laws, ending a long and sometimes tense debate on the rules that will govern the Voice referendum later this year.</p>
<p>Until this week it looked like we would embark on our first referendum since 1999 without broad consensus on the ground rules. Thankfully, the government and opposition reached agreement and the bill passed easily. The House of Representatives is expected to approve it very soon.</p>
<p>The machinery changes range across public education, campaigning and voting. Many of the changes make welcome improvements to our outdated referendum laws.</p>
<p>But there is also a sense of missed opportunity as some well-known problems were left unaddressed.</p>
<p>So, what changes were made and what are the implications for the Voice referendum?</p>
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<h2>Setting the ground rules</h2>
<p>Questions about referendum machinery – that is, the rules on how a national vote on constitutional change is conducted – often take a back seat to debate about the question on the ballot paper. But getting the machinery right is crucial to ensuring that a referendum is fair, transparent and informed.</p>
<p>The <a href="https://www.aph.gov.au/Parliamentary_Business/Bills_LEGislation/Bills_Search_Results/Result?bId=r6965">Referendum (Machinery Provisions) Amendment Bill 2022</a> was <a href="https://theconversation.com/the-government-wants-to-change-australias-referendum-laws-how-will-this-affect-the-voice-to-parliament-195632">introduced</a> in December and passed the House of Representatives earlier this month. Its purpose is to modernise the nation’s referendum rules and bring them into line with election laws.</p>
<p>The bill deals with many technical procedural matters alongside a small number of more contentious topics. One surprise was the government’s decision to <a href="https://theconversation.com/the-government-will-not-send-out-yes-and-no-case-pamphlets-ahead-of-the-voice-to-parliament-referendum-does-this-matter-195806">suspend</a> the usual practice of sending an official pamphlet to each household.</p>
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Read more:
<a href="https://theconversation.com/the-government-will-not-send-out-yes-and-no-case-pamphlets-ahead-of-the-voice-to-parliament-referendum-does-this-matter-195806">The government will not send out Yes and No case pamphlets ahead of the Voice to Parliament referendum. Does this matter?</a>
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<p>In January, the parliament’s electoral committee <a href="https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Electoral_Matters/ReferendumMachineryBill/Report/section?id=committees%2freportjnt%2f025030%2f80558">reviewed</a> the bill and heard from a wide range of stakeholders. </p>
<p>The committee <a href="https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Electoral_Matters/ReferendumMachineryBill/Report/section?id=committees%2freportjnt%2f025030%2f80558">recommended</a> measures be adopted to ensure voters have access to “clear, factual and impartial information”. It also supported amendments to foster enfranchisement and participation, particularly among Indigenous peoples.</p>
<p>The opposition, from the outset, supported most aspects of the bill. But it pledged to vote against it unless the government agreed to reinstate the official pamphlet, and establish and fund official “Yes” and “No” campaign bodies.</p>
<p>Until this week, it looked like the government would need the votes of the Greens and the crossbench to pass the bill. Senators Larissa Waters, David Pocock, Lidia Thorpe and Pauline Hanson proposed <a href="https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r6965">numerous amendments</a>, including measures to strengthen financial disclosure.</p>
<p>In the end, the major parties brokered a deal that saw the government reinstate the pamphlet and the opposition drop two of its three demands.</p>
<p>The bill ultimately puts in place a set of rules and processes that, in many respects, resemble those used at past referendums.</p>
<h2>Educating voters about the Voice</h2>
<p>One of the biggest challenges ahead of a referendum is ensuring voters have the information they need to cast an informed vote.</p>
<p>The bill agreed to in the Senate provides for two channels of official information: the pamphlet and a neutral civics education campaign.</p>
<p>The official pamphlet is a mainstay of Australian referendums, having featured at almost all referendums since it was introduced in 1912. The bill retains the design that has been in place for over a century. Later this year, we will all receive in the post a printed booklet that contains “Yes” and “No” arguments, authorised by MPs, of 2,000 words each, and a copy of the proposed amendments to the Constitution.</p>
<p>While the government’s initial scrapping of the pamphlet was unexpected, it is hard to get excited about its reinstatement. If history is any guide, the pamphlet’s educational value will be minimal and could even be counter-productive. The authors of the “Yes” and “No” cases are free to exaggerate, mislead, fearmonger and dog-whistle. There will be no basic factual statement about the referendum proposal.</p>
<p>Thorpe moved for the Australian Human Rights Commission to write the “Yes” and “No” arguments, while Pocock argued that an independent panel should vet the pamphlet for accuracy and hateful content. In the House, independent Zali Steggall pushed for a broader law on truth in political advertising. None of these suggestions were taken up.</p>
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<p>More promising is the neutral civics education campaign. It is 24 years since our last referendum and we all need a civics refresher. In the coming months we can expect the government to circulate basic information on the Constitution, Australia’s system of government and the referendum process. The Howard government ran a similar initiative in 1999 ahead of the republic referendum.</p>
<p>The bill makes clear that government spending on civics education will be lawful provided that it doesn’t “address the arguments for or against a proposed law for the alteration of the Constitution”. This is sensible and is aimed at ensuring that the civics education campaign stays neutral on the Voice proposal.</p>
<p>What we don’t know is who will develop the educational materials and what form they will take. It is crucial that the people involved are trusted by both sides and that the information they produce is clear, factual and relevant to voters. It would be good to hear more detail from the government on this.</p>
<h2>The ‘Yes’ and ‘No’ campaigns won’t receive public funding</h2>
<p>The bill passed by the Senate makes no provision for the establishment and funding of official “Yes” and “No” campaign organisations. This is in line with ordinary referendum practice in Australia, with 1999 being the lone exception.</p>
<p>The opposition had argued that creating official campaign groups would make it easier to enforce rules on financial disclosure. But the Australian Electoral Commission has a lot of experience in educating and overseeing multiple campaigners and should be able to manage a complex campaign environment.</p>
<p>The opposition also called for some public funding to support the campaigns. However, both the “Yes” and “No” sides are fundraising large amounts of money, so adding taxpayer dollars on top of that was arguably unnecessary.</p>
<h2>Shining a light on campaign money</h2>
<p>The bill makes some long-overdue changes to the rules on referendum campaign finance. Campaigners will be required to publicly report donations and expenditure that exceed A$15,200. This is consistent with ordinary election requirements.</p>
<p>This change improves transparency but falls well short of best practice. The disclosure threshold is way too high and this means some large donations will remain anonymous.</p>
<p>Moreover, Australians will not learn who gave money to the Yes and No campaigns until 24 weeks after the date of the referendum. This is information that people should have <em>before</em> they enter the polling booth and cast their vote.</p>
<p>Both the Greens and Pocock moved amendments for tougher disclosure rules, but they were defeated.</p>
<h2>An advertising blackout period</h2>
<p>The bill bans referendum advertisements on radio and television in the final three days of the campaign. The same rule applies at elections. Pocock unsuccessfully sought to extend the blackout period to social media.</p>
<h2>Maximising enrolment and voting</h2>
<p>One concern ahead of the Voice referendum is ensuring that measures are in place to support electoral participation, especially among First Nations people.</p>
<p>Last October, the government <a href="https://www.sbs.com.au/nitv/the-point/article/budget-2022-first-nations-people-to-get-funding-boosts-for-health-justice/bhg0zq0e6">committed</a> $16 million to assist Indigenous enrolment in advance of the vote. The bill takes a further step by extending the period available for remote mobile polling from 12 days to 19 days. This will allow more time for the Australian Electoral Commission to visit hard-to-access places across the country.</p>
<p>Both the Greens and Thorpe argued unsuccessfully for the adoption of on-the-day enrolment. This would have allowed new voters to cast a ballot on the day and have it included in the count once their eligibility to vote is confirmed.</p>
<p>It is a shame that on-the-day enrolment was not included in the final bill. It would have fostered referendum participation generally but been of particular benefit to First Nations people, given their disproportionately <a href="https://www.themandarin.com.au/207616-aec-adjusts-first-nations-peoples-enrolment-process-to-encourage-participation/">low enrolment rate</a>.</p>
<h2>A robust, if imperfect, referendum process</h2>
<p>The eve of a referendum is the worst possible time to negotiate amendments to the rules. Every proposed change is viewed through the lens of suspicion and self-interest.</p>
<p>It is therefore a huge relief that the government and opposition were able to reach bipartisan consensus on the referendum machinery changes. Australians can go to the Voice referendum confident that the rules in place make for a fair and robust process.</p>
<p>The debates in parliament nonetheless show there is room for improvement. A number of promising ideas on public education and campaign finance were not taken up and in some cases were barely debated.</p>
<p>The amendments passed this week are welcome but there remains a need for a in-depth review of our referendum laws, ideally conducted away from the heat of a looming vote.</p><img src="https://counter.theconversation.com/content/201372/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Paul Kildea has previously received funding from the Australian Research Council.</span></em></p>The bill that has passed through the Senate provides for a robust referendum, although there is still room for improvement.Paul Kildea, Associate Professor, Faculty of Law & Justice, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2010892023-03-13T23:20:40Z2023-03-13T23:20:40ZAs the states consider animal welfare law reform, what changes would curb cruelty against animals?<figure><img src="https://images.theconversation.com/files/514135/original/file-20230308-3276-3citli.jpg?ixlib=rb-1.1.0&rect=19%2C397%2C4262%2C2445&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>Mahatma Gandhi said:</p>
<blockquote>
<p>The greatness of a nation and its moral progress can be judged by the way its animals are treated.</p>
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<p>Yet we often hear of animals being treated poorly in Australia, and our laws are frequently criticised as a result. </p>
<p>In response, many states are reforming their animal welfare laws. </p>
<p>The South Australian government recently called for <a href="https://www.premier.sa.gov.au/media-releases/news-items/have-your-say-on-animal-welfare-laws">public feedback</a> on how animal welfare law works and how it could be improved. This follows recent similar calls in New South Wales, Queensland, Victoria and Western Australia. </p>
<p>These public consultation processes allow lawmakers to get a sense of the weight of concern about key issues. So, what are the key issues for debate, and how would changing them affect animals and society?</p>
<h2>Animal welfare laws in Australia</h2>
<p>We don’t have a national law to deal with animal welfare. This might seem seem strange. After all, animals are often transported across state boundaries, and having a single law throughout the country would create consistent practice, making it easier for our global trading partners to identify our animal husbandry practices (<a href="https://www.smh.com.au/world/europe/australia-s-backwards-animal-practices-still-in-the-way-of-free-trade-deal-with-britain-20230124-p5cex5.html">a current controversial issue</a>). </p>
<p>This federated system for animal welfare is a result of our Constitution. As a result, each state and territory has its own act. We’ll call these “animal welfare acts” even though the names differ between the states.</p>
<p>Broadly, these acts regulate human interactions with animals. They make it an offence to be cruel to an animal. </p>
<p>But the acts go further than this. They make animal owners responsible for promoting their animals’ wellbeing by ensuring they have access to food, water, good housing and other resources. These acts also outline any procedures that cannot be done on animals, such as tail docking of dogs. </p>
<p>But you won’t find the details of animal husbandry and care in the acts. For this, you’ll have to read the <a href="https://www.animalwelfarestandards.net.au">codes of practice or standards</a>. These documents, sometimes referred to as “soft law”, lay out what is acceptable husbandry practice. But they are harder to enforce as they have less legal weight. </p>
<p>It’s a complex system. And it’s important to remember that the current state reviews are focused on the acts. </p>
<h2>Animals included and their sentience</h2>
<p>A hotly debated reform topic is the definition of an <a href="https://www.mdpi.com/2076-2615/11/1/35">animal in law</a>. All states include mammals, reptiles, amphibians and birds, but fish and other aquatic animals such as crustaceans and cephalopods (octopuses and squid) might not be included. </p>
<p>Recently, the UK government <a href="https://www.abc.net.au/news/2021-12-16/the-uk-has-recognised-octopuses-crabs-and-lobsters-as-sentient-b/100698106">made news</a> when it recognised decapods (lobsters and crabs) and cephalopods as sentient. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/514342/original/file-20230308-24-62ri0e.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/514342/original/file-20230308-24-62ri0e.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=287&fit=crop&dpr=1 600w, https://images.theconversation.com/files/514342/original/file-20230308-24-62ri0e.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=287&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/514342/original/file-20230308-24-62ri0e.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=287&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/514342/original/file-20230308-24-62ri0e.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=360&fit=crop&dpr=1 754w, https://images.theconversation.com/files/514342/original/file-20230308-24-62ri0e.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=360&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/514342/original/file-20230308-24-62ri0e.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=360&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The UK government recently recognised decapods such as lobsters to be sentient creatures.</span>
<span class="attribution"><span class="source">Shutterstock</span></span>
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</figure>
<p>Recognition of animal sentience in law has been a big-ticket <a href="https://theconversation.com/acts-new-animal-sentience-law-recognises-an-animals-psychological-pain-and-pleasure-and-may-lead-to-better-protections-124577">reform item</a> both in Australia and internationally. Sentience describes the ability of animals to experience feelings such as pain or pleasure. Ascribing sentience to animals represents a big step forward, by acknowledging that animals are more than their current legal classification as property suggests. </p>
<p>So what would recognition of these animals as sentient mean for our seafood lunch or fishing trip up the coast? Well, these activities likely wouldn’t change much. </p>
<p>Our current laws provide protection to animals such as sheep and cattle. Yet we still farm them. The same would apply for these aquatic species. But their inclusion may provide a basis for future changes in practice – for example, the outlawing of boiling crabs alive. </p>
<p>But there is still debate within the legal community about what practical impact this change would have. Because of the codes of practice, farming practices will remain unchanged. It is likely the biggest impact will be on how courts apply the law to animal cruelty cases. </p>
<p>Still, its inclusion is important messaging, and would allow states to showcase a commitment to animal welfare, with minimal actual change to the status quo. </p>
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Read more:
<a href="https://theconversation.com/acts-new-animal-sentience-law-recognises-an-animals-psychological-pain-and-pleasure-and-may-lead-to-better-protections-124577">ACT's new animal sentience law recognises an animal's psychological pain and pleasure, and may lead to better protections</a>
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<h2>Community expectations around penalties</h2>
<p>Cruelty to animals evokes strong emotions among our nation of <a href="https://theconversation.com/penalties-for-animal-cruelty-double-in-sa-but-is-this-enough-to-stop-animal-abuse-108021">animal lovers</a>. There is similar outrage when perpetrators of these offences receive what is seen as lenient sentencing. </p>
<p>Governments have responded to these “community expectations” by increasing maximum penalties for offences in the animal welfare acts. This sends a message to the community and the courts that animal welfare is a serious issue. It also hopefully acts as a deterrent to potential offenders. </p>
<p>However, changes in law do not always lead to changes in sentencing by the courts. In any case, there may be better ways to reduce this kind of offending, such as education programs or penalties, like counselling, that support offenders to get help. </p>
<p>We may be seeing a shift in the tide of community opinion around this issue. <a href="https://www.frontiersin.org/articles/10.3389/fanim.2022.991042/full">Recent research</a> showed Australians appear more supportive of the use of alternative penalties than previously suggested, and more willing to trust judges’ sentencing decisions. Nevertheless, support for increasing harshness of sentences is still strong. </p>
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Read more:
<a href="https://theconversation.com/penalties-for-animal-cruelty-double-in-sa-but-is-this-enough-to-stop-animal-abuse-108021">Penalties for animal cruelty double in SA, but is this enough to stop animal abuse?</a>
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<h2>Limitations of animal welfare law</h2>
<p>It is easy to criticise the law when animal welfare issues arise. But the law is a blunt instrument. Law relies on effective and well-resourced enforcement for its success. </p>
<p>Written law also only provides a minimum benchmark. It does not (and has never been proclaimed to) represent best practice in animal care. This can be better achieved through use of assurance or accreditation schemes, which producers can sign up to. </p>
<p>The power of consumers should not be discounted either. By choosing to buy only products that meet high welfare standards, we can move industry direction far more quickly than legal change is able.</p><img src="https://counter.theconversation.com/content/201089/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Alexandra Whittaker does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Several states are considering animal welfare law reform, with much interest around the issue of sentience. Here are some changes that would make a real difference to animals’ lives.Alexandra Whittaker, Senior Lecturer, School of Animal and Veterinary Science, University of AdelaideLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1932282023-01-04T19:22:25Z2023-01-04T19:22:25ZHigh, Supreme, Federal, Family, County – what do all our different courts actually do?<p>One way to understand how the courts in Australia are ranked is to imagine a pyramid and an umbrella. </p>
<p>Let’s start with the pyramid. Imagine three lines horizontally across the pyramid dividing it into four sections. Each section represents a court of each state or territory.</p>
<p>So what’s on the base of the pyramid, and what are the upper layers?</p>
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<em>
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Read more:
<a href="https://theconversation.com/a-constitutional-voice-to-parliament-ensuring-parliament-is-in-charge-not-the-courts-193017">A constitutional Voice to Parliament: ensuring parliament is in charge, not the courts</a>
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<h2>The Local or Magistrates Courts</h2>
<p>The bottom section represents the local or magistrates courts. It is biggest because it deals with the vast majority of court cases in Australia.</p>
<p>There is a single judicial officer presiding, and no jury. The bread and butter of these courts are minor crimes such as traffic offences, lesser assaults, shoplifting and possession of prohibited drugs. </p>
<p>These courts also have other roles including being children’s and coroners’ courts. They also deal with less serious civil disputes, where one person or company is suing another (under certain limits; in New South Wales, for example, that limit is A$100,000). </p>
<p>Local courts also deal with apprehended violence and restraining orders. The maximum sentence that can be handed out by a judge in a local court is generally two years imprisonment. </p>
<p>The other reason the bottom section of the pyramid is biggest is because all criminal matters start in the local court. The more serious ones work their way up to the higher courts for sentence or trial. </p>
<h2>The District Court</h2>
<p>The next section up the pyramid represents the District Court. </p>
<p>They deal with more serious crime such as sexual assault, major drug supply and high-level violence. </p>
<p>If the person on trial doesn’t plead guilty, there is a jury to determine guilt or innocence. </p>
<p>The district court also deals with serious civil disputes, generally where the amount is up to $750,000.</p>
<h2>The Supreme Court</h2>
<p>The Supreme Court is the next layer of the pyramid. It deals with the most serious civil and criminal cases, such as murder. They mostly have a jury in criminal cases.</p>
<p>They also deal with some specialty areas such as defamation.</p>
<h2>The Courts of Appeal</h2>
<p>Finally, there is the Courts of Appeal, which are part of the Supreme Court, but sit above it.</p>
<p>They hear appeals from lower courts, and there are usually three judges sitting on each matter. </p>
<p>The really interesting aspect of the pyramid is that it represents not just more seriousness and less volume as you go up, but also the appeal process.</p>
<p>So, if you want to appeal from the Local Court, then you go the District Court, then from the District to the Supreme Court and so on.</p>
<p>The “<a href="https://blogs.unimelb.edu.au/opinionsonhigh/2013/07/18/harding-precedent/">doctrine of precedent</a>” means rulings from higher courts are binding on lower ones. </p>
<h2>The High Court and the umbrella model</h2>
<p>But what if you want to appeal from the Court of Appeal? That’s where the umbrella comes in. </p>
<p>That appeal is to the High Court, which you can imagine as an umbrella that sits over each of the state or territory pyramids. </p>
<p>There is one High Court, based in Canberra, and its decisions are final, and binding throughout all parts of Australia. </p>
<p>Fun fact: up until the 1980s the highest court for Australia was in England! Called the Privy Council, it was possible to appeal from state and federal courts and let English law lords be the final decider. But Australia got rid of that system and now the highest court in the land is the High Court.</p>
<h2>Some state-based variations</h2>
<p>Is it all that simple? Not really.</p>
<p>First, in Tasmania the Australian Capital Territory and the Northern Territory there is no District Court level at all. These are small states and territories, with not enough people to necessitate this level of the pyramid.</p>
<p>Second, sometimes appeals jump a level. For example, they may go straight from the Local Court to the Supreme Court. And in some states, there are different names for each level. In Victoria the District Court is called the County Court, and in some places like the Northern Territory, magistrates are called judges. </p>
<p>Finally, there are some specialty courts like the NSW Land and Environment Court that sit at Supreme Court level. </p>
<h2>Hang on, what about federal courts?</h2>
<p>Just when you thought you had your pyramids in a row, along comes another complication: the federal system. </p>
<p>The Constitution divides up powers between the states and the Commonwealth.</p>
<p>The best example is family law, which is allocated to the Commonwealth and so the Federal Court system deals with divorce and related matters. </p>
<p>And so there is another pyramid which works across the whole country only this time it has two levels.</p>
<p>The lowest and biggest level is the <a href="https://www.fcfcoa.gov.au/">Federal Circuit and Family Court of Australia</a>, dealing mostly with family law (but also other federal matters such as immigration and welfare law).</p>
<p>The next level up is the Federal Court, which deals mainly with corporations law, bankruptcy and trade practices as well as hearing appeals from the lower court. </p>
<p>Don’t forget the umbrella, the High Court, which also hears appeals from the Federal Court. </p>
<h2>A whole myriad of tribunals</h2>
<p>I’m sorry to have to tell you it gets even more complex from there. There are also tribunals.</p>
<p>Sitting beneath the state, territory and federal court systems is a whole myriad of tribunals which deal with non-criminal matters. </p>
<p>New South Wales, for example, has the New South Wales Civil and Administrative Tribunal (NCAT), which deals with tenancy, consumer, guardianship, strata and licensing matters. It even has its own appeal panel as well (and if people still aren’t happy, they can then appeal to the courts).</p>
<p>The members of the tribunal are not judicial officers and are appointed for fixed periods. </p>
<p>Of course, if you were to strike out centuries of history and start afresh, you would likely just have one multilayered pyramid across the country with a single tribunal at the foot, and the High Court at the top.</p>
<p>We can live in hope. </p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/why-defamation-suits-in-australia-are-so-ubiquitous-and-difficult-to-defend-for-media-organisations-157143">Why defamation suits in Australia are so ubiquitous — and difficult to defend for media organisations</a>
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<img src="https://counter.theconversation.com/content/193228/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>David Heilpern does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>All criminal matters start in the local court. The more serious ones work their way up to the higher courts for sentence or trial.David Heilpern, Associate Professor and Chair of Discipline (Law), Southern Cross UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1966632022-12-25T20:42:04Z2022-12-25T20:42:04ZYou can say you wish King Charles would die, but you can’t urinate on your back tyre: 8 common myths about Australian law<p>We’ve all been at a work or family gathering when someone has offered a seemingly authoritative statement about the way the law operates.</p>
<p>Without some knowledge of the field of law, listeners may simply nod their heads sagely and tut-tut about the perceived inadequacies and injustices that have been revealed.</p>
<p>But there are many misconceptions about the law. Here are eight common falsehoods.</p>
<h2>1. If people laugh at my joke then it’s not sexual harassment</h2>
<p>This is not correct. Sexual harassment <a href="https://humanrights.gov.au/our-work/sexual-harassment-workplace-legal-definition-sexual-harassment">is defined</a> as any unwelcome sexual behaviour that makes a person feel offended or humiliated, where that reaction is reasonable in the circumstances.</p>
<p>A <a href="https://humanrights.gov.au/time-for-respect-2022">survey by the Australian Human Rights Commission</a> found over the past five years, one in three workers experienced sexual harassment in their workplace. The survey found reporting of workplace sexual harassment remains alarmingly low, at only 18%.</p>
<p>Women (41%) were far more likely than men (26%) to experience harassment. More than three-quarters of harassers <a href="https://humanrights.gov.au/about/news/media-releases/time-respect-one-third-workers-say-they-have-experienced-sexual">were men</a>.</p>
<p>In November, the federal parliament passed the Respect@Work bill which creates a positive duty on all employers to implement measures to prevent sexual harassment.</p>
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<h2>2. I don’t have to give my name and address to police, as I have a right to silence</h2>
<p>The right to remain silent when questioned by police is a fundamental protection provided by the common law. However, this right is <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1991/34.html">not absolute</a>, and does not mean you don’t have to give them certain personal information. </p>
<p>Legislation in every Australian jurisdiction gives police the right to ask for details that will assist their enquiries. For example, <a href="https://lawhandbook.sa.gov.au/ch03s01s01s01.php">in South Australia</a>, you must provide your full name, date of birth and address if a police officer has reasonable cause to suspect you have committed or are about to commit an offence, or if you may be able to assist in the investigation of an offence.</p>
<p>It’s an offence to refuse to give police your personal details, or if you provide <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/sa/consol_act/soa1953189/s74a.html">false or misleading information</a>. Police can also ask you to <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/sa/consol_act/soa1953189/s74ab.html">identify drivers</a> of motor vehicles in which you’re travelling. But they can’t demand that you answer any further questions, and must give you a caution that anything you might say may be later used in evidence.</p>
<p>Where there has been a violent arrest, or the arrested person is unable to appreciate or understand their rights, the caution must be repeated once the arrested person has settled down or sobered up.</p>
<h2>3. My boyfriend moved in with me a year ago and left last week, so now I have to give him half of my assets</h2>
<p>For a person in a de facto relationship to be successful in any property settlement, they must satisfy the Family Court that:</p>
<ul>
<li><p>the relationship has lasted at least two years</p></li>
<li><p>or the parties have had a child together</p></li>
<li><p>or the relationship was registered under a state or territory relationship registration scheme</p></li>
<li><p>or one party has made substantial financial or non-financial contributions to the other party and that serious injustice would result <a href="https://search.informit.org/doi/abs/10.3316/agispt.20220120060588">if an order were not made</a>.</p></li>
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<p>Also, there’s no presumption of a 50:50 split in Australian family law. In determining a just and equitable division of property, the court will consider the parties’ respective assets, the contributions each party has made to the relationship, and each party’s future needs.</p>
<h2>4. I’m not responsible for things others write on my Facebook</h2>
<p>While it may be hard to believe, you may still be liable for things others post on your social posts, even if you don’t know about them.</p>
<p>In 2021 <a href="https://eresources.hcourt.gov.au/downloadPdf/2021/HCA/27">the High Court ruled</a> that media companies could be liable for <a href="https://theconversation.com/craig-mclachlan-defamation-and-getting-the-balance-right-when-sexual-harassment-goes-to-court-91223">defamatory comments</a> made by readers on their <a href="https://theconversation.com/high-court-rules-media-are-liable-for-facebook-comments-on-their-stories-heres-what-that-means-for-your-favourite-facebook-pages-167435">Facebook posts</a>. The ruling extends beyond Facebook and likely applies to any social media platform including Instagram, TikTok, Twitter and LinkedIn.</p>
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Read more:
<a href="https://theconversation.com/high-court-rules-media-are-liable-for-facebook-comments-on-their-stories-heres-what-that-means-for-your-favourite-facebook-pages-167435">High Court rules media are liable for Facebook comments on their stories. Here's what that means for your favourite Facebook pages</a>
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<p>It also extends beyond media companies and covers businesses and private individuals, including those running online community groups and forums, such as administrators of <a href="https://www.theguardian.com/law/2021/oct/29/lawyers-use-voller-defamation-case-to-demand-facebook-group-admins-remove-posts">Facebook groups</a>.</p>
<p>But watch this space – state and territory attorneys-general have just given <a href="https://ministers.ag.gov.au/media-centre/standing-council-attorneys-general-communique-09-12-2022">in-principle agreement</a> to amend defamation laws to protect “internet intermediaries” such as social media administrators. The details are yet to emerge but are not likely to defend egregious comments that should have been noticed and removed by a person posting on their own social media platforms.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/502031/original/file-20221220-26-x7dzft.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Hand holding a phone with Facebook open" src="https://images.theconversation.com/files/502031/original/file-20221220-26-x7dzft.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/502031/original/file-20221220-26-x7dzft.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/502031/original/file-20221220-26-x7dzft.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/502031/original/file-20221220-26-x7dzft.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/502031/original/file-20221220-26-x7dzft.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/502031/original/file-20221220-26-x7dzft.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/502031/original/file-20221220-26-x7dzft.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Under current case law, you’re responsible for what others write on your social media posts.</span>
<span class="attribution"><span class="source">Shutterstock</span></span>
</figcaption>
</figure>
<h2>5. I can leave my kids in the car for a few minutes so long as I leave a window open</h2>
<p>This is not true. While every jurisdiction in Australia <a href="https://legislation.nsw.gov.au/view/html/inforce/current/act-1998-157#sec.231">has slightly different laws</a>, it’s generally <a href="https://www.abc.net.au/news/2017-11-14/can-you-leave-your-child-in-the-car-while-you-pay-for-fuel/9144304">an offence</a> to leave a child unattended in a car regardless of whether they suffer any distress or injury.</p>
<p>Any police attention, and charges that may flow from that, will depend on the circumstances of the alleged neglect, including the ambient temperature, the extent of child distress (if any), and the proximity of the driver including the time taken for them to, for example, pay for fuel.</p>
<p>Opening a car window <a href="https://raisingchildren.net.au/toddlers/safety/car-pedestrian-safety/never-leave-children-in-cars">does not negate</a> criminal charges.</p>
<h2>6. I can urinate in public if it’s on my back tyre</h2>
<p>If this was once the law with horses and drays, it is no longer the law today. Any such displays in public (especially in a built up area) can amount to “<a href="https://www.criminaldefencelawyers.com.au/blog/is-urinating-in-public-a-crime/?utm_source=mondaq&utm_medium=syndication&utm_term=Criminal-Law&utm_content=articleoriginal&utm_campaign=article">offensive behaviour</a>” and can be prosecuted. </p>
<p>However it’s entirely contextual. For example, marathon runners who receive urgent calls from Mother Nature would be unlikely to be prosecuted.</p>
<h2>7. Saying you wish Charles would cark it so William can be king is treason</h2>
<p>The offence of treason still exists, but one must do more than declare disparaging (or even treacherous) thoughts about the reigning monarch to excite the authorities into prosecuting. </p>
<p>The Commonwealth <a href="http://www5.austlii.edu.au/au/legis/cth/consol_act/cca1995115/sch1.html">Criminal Code section 80.1</a> sets out what amounts to treasonous behaviour. You really have to be serious about acting on your declarations before the treason threshold is reached.</p>
<h2>8. Australian consulates overseas are Australian territory</h2>
<p>This is a common misconception. Article 31 of the <a href="https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=III-6&chapter=3">Vienna Convention on Consular Relations</a> provides some protection to consular premises from outside intrusion. </p>
<p>This includes a rule that the police of the host state can’t enter consular premises without the consulate country’s permission, unless it’s an emergency. But this doesn’t turn the consulate into Australian territory.</p><img src="https://counter.theconversation.com/content/196663/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Rick Sarre is an office bearer in the Dunstan sub-branch of the SA Labor party.</span></em></p><p class="fine-print"><em><span>Sarah Moulds receives occasional funding from the Law Foundation of South Australia Australia. She is the Director of the volunteer-based Rights Resource Network of South Australia and a member of the Law Society of South Australia. </span></em></p><p class="fine-print"><em><span>Juliette McIntyre, Lisa Cooper, and Michelle Fernando do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>We’ve all been at a work or family gathering when someone has offered a seemingly authoritative statement about the way the law operates. Without some knowledge of the field of law, listeners may simply…Rick Sarre, Emeritus Professor of Law and Criminal Justice, University of South AustraliaJuliette McIntyre, Lecturer in Law, University of South AustraliaLisa Cooper, Lecturer in Law, University of South AustraliaMichelle Fernando, Senior Lecturer in Law, University of South AustraliaSarah Moulds, Senior Lecturer of Law, University of South AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1962192022-12-09T01:02:35Z2022-12-09T01:02:35ZDoes Australia need new laws to combat right-wing extremism?<figure><img src="https://images.theconversation.com/files/499895/original/file-20221208-13117-t8ib8t.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Lukas Coch/AAP</span></span></figcaption></figure><p>At the <a href="https://www.youtube.com/watch?v=EH2IUKaWXKw">National Press Club</a> this week, Home Affairs Minister Clare O’Neil flagged that Labor would propose <a href="https://www.theguardian.com/australia-news/2022/dec/08/clare-oneill-warns-counter-terror-laws-may-need-to-change-to-better-handle-rightwing-extremism">changes to Australia’s counter-terrorism laws</a>. She cited an increase in diverse threats beyond religious fundamentalism, a trend towards lone-actor, low-sophistication attacks, and more <a href="https://www.aspistrategist.org.au/asio-chief-flags-alarming-increase-in-children-lured-to-extremism/">younger people being radicalised</a>. </p>
<p>Specifically, she referred to the threat of right-wing extremism, which in 2021 was <a href="https://www.canberratimes.com.au/story/7269257/ideologically-motivated-terror-now-taking-up-half-of-asio-work/">approaching 50% of ASIO’s caseload</a>. She did not suggest the laws will be “<a href="https://www.theguardian.com/australia-news/2022/dec/08/clare-oneill-warns-counter-terror-laws-may-need-to-change-to-better-handle-rightwing-extremism">overhauled</a>”. </p>
<p>However, O'Neil hinted that changes to criminal law could target specific ways that extreme right-wing groups organise themselves compared to groups such as al-Qaeda or Islamic State.</p>
<p>Since the September 11 terrorist attacks, Australia has enacted at least 96 counter-terrorism laws, amounting to <a href="https://law.unimelb.edu.au/__data/assets/pdf_file/0009/4287735/02-Hardy-and-Williams-34.pdf">more than 5,500 pages of legislation</a>. So do we need any more laws, or changes to existing laws, to combat right-wing terrorism?</p>
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<h2>Australia’s counter-terrorism laws</h2>
<p>Australia has the <a href="https://theconversation.com/before-9-11-australia-had-no-counter-terrorism-laws-now-we-have-92-but-are-we-safer-166273">largest collection of counter-terrorism laws</a> in the world. This reflects a strong belief in legality: that powers and offences should be written into the statute books and not be left to arbitrary executive power. But it also shows how readily Australian governments have responded to evolving threats with ever-increasing powers.</p>
<p>Our counter-terrorism laws contain countless criminal offences and powers of surveillance, interrogation and detention. As an example, a <a href="https://theconversation.com/control-orders-for-kids-wont-make-us-any-safer-49074">control order</a> can require a child as young as 14 to obey a curfew and wear an electronic monitoring bracelet to protect the public from a terrorist act or prevent support for terrorism.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/before-9-11-australia-had-no-counter-terrorism-laws-now-we-have-92-but-are-we-safer-166273">Before 9/11, Australia had no counter-terrorism laws, now we have 92 — but are we safer?</a>
</strong>
</em>
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<p>Most of the offences and powers rely on a broad statutory definition of terrorism. A “terrorist act” means harmful conduct or a threat that aims to: (1) advance a political, religious or ideological cause; and (2) intimidate a government or section of the public.</p>
<p>Importantly, this definition is ideologically neutral – as are all the laws. They do not mention Islamist or right-wing terrorism. </p>
<p>The laws apply equally to these and other terror threats, no matter the ideology. A white supremacist who prepares or commits a terrorist act faces life imprisonment in the same way as a religious fundamentalist.</p>
<h2>What changes might be made?</h2>
<p>We won’t know the details of Labor’s proposed changes until next year. </p>
<p>The government might ask parliament to tweak the definition of a “terrorist organisation” in Division 102 of the federal <a href="http://www5.austlii.edu.au/au/legis/cth/consol_act/cca1995115/sch1.html">Criminal Code</a>. A terrorist organisation is one that is directly or indirectly preparing a terrorist act (or that advocates a terrorist act). </p>
<p>Various offences stem from this definition. It is a crime, for example, to recruit for a terrorist organisation or be a member of one.</p>
<p>The Australian government maintains a <a href="https://www.nationalsecurity.gov.au/what-australia-is-doing/terrorist-organisations/listed-terrorist-organisations">list of proscribed (banned) terrorist organisations</a>. Of the 29 currently listed, only three adhere to far-right ideology. </p>
<p>This reflects a longer history of Islamist terrorism, though Australia has also <a href="https://www.themandarin.com.au/176216-australia-catching-up-with-proscription-of-far-right-groups/">lagged our closest allies</a> in banning right-wing extremist groups.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/its-almost-like-grooming-how-anti-vaxxers-conspiracy-theorists-and-the-far-right-came-together-over-covid-168383">'It's almost like grooming': how anti-vaxxers, conspiracy theorists, and the far-right came together over COVID</a>
</strong>
</em>
</p>
<hr>
<p>Some features of these groups can make banning them difficult. Their membership structures, ideological demands and support for violence can be less clear compared to groups like al-Qaeda and Islamic State, which have committed and encouraged terrorist acts all around the world. </p>
<p>Right-wing extremist groups <a href="https://www.theguardian.com/australia-news/2019/jan/05/far-right-and-anti-racism-groups-face-off-in-melbourne-flashpoint">hold divisive rallies</a>, <a href="https://www.smh.com.au/national/the-far-right-are-capable-recruiters-and-have-found-fertile-ground-thanks-to-covid-20210921-p58tn7.html">exploit protests</a>, spread racist sentiment and encourage hatred against minorities – but most of these acts do not constitute terrorism. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/499898/original/file-20221209-22726-p3m533.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/499898/original/file-20221209-22726-p3m533.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=424&fit=crop&dpr=1 600w, https://images.theconversation.com/files/499898/original/file-20221209-22726-p3m533.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=424&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/499898/original/file-20221209-22726-p3m533.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=424&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/499898/original/file-20221209-22726-p3m533.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=533&fit=crop&dpr=1 754w, https://images.theconversation.com/files/499898/original/file-20221209-22726-p3m533.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=533&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/499898/original/file-20221209-22726-p3m533.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=533&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Far-right groups hold rallies and inflame racism, but most of these acts do not constitute terrorism.</span>
<span class="attribution"><span class="source">David Crosling/AAP</span></span>
</figcaption>
</figure>
<p>Expanding the definition of a terrorist organisation could capture right-wing extremist groups that are dangerous to society but do not obviously engage in or support terrorist acts. </p>
<p>Another possibility is that Labor could seek to ban Nazi and other hate symbols that such groups commonly use. New legislation in Victoria, which comes into force at the end of this month, makes it an <a href="https://content.legislation.vic.gov.au/sites/default/files/2022-06/591323bs1.pdf">offence</a> punishable by 12 months’ imprisonment to publicly display the Nazi swastika (Hakenkreuz).</p>
<p>The state offence will not apply to the <a href="https://www.adl.org/resources/hate-symbols/search">hundreds of hate symbols used by right-wing extremists</a>, but it sends an important message that neo-Nazi ideology holds no place in Australian society. It provides a legal mechanism to counter threats of right-wing extremism in a way that the federal counter-terrorism laws currently do not. </p>
<h2>Are changes needed?</h2>
<p>Australia’s counter-terrorism laws are already extensive and apply to all types of terrorism, so no obvious strategic gaps need to be filled. If a criminal offence or power is needed to combat terrorism, Australia already has it and more.</p>
<p>Minor changes to Division 102 could target specific features of right-wing extremism compared to Islamist terrorism. Federal laws could supplement emerging state laws by outlawing hateful symbols used by right-wing extremists and other terrorist groups.</p>
<p>However, <a href="https://www.abc.net.au/news/2021-03-28/banned-neo-nazi-groups-set-sights-on-australia/100030072">more right-wing groups</a> could be proscribed under the laws as they currently stand. Decisive action to ban internationally recognised right-wing extremist groups, combined with a national inquiry into hate crime law and its <a href="https://tacklinghate.org/blogs/new-research-defining-and-identifying-hate-motives-bias-indicators-for-the-australian-context/">reporting</a>, would send a strong message. Australia’s extensive counter-terrorism laws need not be further expanded.</p><img src="https://counter.theconversation.com/content/196219/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Keiran Hardy does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Australia already has extensive counter-terrorism laws and does not need more. However, the government could more specifically target far-right groups in its list of proscribed organisations.Keiran Hardy, Senior Lecturer, School of Criminology and Criminal Justice, Griffith UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1890432022-08-22T20:01:44Z2022-08-22T20:01:44ZAustralians are tired of lies in political advertising. Here’s how it can be fixed<figure><img src="https://images.theconversation.com/files/480310/original/file-20220822-53525-brd1um.png?ixlib=rb-1.1.0&rect=35%2C0%2C3898%2C1994&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">United Australia Party, Liberal Party, Australian Labor Party, Advance Australia Party</span></span></figcaption></figure><p>Our voting choices are only authentic if our decisions are informed by truthful information. That condition is now increasingly elusive. </p>
<p>In Australia, over two-thirds of adult news consumers <a href="https://www.accc.gov.au/focus-areas/inquiries-finalised/digital-platforms-inquiry-0/accc-commissioned-research/accc-commissioned-research">report</a> having seen media items they considered to be deceptive. This includes misleading commentary, doctored photographs and serious factual errors. </p>
<p>Political disinformation damages democracies. First, it manipulates voter preferences and distorts election results. This could be seen, for example, in the <a href="https://www.nature.com/articles/s41467-018-07761-2">2016 US presidential election</a> and the <a href="https://link.springer.com/book/10.1007/978-3-030-69503-3">Brexit referendum</a> that same year.</p>
<p>It also <a href="https://www.tandfonline.com/doi/full/10.1080/10584609.2019.1686095">polarises the electorate</a>, damages trust in government and democratic institutions, and triggers civic withdrawal. </p>
<p>A further harm is that it raises the costs of voting. Electoral legitimacy requires that the costs of participation are not too high; false claims cause information costs to escalate because much more work is required to sift the facts from the false information. </p>
<p>A new and corrosive form of disinformation is political conspiracies of the “stolen elections” variety. This type delegitimises election processes, generates doubt about the authenticity of the declared result and undermines the authority of the electoral victor, who may subsequently experience problems in governing. </p>
<p>It can even lead to serious social conflict such as the storming of the US Capitol in January 2021. </p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/three-reasons-why-disinformation-is-so-pervasive-and-what-we-can-do-about-it-188457">Three reasons why disinformation is so pervasive and what we can do about it</a>
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<h2>A global problem</h2>
<p>Election conspiracies also happen in Australia. During the 2022 federal election, the Australian Electoral Commission <a href="https://www.theguardian.com/australia-news/2022/apr/17/aec-alarmed-at-dangerous-voter-claims-spreading-before-australian-election?CMP=oth_b-aplnews_d-3">sought to counter</a> a “dangerous” disinformation campaign waged by minor party candidates baselessly predicting a high degree of electoral fraud and interference with the results. </p>
<p>Examples of such baseless claims included: </p>
<ul>
<li><p>the AEC is “aligned to the Liberal Party”</p></li>
<li><p>Australians who are not vaccinated will not be able to vote</p></li>
<li><p>blank ballots and “donkey votes” are counted for the incumbent. </p></li>
</ul>
<p>The media landscape and its political economy have eroded both the media’s willingness to supply “truth” in political discourse, and the consumer’s demand for it. </p>
<p>Social media have decreased barriers to entry into the information marketplace. Meanwhile, many consumers seek out information that confirms their existing prejudices. In some countries there is now a lucrative market in the <a href="https://www.proquest.com/docview/2475761564">production of “fake news”</a> solely to meet consumer demand. </p>
<p>To make matters worse, the ability of consumers <a href="https://spia.princeton.edu/news/overconfidence-news-judgment-associated-false-news-susceptibility">to distinguish</a> between authentic and fake news is much lower than they realise.</p>
<p>So, there are perverse – and arguably ineradicable – incentives within the information market to produce disinformation. The market is not just failing; it is the source of the problem. </p>
<p>This means disinformation has become what is known as a “collective action problem”. This happens when the actions of market actors create social costs that require state action to clean up or prevent.</p>
<p>Notably, 84% of Australians <a href="https://australiainstitute.org.au/report/we-can-handle-the-truth-opportunities-for-truth-in-political-advertising/">agree</a> on this need and would like to see truth in political advertising laws in place. </p>
<p>But this is easier said than done. What if, for example, votes and entire elections really are being stolen? We must ensure solutions do not do more harm than good, inadvertently obstructing the free flow of reliable information that is the lifeblood of any democracy. </p>
<p>In <a href="https://link.springer.com/book/10.1007/978-981-19-2123-0">our recent book</a>, Max Douglass, Ravi Baltutis and I explore how this might be achieved federally. We propose a cautious approach that draws lessons from laws that have operated successfully in South Australia since 1985.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/heres-how-disinformation-could-disrupt-the-australian-election-177629">Here's how disinformation could disrupt the Australian election</a>
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</em>
</p>
<hr>
<h2>7 ideas for reform</h2>
<ol>
<li><p>To avoid chilling political speech – and thereby violating the implied freedom of political communication under the Australian Constitution – truth in political advertising laws will only target identifiable political actors who are authors or authorisers of the material in question. Publishers are therefore exempt, for now at least. </p></li>
<li><p>Only false statements of fact (rather than opinion) will be subject to the law, as per the provisions under <a href="https://www.legislation.sa.gov.au/__legislation/lz/c/a/electoral%20act%201985/current/1985.77.auth.pdf">section 113</a> in SA.</p></li>
<li><p>To deter vexatious and trivial complaints, the legislation should be limited to false statements that could affect an election outcome to a “material extent”. </p></li>
<li><p>Laws should cover the entire period between elections, to take in preference allocations. </p></li>
<li><p>Penalties – which apply only to those who refuse to take down offending material – should be high enough to deter wrongdoing. However, because some political actors will cynically treat the penalty as a routine expense to gain a political advantage, we propose an additional penalty that bars the candidate from standing for one election cycle, as is the case under UK law. This is hardly controversial since section 386 of Australia’s Electoral Act 1918 already disqualifies those who have committed electoral offences such as bribery, undue influence, and interference with political liberty. </p></li>
<li><p>Regulators should be properly resourced.</p></li>
<li><p>Electoral candidates could be asked to sign a declaration that they have read and understood what the legislation requires of them. </p></li>
</ol>
<p>All of this is feasible, as the South Australian example has shown.</p><img src="https://counter.theconversation.com/content/189043/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Lisa Hill receives funding from the Australian Research Council. She is affiliated with the Centre for Public Integrity, an anti-corruption watchdog, and the Electoral Regulation Research Network. </span></em></p>Disinformation damages trust in government and undermines democracy. Our research shows there are ways to tackle it – with examples from Australia and abroad.Lisa Hill, Professor of Politics, University of AdelaideLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1876122022-07-27T02:41:14Z2022-07-27T02:41:14ZA robot breaks the finger of a 7-year-old: a lesson in the need for stronger regulation of artificial intelligence<figure><img src="https://images.theconversation.com/files/476181/original/file-20220727-15-6oaght.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>Disturbing footage emerged this week of a chess-playing <a href="https://www.theguardian.com/sport/2022/jul/24/chess-robot-grabs-and-breaks-finger-of-seven-year-old-opponent-moscow">robot breaking the finger</a> of a seven-year-old child during a tournament in Russia. </p>
<p>Public commentary on this event highlights some concern in the community about the increasing use of robots in our society. Some people joked on social media that the robot was a “sore loser” and had a “bad temper”. </p>
<p>Of course, robots cannot actually express real human characteristics such as anger (at least, not yet). But these comments do demonstrate increasing concern in the community about the “humanisation” of robots. Others noted that this was the beginning of a robot revolution – evoking images that many have of robots from popular films such as <a href="https://en.wikipedia.org/wiki/RoboCop">RoboCop</a> and <a href="https://en.wikipedia.org/wiki/The_Terminator">The Terminator</a>. </p>
<p>While these comments may have been made in jest and some images of robots in popular culture are exaggerated, they do highlight uncertainty about what our future with robots will look like. We should ask: are we ready to deal with the moral and legal complexities raised by human-robot interaction?</p>
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</figure>
<h2>Human and robot interaction</h2>
<p>Many of us have basic forms of artificial intelligence in our home. For instance, robotic vacuums are very popular items in houses across Australia, helping us with chores we would rather not do ourselves. </p>
<p>But as we increase our interaction with robots, we must consider the dangers and unknown elements in the development of this technology.</p>
<p>Examining the Russian chess incident, we might ask why the robot acted the way it did? The answer to this is that robots are designed to operate in situations of certainty. They do not deal well with unexpected events. </p>
<p>So in the case of the child with the broken finger, Russian chess officials <a href="https://www.theguardian.com/sport/2022/jul/24/chess-robot-grabs-and-breaks-finger-of-seven-year-old-opponent-moscow?CMP=twt_gu&utm_source=Twitter&utm_medium">stated</a> the incident occurred because the child “violated” safety rules by taking his turn too quickly. One explanation of the incident was that when the child moved quickly, the robot mistakenly interpreted the child’s finger as a chess piece. </p>
<p>Whatever the technical reason for the robot’s action, it demonstrates there are particular dangers in allowing robots to interact directly with humans. Human communication is complex and requires attention to voice and body language. Robots are not yet sophisticated enough to process those cues and act appropriately.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/researchers-trained-an-ai-model-to-think-like-a-baby-and-it-suddenly-excelled-186563">Researchers trained an AI model to 'think' like a baby, and it suddenly excelled</a>
</strong>
</em>
</p>
<hr>
<h2>What does the law say about robots?</h2>
<p>Despite the dangers of human-robot interaction demonstrated by the chess incident, these complexities have not yet been adequately considered in Australian law and policies. </p>
<p>One fundamental legal question is who is liable for the acts of a robot. Australian consumer law sets out robust requirements for <a href="https://consumer.gov.au/sites/consumer/files/2016/05/0553FT_ACL-guides_PSafety_web.pdf">product safety</a> for goods sold in Australia. These include provisions for safety standards, safety warning notices and manufacturer liability for product defects. Using these laws, the manufacturer of the robot in the chess incident would ordinarily be liable for the damage caused to the child. </p>
<p>However, there are no specific provisions in our product laws related to robots. This is problematic because Australian Consumer law provides a <a href="http://classic.austlii.edu.au/au/legis/cth/consol_act/caca2010265/sch2.html">defence</a> to liability. This could be used by manufacturers of robots to evade their legal responsibility, as it applies if </p>
<blockquote>
<p>the state of scientific or technical knowledge at the time when the goods were supplied by their manufacturer was not such as to enable that safety defect to be discovered. </p>
</blockquote>
<p>To put it simply, the robot manufacturer could argue that it was not aware of the safety defect and could not have been aware. It could also be argued that the consumer used the product in a way that was not intended. Therefore, I would argue more specific laws directly dealing with robots and other technology are needed in Australia.</p>
<p>Law reform bodies have done some work to guide our lawmakers in this area. For instance, the Australian Human Rights Commission handed down a landmark <a href="https://tech.humanrights.gov.au/downloads?_ga=2.235891713.1800283215.1658727725-389159131.1655440128">Human Rights and Technology Report</a> in 2021. The report recommended the Australian government establish an AI safety commissioner focused on promoting safety and protecting human rights in the development and use of AI in Australia. The government has not yet implemented this recommendation, but it would provide a way for robot manufacturers and suppliers to be held accountable.</p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/wXxrmussq4E?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
</figure>
<h2>Implications for the future</h2>
<p>The chess robot’s acts this week have demonstrated the need for greater legal regulation of artificial intelligence and robotics in Australia. This is particularly so because robots are increasingly being used in high-risk environments such as <a href="https://www.seniors.com.au/life-insurance/discover/robots-aged-care">aged care</a> and to assist people with a <a href="https://www.csiro.au/en/research/technology-space/ai/social-robots-support-children-with-autism">disability</a>. Sex robots are also available in Australia and are very human-like in appearance, raising ethical and legal concerns about the <a href="https://www.smh.com.au/technology/there-are-no-rules-the-unforeseen-consequences-of-sex-robots-20181024-p50bnx.html">unforeseen consequences</a> of their use.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/six-ways-robots-are-used-today-that-you-probably-didnt-know-about-82067">Six ways robots are used today that you probably didn't know about</a>
</strong>
</em>
</p>
<hr>
<p>Using robots clearly has some benefits for society – they can increase efficiency, fill staff shortages and undertake dangerous work on our behalf.</p>
<p>But this issue is complex and requires a complex response. While a robot breaking a child’s finger may be seen as a once-off, it should not be ignored. This event should cause our legal regulators to implement more sophisticated laws that directly deal with robots and AI.</p><img src="https://counter.theconversation.com/content/187612/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Maria O'Sullivan received funding in the past from the Commonwealth Attorney-General's Department as part of a research consultancy on automated decision-making. </span></em></p>Artificial intelligence is developing quickly, and Australian law needs to catch up.Maria O'Sullivan, Associate Professor, Faculty of Law, and Deputy Director, Castan Centre for Human Rights Law, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1824132022-05-05T05:24:53Z2022-05-05T05:24:53ZAbortion is no longer a crime in Australia. So why is it still so hard to access?<figure><img src="https://images.theconversation.com/files/461209/original/file-20220504-25-ltsf9h.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C1000%2C667&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/side-view-portrait-young-woman-wearing-1869302794">Shutterstock</a></span></figcaption></figure><p>A <a href="https://theconversation.com/us-supreme-court-poised-to-overturn-abortion-law-what-the-leaked-opinion-says-and-what-happens-next-182351">leak of draft court documents</a> reveals Roe v. Wade – which has broadly guaranteed abortion rights in the United States since 1973 – may be overturned. </p>
<p>The US decision may influence the <a href="https://theconversation.com/the-end-of-roe-v-wade-would-likely-embolden-global-anti-abortion-activists-and-politicians-182345">rhetoric and lobbying techniques</a> of anti-abortion activists globally but it has no direct bearing on Australia. </p>
<p>Nevertheless, it is a chance to highlight continued obstacles to abortion access in Australia.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/the-end-of-roe-v-wade-would-likely-embolden-global-anti-abortion-activists-and-politicians-182345">The end of Roe v. Wade would likely embolden global anti-abortion activists and politicians</a>
</strong>
</em>
</p>
<hr>
<p>Abortion is a common, essential health service. About <a href="https://www.mja.com.au/journal/2021/215/8/estimating-abortion-rate-australia-national-hospital-morbidity-and">88,800 people</a> have an abortion in Australia each year. Between <a href="https://www.sahealth.sa.gov.au/wps/wcm/connect/public+content/sa+health+internet/about+us/health+statistics/pregnancy+outcome+statistics">one quarter and one third</a> of women living in Australia will have an abortion in their lifetime. </p>
<p>The <a href="https://onlinelibrary.wiley.com/doi/pdf/10.1111/1753-6405.12997">vast majority</a> of Australians are <a href="https://law.adelaide.edu.au/system/files/media/documents/2019-12/Abortion%20Report%20281119.pdf">broadly “pro-choice”</a>.</p>
<h2>Abortion is not a crime, but legal issues remain</h2>
<p>In 2021, South Australia became the <a href="https://theconversation.com/abortion-is-no-longer-a-crime-in-australia-but-legal-hurdles-to-access-remain-156215">final jurisdiction</a> to decriminalise abortion. However, the <a href="https://indaily.com.au/news/2022/03/03/sa-abortion-law-reform-stalled-one-year-after-passing/">law has not commenced</a>. Until then, the state’s abortion providers and patients remain subject to <a href="https://www.abc.net.au/news/2022-03-04/sa-abortion-access-delays-year-after-reforms-pass/100883906">old, criminalising legislation</a>. So the state government must enact the new law immediately. </p>
<p><a href="https://www.mediastatements.wa.gov.au/Pages/McGowan/2021/08/Safe-Access-Zones-passes-WA-Parliament.aspx">Western Australia</a> became the last jurisdiction to introduce “buffer zone” legislation, which prevents the harassment of pregnant people outside places that provide abortions. In WA, <a href="https://www.parliament.wa.gov.au/parliament/bills.nsf/43EBDD658FC50BA14825663400102F5D/$File/Act15.pdf">criminal law continues to regulate</a> medical doctors who provide abortions. </p>
<p>All jurisdictions <a href="https://theconversation.com/abortion-is-no-longer-a-crime-in-australia-but-legal-hurdles-to-access-remain-156215">prohibit unqualified people</a> from performing abortions. This is unnecessary legislation that seeks to regulate “backyard abortions”, which no longer exist, and prevents the full integration of abortion into health law (which already ensures medical procedures are performed by qualified professionals).</p>
<p>For the most part, however, abortion in Australia is now regulated under health law rather than criminal law. While new health laws correctly frame abortion as a matter of health, these health laws continue to impede access to it. </p>
<p>This is due to the continued <a href="https://theconversation.com/abortion-is-no-longer-a-crime-in-australia-but-legal-hurdles-to-access-remain-156215">over-regulation of abortion</a> through measures including:</p>
<ul>
<li><p>gestational limits to abortion (in all state/territories except the Australian Capital Territory)</p></li>
<li><p>requirements for doctors provide patients with information about counselling services (WA, NSW, SA).</p></li>
</ul>
<p>Over-regulation is a direct result of, and exacerbates, abortion stigma, which treats abortion as more risky than it is in practice. </p>
<p>All medical procedures <a href="https://journals.sagepub.com/doi/full/10.1177/1037969X20986636">are already tightly regulated</a> by government (state and federal health law), institutions (for instance, hospital policies) and professional bodies (for instance, doctors’ codes of ethics).</p>
<p>Removing the stand-alone abortion legislation that exists in all states/territories would treat abortion like all other health procedures and decrease abortion stigma.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/abortion-is-no-longer-a-crime-in-australia-but-legal-hurdles-to-access-remain-156215">Abortion is no longer a crime in Australia. But legal hurdles to access remain</a>
</strong>
</em>
</p>
<hr>
<h2>Who has access? How about the cost?</h2>
<p>People in SA and the Northern Territory can access abortion in the public system. Vulnerable people in <a href="https://pubgeomapping.1800myoptions.org.au/#!/">Victoria</a> and <a href="https://www.health.tas.gov.au/health-topics/sexual-and-reproductive-health/reproductive-health/terminating-ending-pregnancy">Tasmania</a> also have public access. </p>
<p>However, <a href="https://onlinelibrary.wiley.com/doi/full/10.1111/1753-6405.12641">abortions are costly</a> for others because they are largely performed in private clinics rather than in the public system.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1462912057875959808"}"></div></p>
<p>There are few abortion providers in rural and regional Australia. Currently, only <a href="https://www.mshealth.com.au/wp-content/uploads/MS-Health-July-2021-Update-1.pdf">about 10% of GPs</a> are registered to prescribe mifepristone, sometimes known as RU486, for <a href="https://theconversation.com/early-medical-abortion-is-legal-across-australia-but-rural-women-often-dont-have-access-to-it-125300">medical abortion</a>. This figure <a href="https://www.mariestopes.org.au/your-choices/nurse-abortion-care/">falls to less than 1%</a> in <a href="https://www.mshealth.com.au/wp-content/uploads/MS-Health-July-2021-Update-1.pdf">some regional, remote and rural areas</a>.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/early-medical-abortion-is-legal-across-australia-but-rural-women-often-dont-have-access-to-it-125300">Early medical abortion is legal across Australia but rural women often don't have access to it</a>
</strong>
</em>
</p>
<hr>
<h2>We can learn from Tasmania</h2>
<p>Since Tasmania’s last private abortion clinic <a href="https://www.abc.net.au/news/2018-01-13/tasmanias-only-abortion-clinic-closes/9325194">closed in 2018</a>, abortion provision in the state has been <a href="https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahUKEwjN1ZHOhcX3AhVj63MBHfLCAEE4ChAWegQIJRAB&url=https%3A%2F%2Fwww.canberratimes.com.au%2Fstory%2F7383954%2Fthese-women-are-facing-limited-or-no-access-to-surgical-abortions%2F%3Fcs%3D9676&usg=AOvVaw1Z3jsspakwpwVHnpkAu09K">dire</a>. Last year, the government took action, <a href="https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahUKEwjEk8ym_cT3AhUD4zgGHW5dBWwQFnoECCgQAQ&url=https%3A%2F%2Fwww.examiner.com.au%2Fstory%2F7403213%2Fsurgical-abortions-to-be-more-widely-available%2F&usg=AOvVaw1-5MuNN2B6CZQK3LFbgxhR">expecting</a> that, by October 2021, select public hospitals (together, covering the entire state) would provide abortions. </p>
<p>Surgical abortions are now performed at <a href="https://www.health.tas.gov.au/health-topics/sexual-and-reproductive-health/reproductive-health/terminating-ending-pregnancy">three public hospitals</a> in the state. <a href="https://www.health.tas.gov.au/sites/default/files/2021-12/Termination_of_Pregnancy_fact_sheet_DoHTasmania.pdf">Vulnerable women</a> are prioritised, indicating the service may not be universal.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/heres-why-there-should-be-no-gestational-limits-for-abortion-121500">Here's why there should be no gestational limits for abortion</a>
</strong>
</em>
</p>
<hr>
<h2>What would improve access around Australia?</h2>
<p>The current <a href="https://www.sciencedirect.com/science/article/pii/S0277539521000340?casa_token=zscbkTWzMfQAAAAA:4BId2MmOmBJ7unfhCLb3JGCxXakCa6_fPZaeB2YRdUfDDuzVQ3Pff_ZKqESRFw49Aa1K-gHMgA">shortage of abortion providers</a> could be remedied if Australia followed Sweden to make abortion provision <a href="https://www.sciencedirect.com/science/article/pii/S1521693419300951?casa_token=kWYrA1SEDnsAAAAA:zOC87tC7xnzbUMmjw869koeg7XzwI4kfHjaxZ_mmIIiLeosedBJXuZlTm4Ly3Db_SHszLab6KQ">compulsory</a> to the <a href="https://obgyn.onlinelibrary.wiley.com/doi/10.1111/ajo.13368">training</a> and work of midwives and <a href="https://www.betterhealth.vic.gov.au/health/serviceprofiles/obstetrician-gynaecologist-service">obstetrician-gynaecologists</a>.</p>
<p>The federal government could tie funding for public hospitals <a href="https://www.abc.net.au/news/2019-03-06/labor-promises-free-abortions-if-it-wins-government-at-election/10873612">to abortion provision</a>.</p>
<p>Primary health-care provision of abortion also needs to increase, which requires two key policy shifts.</p>
<p>First, the Therapeutic Goods Administration (TGA) must revise its guidelines for providers and dispensers of medical abortion. At present, doctors must complete an instruction module and register to prescribe mifepristone. Pharmacies must register to dispense the drug. No other drug is subject to such <a href="https://theconversation.com/its-time-to-lift-the-restrictions-on-medical-abortion-in-australia-114364">unnecessary regulation</a>.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/its-time-to-lift-the-restrictions-on-medical-abortion-in-australia-114364">It's time to lift the restrictions on medical abortion in Australia</a>
</strong>
</em>
</p>
<hr>
<p>Second, Medicare needs to add an item number specifically for the provision of medical abortion. Appointments take time and, to keep this service viable, GPs often charge an out-of-pocket fee to <a href="https://www.childrenbychoice.org.au/for-professionals/becoming-a-medical-abortion-provider/">patients of A$200-$300</a>. Providing a Medicare item number reflects the need for this service and would incentivise more GPs to become providers by ensuring adequate compensation.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/461421/original/file-20220505-14-c233ee.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Medicare card and Australian bank notes" src="https://images.theconversation.com/files/461421/original/file-20220505-14-c233ee.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/461421/original/file-20220505-14-c233ee.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/461421/original/file-20220505-14-c233ee.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/461421/original/file-20220505-14-c233ee.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/461421/original/file-20220505-14-c233ee.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/461421/original/file-20220505-14-c233ee.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/461421/original/file-20220505-14-c233ee.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">We need changes to Medicare to encourage more GPs to offer medical abortions.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/australian-medicare-card-money-457586230">Shutterstock</a></span>
</figcaption>
</figure>
<p>More nurses, midwives and Aboriginal and Torres Strait Islander health workers are needed to provide abortion services if abortions are to be <a href="https://3fe3eaf7-296b-470f-809a-f8eebaec315a.filesusr.com/ugd/410f2f_b90e75bf10784fedb7f3f6b2de9e6f48.pdf">affordable, local and timely</a>. </p>
<p>This requires <a href="https://www.publish.csiro.au/py/PY20304">several shifts</a>, including (but not limited to) changes to state/territory abortion laws (many of which limit abortion provision to medical doctors), TGA guidelines, and increased training. </p>
<h2>Australia’s system is not perfect</h2>
<p>There are several legal and practical hurdles to make sure abortion in Australia is affordable, accessible, and provided in a timely manner. We can look to the recent developments in the US to mobilise, in Australia, for a health system that reflects that abortion is an essential, common part of health care that needs to remain free from stigma and political interference.</p><img src="https://counter.theconversation.com/content/182413/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Erica Millar receives funding from the Australian Research Council. She is a member of the South Australian Abortion Action Coalition. </span></em></p>We need more health workers and public hospitals to provide abortions, a common and essential health service.Erica Millar, Senior research fellow, La Trobe UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1744632022-02-18T01:31:12Z2022-02-18T01:31:12ZStrip searches in prison are traumatising breaches of human rights. So, why are governments still allowing them?<p><em>Content warning: This article contains details readers may find distressing including discussion of excessive or gratuitous violence, abuse and mental illness.</em></p>
<p>In December, the <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSCA/2021/358.html?context=1;query=thompson%20v%20minogue;mask_path=">Victorian Court of Appeal found</a> certain routine strip searches in prison <a href="http://www.vals.org.au/wp-content/uploads/2021/10/Community-fact-sheet-VALS-intervention-in-Court-of-Appeal-Strip-Searching-and-Urine-Testing-Case.pdf">breach human rights</a> to privacy and dignity in detention. The decision highlights how traumatising, unnecessary and degrading the routine practice of strip searching people can be.</p>
<p>In Victoria’s prisons, <a href="https://www.corrections.vic.gov.au/commissioners-requirements-part-1">strip searches involve</a> forcing a person to remove their clothing, stand with their legs apart and bend over in full view of prison guards. There is some variation in strip-searching processes in <a href="https://www.oics.wa.gov.au/wp-content/uploads/2019/04/Strip-Searches-Review.pdf">other states and territories</a>.</p>
<p>Throughout Australia, police and prison officials conduct strip searches as a matter of routine. They are commonly conducted upon entry into custody, after legal and family visits and hearings, when <a href="https://www.oics.wa.gov.au/wp-content/uploads/2019/04/Strip-Searches-Review.pdf">moving between secure locations</a> or before drug testing.</p>
<p>For Aboriginal and Torres Strait Islander people, who are more likely to be policed, <a href="https://www.abs.gov.au/statistics/people/crime-and-justice/corrective-services-australia/latest-release">imprisoned</a>, subjected to abuses of power and violence within prisons, and <a href="https://theconversation.com/excessive-strip-searching-shines-light-on-discrimination-of-aboriginal-women-in-the-criminal-justice-system-163969">strip searched</a>, the court’s decision is important. Victoria’s criminal and legal systems are built on Australia’s violent colonial history, and routine strip searches are a modern form of this violence.</p>
<p>The <a href="http://www.vals.org.au/wp-content/uploads/2021/10/Community-fact-sheet-VALS-intervention-in-Court-of-Appeal-Strip-Searching-and-Urine-Testing-Case.pdf">Victorian Court of Appeal case</a> is an opportunity for real systemic reform. The Victorian government must now decide whether it will maintain this violent practice.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/excessive-strip-searching-shines-light-on-discrimination-of-aboriginal-women-in-the-criminal-justice-system-163969">Excessive strip-searching shines light on discrimination of Aboriginal women in the criminal justice system</a>
</strong>
</em>
</p>
<hr>
<h2>The case of Thompson v Minogue</h2>
<p>In 2020, Dr Craig Minogue successfully challenged a prison order that he submit to a urine test and routine strip search before that test. In the <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2021/56.html?context=1;query=Minogue%20v%20Thompson;mask_path=">Supreme Court</a>, Minogue <a href="https://www.hrlc.org.au/human-rights-case-summaries/2021/2/16/supreme-court-of-victoria-finds-that-random-urine-testing-and-associated-strip-searches-are-incompatible-with-human-rights">successfully</a> argued this direction was in breach of his rights to privacy and dignity in detention. The state of Victoria appealed.</p>
<p>The Victorian Aboriginal Legal Service (VALS) was granted <a href="http://www.vals.org.au/wp-content/uploads/2021/10/2021-10-11-0051-VALS-Submissions-on-Leave-to-Intervene-as-Amicus.pdf">leave to intervene</a> in the appeal as a “<a href="http://www.vals.org.au/wp-content/uploads/2021/10/Community-fact-sheet-VALS-intervention-in-Court-of-Appeal-Strip-Searching-and-Urine-Testing-Case.pdf">friend of the court</a>” to make <a href="http://www.vals.org.au/wp-content/uploads/2021/10/2021.10.11-VALS-0051-Proposed-Written-Submissions-on-Appeal.pdf">written and oral submissions.</a>. Although Minogue is not Aboriginal or Torres Strait Islander, VALS believed it was critical to provide the court information on the harmful impact of strip searching and urine testing on First Nations people.</p>
<p>The Victorian Court of Appeal upheld the Supreme Court’s ruling that routine strip searches prior to urine testing breached Minogue’s human rights and the government did not properly <a href="http://www.vals.org.au/wp-content/uploads/2021/10/Community-fact-sheet-VALS-intervention-in-Court-of-Appeal-Strip-Searching-and-Urine-Testing-Case.pdf">consider human rights</a> when making strip-searching policies. </p>
<p>The Court found these routine strip searches were “extremely invasive and demeaning” procedures which can constitute “a severe limitation upon […] privacy and dignity rights”. </p>
<p>Both the Supreme Court and Court of Appeal found the government did not back up its claims that routine strip searches prior to urine tests were necessary or effective. The government did not sufficiently explain why pre-existing and less harmful alternatives, such as x-ray body scanners, were not used.</p>
<p>However, the Court of Appeal reversed the Supreme Court’s decision on urine testing and found this procedure did not breach Minogue’s human rights. Minogue has sought to appeal this aspect of the decision to the High Court.</p>
<p>Now, it is up to the Victorian government to decide whether it will implement changes to strip-search policies and laws to end this practice across all police stations and prisons. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/dragging-its-feet-on-torture-prevention-australias-international-shame-171729">Dragging its feet on torture prevention: Australia’s international shame</a>
</strong>
</em>
</p>
<hr>
<h2>The human rights of people in prison</h2>
<p>Evidence and <a href="https://www.oics.wa.gov.au/wp-content/uploads/2019/04/Strip-Searches-Review.pdf">data</a> in Australia show strip searches are often over-used, <a href="https://www.abc.net.au/news/2021-09-03/strip-searches-of-female-prisoners-in-tasmania/100431432">ineffective</a> in uncovering contraband and <a href="https://theconversation.com/excessive-strip-searching-shines-light-on-discrimination-of-aboriginal-women-in-the-criminal-justice-system-163969">unnecessary</a>. Strip searches are also prone to being a tool for abuses of power and misconduct. </p>
<p>A <a href="https://www.ibac.vic.gov.au/publications-and-resources/article/special-report-on-corrections">2021 IBAC report</a> exposed serious misconduct in the management and conducting of strip searches in Victoria. Staff were unfamiliar with human rights standards and prisons did not properly investigate complaints about inappropriate searches. </p>
<p>The general manager of Port Phillip Prison was reported to have said strip searches were “one of the options available to assert control” over people in prison. Reports from <a href="https://obriensolicitors.com.au/damages-awarded-woman-strip-searched-correctives-officer/">other states</a> tell the same story of <a href="https://obriensolicitors.com.au/damages-awarded-woman-strip-searched-correctives-officer/">unlawful</a> searches being used to <a href="https://www.abc.net.au/news/2021-01-26/woman-at-canberra-jail-allegedly-strip-searched-in-front-of-men/13092512">degrade and humiliate</a> prisoners.</p>
<p>Under both the <a href="https://www.humanrights.vic.gov.au/legal-and-policy/victorias-human-rights-laws/the-charter/">Victorian human rights charter</a> and international law, people in prison are entitled to the same human rights as those outside of prison. This includes a right to privacy, including bodily and psychological autonomy, and to be treated with humanity and respect.</p>
<p><a href="https://www.ohchr.org/EN/ProfessionalInterest/Pages/BangkokRules.aspx">International law</a> dictates that, given the harmful impact of strip searches, alternatives such as x-ray scanners should instead be used in prisons. </p>
<p>Independent scrutiny of human rights in prisons is also vital, including preventive oversight under the UN <a href="https://theconversation.com/dragging-its-feet-on-torture-prevention-australias-international-shame-171729">Optional Protocol to the Convention against Torture (OPCAT)</a>. Australia has ratified this protocol, but has missed the January 20, 2022, deadline to meet its obligations to set up an independent oversight system of places of detention.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1464584964108865541"}"></div></p>
<h2>Strip searches are inherently harmful</h2>
<p>There is evidence Aboriginal people are subjected to <a href="https://theconversation.com/excessive-strip-searching-shines-light-on-discrimination-of-aboriginal-women-in-the-criminal-justice-system-163969">disproportionate rates of strip searching</a>. Many Aboriginal people who are incarcerated have <a href="https://www.aic.gov.au/sites/default/files/2020-05/ti536_aboriginal_prisoners_with_cognitive_impairment.pdf">disabilities</a> and <a href="https://journals.sagepub.com/doi/full/10.1177/2158244016686814">histories of trauma</a>. Strip searches can <a href="https://d3n8a8pro7vhmx.cloudfront.net/fclc/pages/692/attachments/original/1566194191/Decriminalising_mental_health_-_HRLC_submission.pdf?1566194191">compound this trauma</a> and impede a person’s ability to recover and heal. </p>
<p>In a 2016 Four Corners episode, entitled <a href="https://www.abc.net.au/4corners/australias-shame-promo/7649462">Australia’s Shame</a>, footage was shown of a young Aboriginal child in the Northern Territory being stripped naked. This horrified Australians and led to a royal commission. </p>
<p>Years later, however, it is <a href="https://content.legislation.vic.gov.au/sites/default/files/2021-12/05-96aa127%20authorised.pdf">still lawful in Victoria</a> and other states and territories to subject Aboriginal children to traumatic strip searches. </p>
<p>The evidence is indisputable – strip searches do not work, are inherently harmful, and disproportionately impact Aboriginal people. </p>
<p>Rather than persist with this archaic practice, all Australian governments must end the use of strip searches.</p><img src="https://counter.theconversation.com/content/174463/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Andreea Lachsz is the Head of Policy, Communications and Strategy at the Victorian Aboriginal Legal Service.</span></em></p><p class="fine-print"><em><span>Sarah is a Senior Lawyer / Advocate at the Victorian Aboriginal Legal Service (VALS) and represented VALS in the Court of Appeal matter of Thompson v Minogue, referred to in this article. </span></em></p>Strip-searching prisoners has been found to breach human rights. Will the Victorian government implement changes to strip-searching policies in places of detention?Andreea Lachsz, PhD Candidate, University of Technology SydneySarah Schwartz, Lecturer, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1706302021-11-03T04:02:05Z2021-11-03T04:02:05ZNo, that’s not the law: the danger of using pseudolegal arguments against COVID-19 rules<p>Don’t want to take a COVID test, wear a mask or get vaccinated? It’s pretty easy to find advice telling you you’re legally entitled to say no. Unfortunately, this advice is very bad.</p>
<p>The COVID-conspiracy ginger group Reignite Democracy Australia, for example, claims to have “<a href="https://www.reignitedemocracyaustralia.com.au/youcansayno/">been working with lawyers</a>” to provide template letters “you can use in situations where your personal rights are being encroached on”.</p>
<p>These letters state it is illegal for an employer or business to ask you to get tested, wear a mask or show proof of vaccination under the Australian Constitution and the Commonwealth Biosecurity Act 2015. </p>
<p>They suggest you cite Section 60, Subsection (2) of the Act and demand your employer provide a “human biosecurity control order”. They even suggest threatening legal action using the following words: </p>
<blockquote>
<p>If you take any action to terminate or otherwise restrict my employment, you will be in breach of my employment contract and I reserve my rights to take legal action against you for your unlawful termination.</p>
</blockquote>
<p>Similar advice is being spread on Facebook, Telegram and other social media channels. Other grounds cited for an employee or customer refusing to comply with COVID-related rules include the Federal Privacy Act 1988, human rights charters, anti-discrimination acts, the Nuremberg Code, statements by Australia’s Fair Work Ombudsman, and even “common law”.</p>
<p>All these arguments are flawed. They are what is known as “pseudolaw” – a mixture of real and fantasy legal ideas. Relying on them is most likely to make a situation worse. They might be enough to overwhelm or confuse a shop assistant, but they won’t stand up in court. </p>
<p>The consequences may include losing your job, putting yourself in a position where you may be arrested, spending money on fruitless legal cases, and incurring thousands of dollars in fines.</p>
<h2>Mixing fact and fantasy</h2>
<p>The term pseudolaw describes any statement that claims to represent a valid law but is actually false or “pretend”. This often involves squishing together real bits of law with false claims. </p>
<p>The Privacy Act 1988 (Cth), for example, is a real law that imposes rules on federal government agencies when it comes to handling personal information. But there’s nothing in the act that makes it unlawful to ask a customer to use a contact-tracing form when entering a shop. </p>
<p>The Australian Constitution does preclude “civil conscription” in <a href="http://classic.austlii.edu.au/au/legis/cth/consol_act/coaca430/s51.html">Section 51(xxiiiA)</a>. But this is about the federal government having the power to legislate on the provision of medical and dental services (as well as other forms of welfare) yet not being able to <a href="https://www.aap.com.au/factcheck/constitutional-clause-doesnt-ban-vaccine-mandates-in-australia/">force doctors and others</a> to provide such services. It doesn’t stop federal or state governments proclaiming mask or vaccine mandates. </p>
<p>The <a href="https://www.legislation.gov.au/Details/C2020C00127">Commonwealth Biosecurity Act</a> does state that a biosecurity control order from an authorised biosecurity officer is needed to compel an individual to do something, such as undertake vaccination. But this does not override or contradict state or territory health directions that mandate vaccinations in specific workplaces or other settings. Those directions are authorised by <a href="https://www.legislation.sa.gov.au/Web/Information/CV19/CV19.aspx">emergency management laws or public health acts</a>, which coexist with federal biosecurity legislation.</p>
<p>Australia’s <a href="https://www.legislation.gov.au/Details/C2018C00125">Disability Discrimination Act 1992</a> makes it unlawful to disadvantage another person or treat them differently because of a physical disability or even a disease. But it doesn’t mean a business can’t deny you entry if you refuse to show proof of vaccination. Businesses are <a href="https://www.theage.com.au/national/victoria/here-s-why-no-jab-no-entry-is-not-discrimination-20210920-p58t2v.html">generally entitled to set whatever conditions</a> of entry they want, provided those conditions are reasonable, don’t discriminate on grounds such as sex or ethnicity, and are imposed to comply with other laws.</p>
<h2>A lot like pseudoscience</h2>
<p>While pseudolaw has probably been around as long as law, one of its most common expressions in recent decades has been the “sovereign citizen” movement, which essentially argues that individuals do not have to comply with laws they disagree with. </p>
<p>One Nation senator Malcolm Roberts used sovereign citizen arguments in a <a href="https://www.smh.com.au/politics/federal/one-nation-senatorelect-malcolm-roberts-wrote-bizarre-sovereign-citizen-letter-to-julia-gillard-20160804-gqlesa.html">2011 affidavit</a> he sent to Prime Minister Julia Gillard, arguing he was exempt from the carbon tax and claiming compensation of A$280,000. Former One Nation senator Rod Culleton has also used sovereign citizen arguments, such as in his <a href="https://www.greataustralianparty.com.au/petition">petition to Queen Elizabeth</a> about the Australian government being illegitimate since 1973. </p>
<p>The attraction of these “personal sovereignty” arguments among those who fear COVID tests, masks and vaccines should hardly be surprising. Indeed, pseudolaw shares much ground with pseudoscience. As US lawyer Colin McRoberts <a href="https://aeon.co/ideas/here-comes-pseudolaw-a-weird-little-cousin-of-pseudoscience">has put it</a>:</p>
<blockquote>
<p>They both appeal to people’s natural fondness for self-reliance and secret knowledge. The path from curiosity toward self-destruction probably starts for many with curiosity about strange but compelling ideas – what if some of it were really true, and what’s the harm in believing it when you aren’t sick or in legal trouble? When the cost of error is low, the fact that snake oil doesn’t work is not particularly relevant. But once the believer starts to rely on it in the real world, the spiral has begun.</p>
</blockquote>
<p>Pseudolaw also uses similar methods to pseudoscience. McRoberts credits believers with being “typically intelligent and motivated, and capable of constructing complex edifices that sound superficially credible”. But this artifice and the ability to overwhelm those without legal training can easily mislead people into believing the actual arguments have legal merit. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/living-people-who-are-the-sovereign-citizens-or-sovcits-and-why-do-they-believe-they-have-immunity-from-the-law-143438">'Living people': who are the sovereign citizens, or SovCits, and why do they believe they have immunity from the law?</a>
</strong>
</em>
</p>
<hr>
<h2>Real consequences</h2>
<p>Relying on pseudolaw can give rise to serious legal consequences. Using them in a letter or document can cause harm and distress not only to the recipient but to your own case. If they lead to a genuine legal response or to court proceedings, they could potentially results in fines or penalties for falsifying documents.</p>
<p>Which is presumably why Reignite Democracy Australia includes the following disclaimers with its pseudolegal letters:</p>
<blockquote>
<p>Keep in mind that some employees might not take this well and could actually fire you if you choose not to wear a mask/get a test. You would then need to decide how to move forward from there. Please take this into consideration.</p>
</blockquote>
<p>In other words, before doing something that could result in you losing your job or incurring a large fine, you should get real legal advice. Consult your union, or a citizens’ legal advisory agency, or a lawyer you can trust.</p><img src="https://counter.theconversation.com/content/170630/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Sarah Moulds receives occasional research funding from the Law Foundation of South Australia. She is the Director of the volunteer-run Rights Resource Network SA and a member of the Law Society of South Australia.</span></em></p>Pseudolaw arguments against vaccine, mask and test rules mix real and fantasy legal ideas.Sarah Moulds, Senior Lecturer of Law, University of South AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1507332020-11-29T19:06:22Z2020-11-29T19:06:22ZCan governments mandate a COVID vaccination? Balancing public health with human rights – and what the law says<figure><img src="https://images.theconversation.com/files/371646/original/file-20201126-15-1tsj6qk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>Earlier in 2020, Prime Minister Scott Morrison said he expected the COVID-19 vaccine to be mandatory. He later backtracked, <a href="https://www.abc.net.au/news/2020-08-19/pm-walks-back-mandatory-coronavirus-vaccination-comments/12575600">noting</a> the government “can’t hold someone down and make them take it”.</p>
<p>But should it be able to mandate vaccination in the interests of public health?</p>
<p>Some <a href="https://jme.bmj.com/content/early/2020/11/09/medethics-2020-106821">argue</a> mandatory vaccination can be justified on ethical grounds and recommend penalties for non-compliance – or even payment for compliance. It is clear the Australian government will do whatever it can to encourage widespread vaccination. It anticipates the vaccine will be rolled out in Australia from <a href="https://www.abc.net.au/news/2020-11-23/astrazeneca-oxford-covid-19-vaccine-can-be-up-to-90pc-effective/12912564">March 2021</a>. </p>
<p>This is also sparking debate about liability <a href="https://theconversation.com/bad-reactions-to-the-covid-vaccine-will-be-rare-but-australians-deserve-a-proper-compensation-scheme-150288">should anything go wrong</a>.</p>
<p>Meanwhile, Qantas CEO Alan Joyce signalled vaccination is likely to be <a href="https://www.abc.net.au/news/2020-11-24/qantas-passengers-covid-19-vaccine-for-international-travel/12914020">compulsory</a> for international travel with the airline. Flight Centre and others have joined the call for “<a href="https://www.theage.com.au/business/companies/no-jab-no-fly-covid-19-vaccine-key-to-opening-borders-travel-leaders-say-20201125-p56hu8.html">vaccine passports</a>” as the means to re-establish international travel in a COVID-safe way. </p>
<p>Since the <a href="https://theconversation.com/explainer-what-are-the-australian-governments-powers-to-quarantine-people-in-a-coronavirus-outbreak-132877">beginning</a> of the COVID-19 pandemic, public health initiatives have <a href="https://journals.sagepub.com/doi/full/10.1177/1037969X20954292">continued</a> to raise questions regarding the appropriate balance between community interests and individual rights. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/371666/original/file-20201127-17-id6r6j.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/371666/original/file-20201127-17-id6r6j.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/371666/original/file-20201127-17-id6r6j.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/371666/original/file-20201127-17-id6r6j.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/371666/original/file-20201127-17-id6r6j.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/371666/original/file-20201127-17-id6r6j.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/371666/original/file-20201127-17-id6r6j.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Alan Joyce has indicated a COVID-19 vaccination will be required of passengers wanting to board international flights.</span>
<span class="attribution"><span class="source">Joel Carrett/AAP</span></span>
</figcaption>
</figure>
<h2>Can governments mandate vaccination?</h2>
<p>The position of governments at national or state and territory level is nuanced.</p>
<p>Public authorities have the ability to implement <a href="https://www.ncirs.org.au/public/no-jab-no-play-no-jab-no-pay">policies that make vaccination mandatory for discrete purposes</a>. For example, the Commonwealth “No Jab No Pay” policy makes eligibility for certain social security payments dependent upon vaccination. State-based “<a href="https://www2.health.vic.gov.au/public-health/immunisation/vaccination-children/no-jab-no-play">No Jab No Play</a>” policies limit access to childcare services. </p>
<p>These policies allow for a <a href="https://guides.dss.gov.au/family-assistance-guide/2/1/3/40">limited number of approved exemptions</a> at the national level, with some variation at state level. </p>
<p>Government may legitimately pursue such policies for public health reasons, and may do so in rolling out a COVID-19 vaccine. Governments cannot force vaccination on individuals who chose to refuse it, as acknowledged in the <a href="https://www.health.gov.au/resources/publications/australian-covid-19-vaccination-policy">Australian COVID-19 Vaccination Policy</a>. However, they can effectively punish people for refusal – as with “No Jab No Pay” – with incentives for vaccination then working as forms of compulsion.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/we-may-have-to-accept-a-good-enough-covid-19-vaccine-at-least-in-2021-148168">We may have to accept a 'good enough' COVID-19 vaccine, at least in 2021</a>
</strong>
</em>
</p>
<hr>
<p>It is also important to distinguish between individual healthcare and public health. In Australia, informed consent, whether express or implied, is an essential <a href="https://www.healthlawcentral.com/decisions/">pre-requisite of individual healthcare treatment</a>. Administering medical treatment in the absence of informed consent exposes healthcare professionals to both civil and criminal liability. The requirement of informed consent protects an individual’s right to bodily integrity. </p>
<p>The exception is in situations of emergency, when doctors can provide treatment in the absence of consent. There is no general definition of emergency but the treatment must be necessary and not merely convenient. These interventions are limited to situations in which the patient <a href="https://www.alrc.gov.au/publication/equality-capacity-and-disability-in-commonwealth-laws-dp-81/10-review-of-state-and-territory-legislation/informed-consent-to-medical-treatment/">lacks capacity to provide consent</a>. </p>
<p>Responsibility for public health primarily lies with the states and territories. In the context of declared public health emergencies, authorities have some coercive powers, including the ability to impose vaccinations. For example, section 157(1)(j) of WA’s <a href="https://www.legislation.wa.gov.au/legislation/statutes.nsf/main_mrtitle_13791_homepage.html">Public Health Act</a> 2016 allows the chief health officer (or a delegate) to “direct any person to undergo medical observation, medical examination or medical treatment or to be vaccinated” during a <a href="https://www.legislation.wa.gov.au/legislation/statutes.nsf/main_mrtitle_294_homepage.html">state of emergency</a>.</p>
<p>However, this power relates to individual cases and cannot form the basis of a blanket policy.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/can-the-government-or-my-employer-force-me-to-get-a-covid-19-vaccine-under-the-law-144739">Can the government, or my employer, force me to get a COVID-19 vaccine under the law?</a>
</strong>
</em>
</p>
<hr>
<p>Requirements of reasonableness are also built in to ensure such a <a href="https://www.abc.net.au/news/2020-06-17/fact-check-wa-emergency-powers-vaccination-covid-19/12349842">provision is not used arbitrarily</a>. </p>
<p>The situation is different when it comes to international travellers, as stated in the <a href="https://www.health.gov.au/resources/publications/australian-covid-19-vaccination-policy">Australian COVID-19 Vaccination Policy</a>. This policy contemplates the introduction of “border entry or re-entry requirements that are conditional on proof of vaccination”. </p>
<h2>What about employers and businesses?</h2>
<p>An additional layer of vaccine compulsion is likely to operate in certain industries. Employers may compel COVID-19 vaccinations where employees are working with vulnerable people. For example, health and aged-care workers may be obliged to be vaccinated as a condition of employment. Such requirements would need to be both <a href="https://www.dsalaw.com.au/can-an-employer-force-you-to-get-a-flu-shot/">lawful and reasonable</a>, and would withstand legal challenge. </p>
<p>The idea of a “<a href="https://www.axios.com/airlines-covid-vaccine-passports-drive-6fb11f81-f5b7-49d9-817f-18ac71a8d489.html">vaccine passport</a>” as a requirement for international travel is less legally controversial than it might sound. Airlines and other travel organisations already have detailed <a href="https://www.qantas.com/au/en/book-a-trip/flights/conditions-of-carriage.html#-refusal-of-entry-and-fines">conditions of carriage</a>. These permit the refusal of passengers in specific circumstances. </p>
<p>Of course, some passengers may refuse to fly if they do not wish to vaccinate themselves against COVID-19. From the perspective of the airlines, this is a business risk that appears insignificant in comparison to the <a href="https://www.oliverwyman.com/our-expertise/insights/2020/aug/covid-19-will-challenge-airlines-for-years.html">massive damage</a> the pandemic has done to the international travel market.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/371671/original/file-20201127-23-16xeiyo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/371671/original/file-20201127-23-16xeiyo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=411&fit=crop&dpr=1 600w, https://images.theconversation.com/files/371671/original/file-20201127-23-16xeiyo.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=411&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/371671/original/file-20201127-23-16xeiyo.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=411&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/371671/original/file-20201127-23-16xeiyo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=516&fit=crop&dpr=1 754w, https://images.theconversation.com/files/371671/original/file-20201127-23-16xeiyo.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=516&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/371671/original/file-20201127-23-16xeiyo.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=516&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The idea of a ‘vaccine passport’ for international travellers is not as controversial as it might sound.</span>
<span class="attribution"><span class="source">Shutterstock</span></span>
</figcaption>
</figure>
<h2>What about our human rights?</h2>
<p>Travel bans, social distancing, quarantine, restrictions on gatherings, contact tracing and many other COVID-related measures adopted around the world have breached or constrained human rights. These rights include freedom of movement and association, the right to education, the right to work and the right to privacy. </p>
<p>These steps were taken to protect the most fundamental of our human rights: the <a href="https://humanrights.gov.au/our-work/rights-and-freedoms/right-life">right to life</a>. They also protect our <a href="https://www.ag.gov.au/rights-and-protections/human-rights-and-anti-discrimination/human-rights-scrutiny/public-sector-guidance-sheets/right-health#:%7E:text=The%20right%20to%20health%20is,exercise%20of%20other%20human%20rights.">right to health</a>.</p>
<p>In particular, pandemic restrictions have protected vulnerable members of society. These groups will also be <a href="https://www.health.gov.au/resources/publications/atagi-preliminary-advice-on-general-principles-to-guide-the-prioritisation-of-target-populations-in-a-covid-19-vaccination-program-in-australia">prioritised</a> when the vaccine is rolled out. </p>
<p>International human rights law allows for some restrictions on rights in certain circumstances, such as a state of emergency, and for public health reasons. These restrictions are subject to strict tests of <a href="https://undocs.org/pdf?symbol=en/E/CN.4/1985/4">necessity and proportionality</a>. </p>
<p>Similarly, the <a href="https://www.legislation.vic.gov.au/in-force/acts/charter-human-rights-and-responsibilities-act-2006/014">Victorian Charter of Rights and Responsibilities</a> allows for some limitations to rights. </p>
<p>Rights are generally not absolute. The COVID-19 pandemic has provided many instances where constraints on individual rights and freedoms have been presented as justified in order to meet the public health goal. </p>
<p>None of this means we should ignore the significant human rights implications of these measures. Early in the pandemic’s global transmission, the World Health Organisation director-general <a href="https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-covid-19---11-march-2020">said</a>: </p>
<blockquote>
<p>All countries must strike a fine balance between protecting health, minimising economic and social disruption, and respecting human rights.</p>
</blockquote>
<p>Unfortunately, a lack of human rights infrastructure in Australia complicates efforts to achieve balance between rights claims. Australia remains an outlier among Western democracies given its lack of a federal bill or charter of rights. Limitation and balancing provisions are set out in the subnational human rights laws of Victoria, the ACT and Queensland. </p>
<p>At a national level, all new federal bills and legislative instruments must have a statement of compatibility with international human rights law under the <a href="https://www.legislation.gov.au/Details/C2016C00195">Human Rights (Parliamentary Scrutiny) Act 2011</a>. The act applies at a federal level only and covers only “disallowable” instruments that can be repealed. As a result, some measures introduced due to COVID-19 <a href="https://verfassungsblog.de/fighting-covid-19-legal-powers-and-risks-australia/">have not been subject to scrutiny</a>. </p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/covid-19-risk-and-rights-the-wicked-balancing-act-for-governments-146014">COVID-19, risk and rights: the 'wicked' balancing act for governments</a>
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<p>Australia is undoubtedly fortunate in terms of its exposure to the pandemic. However, we are under-resourced in legal terms to debate where balances can be struck between individual freedoms and the collective interest in public health. </p>
<p>As the pandemic and its effects on individuals and communities continue to evolve, policymakers must ensure human rights scrutiny of restrictive measures. Such engagement can build support for interventions based on scientific evidence.</p><img src="https://counter.theconversation.com/content/150733/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Fiona McGaughey is a member of the Law Council of Australia's Business and Human Rights Committee. She has previously received funding from Graduate Women WA.</span></em></p><p class="fine-print"><em><span>Marco Rizzi receives funding from the WA Department of Health.</span></em></p><p class="fine-print"><em><span>Amy Maguire does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Governments can do much to ensure mass vaccination of their citizens, particularly in the name of public health. But there needs to be careful examination of where that might breach human rights.Amy Maguire, Associate Professor in Human Rights and International Law, University of NewcastleFiona McGaughey, Senior Lecturer in International Human Rights Law, The University of Western AustraliaMarco Rizzi, Senior Lecturer in Law, The University of Western AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1442722020-08-25T20:08:27Z2020-08-25T20:08:27ZHow a fake ‘free speech crisis’ could imperil academic freedom<figure><img src="https://images.theconversation.com/files/354486/original/file-20200825-18-vdg3n2.jpg?ixlib=rb-1.1.0&rect=0%2C5%2C1198%2C819&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/newtown_grafitti/5363515370">Newtown grafitti/Flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span></figcaption></figure><p>Forceful suppression of political and scholarly views in universities has a long and shameful history. University of Cambridge Chancellor <a href="https://englishhistory.net/tudor/execution-john-fisher-sir-thomas-more/">John Fisher</a> was hanged, drawn and quartered for failing to support Henry VIII’s “<a href="https://www.bl.uk/learning/timeline/item101101.html">great matter</a>”. A few years later, <a href="https://www.exclassics.com/foxe/foxe340.htm">John Hullier</a> was burned at the stake on Cambridge’s Jesus Green for refusing to renounce Protestantism. </p>
<p>We imagine our modern universities to be more civil. Certainly, in the 1950s, when Russel Ward’s appointment to the New South Wales University of Technology (now UNSW) was <a href="https://www.tandfonline.com/doi/abs/10.1080/14490854.2014.11668530">blocked for political reasons</a>, this was frustrating, but not deadly. In Soviet Russia, by contrast, scientists who disagreed with Stalin’s approved theory of genetics went to prison. Some were executed. </p>
<p>These events show why academic freedom matters. Academic freedom is related to free speech in universities, the subject of a public debate that prompted the federal government to <a href="https://ministers.dese.gov.au/tehan/independent-review-freedom-speech-australian-higher-education-providers-0">commission a review</a> of the issue in 2018. This month the government <a href="https://www.education.gov.au/independent-review-freedom-speech-australian-higher-education-providers">appointed Professor Sally Walker</a> to <a href="https://ministers.dese.gov.au/tehan/evaluating-progress-free-speech">monitor universities’ adoption of a code of free speech</a> arising from the review. </p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/dan-tehan-wants-a-model-code-on-free-speech-at-universities-what-is-it-and-do-unis-need-it-119163">Dan Tehan wants a 'model code' on free speech at universities – what is it and do unis need it?</a>
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<p>This sounds like a good thing, which we would expect to reinforce academic freedom. However, in this case, the category of “free speech” actually conceals particular political interests that could threaten academic freedom. </p>
<h2>Free speech and academic freedom</h2>
<p>Academic freedom has been very hard won. Such freedoms are important because they are how we know we can trust scholars to tell the truth about the discoveries they make, even when that means society, politics or the economy may need to change as a result. If Stalin had allowed his geneticists academic freedom, for example, they might well have prevented <a href="https://www.britannica.com/event/Holodomor">widespread famine</a>.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/the-tragic-story-of-soviet-genetics-shows-the-folly-of-political-meddling-in-science-72580">The tragic story of Soviet genetics shows the folly of political meddling in science</a>
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<figure class="align-right ">
<img alt="Robert French" src="https://images.theconversation.com/files/354312/original/file-20200824-18-1czosxo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/354312/original/file-20200824-18-1czosxo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=880&fit=crop&dpr=1 600w, https://images.theconversation.com/files/354312/original/file-20200824-18-1czosxo.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=880&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/354312/original/file-20200824-18-1czosxo.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=880&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/354312/original/file-20200824-18-1czosxo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1106&fit=crop&dpr=1 754w, https://images.theconversation.com/files/354312/original/file-20200824-18-1czosxo.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1106&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/354312/original/file-20200824-18-1czosxo.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1106&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Robert French’s review didn’t find evidence of systemic problems with free speech in Australian universities.</span>
<span class="attribution"><span class="source">Faculty of Law, University of Cambridge/Wikimedia</span>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<p>So, when the <a href="https://ipa.org.au/publications-ipa/media-releases/free-speech-crisis-at-australias-universities-confirmed-by-new-research">Institute of Public Affairs</a> and the <a href="https://www.cis.org.au/research/culture-prosperity-civil-society/free-speech/">Centre for Independent Studies</a> used a system of <a href="https://www.abc.net.au/religion/katharine-gelber-free-speech-crisis-in-australian-universities/12459718">policy “audits</a>” <a href="https://hatfulofhistory.wordpress.com/2019/09/02/the-institute-of-public-affairs-and-the-globalised-network-of-free-speech-warriors/">imported from overseas</a> to declare a “free speech crisis” in Australian universities, this was taken seriously. Although academic freedom is different from free speech, the suppression of free speech can sometimes inhibit academic freedom. </p>
<p>One of our most meticulous retired High Court judges, Robert French, wrote a <a href="https://docs.education.gov.au/system/files/doc/other/report_of_the_independent_review_of_freedom_of_speech_in_australian_higher_education_providers_march_2019.pdf">300-page report</a> on the subject. He concluded:</p>
<blockquote>
<p>Reported events […] do not establish a systemic pattern of action […] adverse to freedom of speech or intellectual inquiry in the higher education sector. </p>
</blockquote>
<p>French was not the only one who took the time to consider the question. <a href="https://www.abc.net.au/radionational/programs/philosopherszone/free-speech-on-campus/10876206">Philosophers</a>, <a href="https://www.abc.net.au/religion/katharine-gelber-free-speech-crisis-in-australian-universities/12459718">legal scholars</a> and <a href="https://www.miragenews.com/summit-to-explore-issues-of-academic-freedom-and-autonomy/">vice-chancellors</a> authentically explored free speech and academic freedom from every angle. </p>
<hr>
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Read more:
<a href="https://theconversation.com/special-pleading-free-speech-and-australian-universities-108170">Special pleading: free speech and Australian universities</a>
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<p>It became evident there was no “crisis” at all. Nevertheless, conservative commentators kept saying there was. No review could mollify them. </p>
<p>The rather more <a href="https://ministers.dese.gov.au/tehan/evaluating-progress-free-speech">alarming news</a> that the government has appointed another legal authority to monitor university compliance with French’s model code of free speech is unlikely to satisfy them either. The “crisis” cannot be resolved by assuring free speech, because that is not what it was about.</p>
<h2>A ‘crisis’ born of an anti-PC campaign</h2>
<p>The so-called “free speech crisis” is actually an anti-political correctness campaign waged by particular groups of conservative intellectuals. French’s <a href="https://docs.education.gov.au/system/files/doc/other/report_of_the_independent_review_of_freedom_of_speech_in_australian_higher_education_providers_march_2019.pdf">review</a> shows some Australian conservatives looked to the success of such campaigns in the United States and the United Kingdom in increasing the political right’s power. They manufactured a similar “crisis” in Australian universities to achieve the same ends here.</p>
<p>Anti-political correctness is a philosophy that is not the same as free speech. Anti-political correctness claims that conservative students, lecturers and visitors to university campuses are unfairly limited in what they can say. Often this relates to so-called “<a href="https://www.theguardian.com/us-news/2016/nov/30/political-correctness-how-the-right-invented-phantom-enemy-donald-trump">politically correct</a>” subjects such as race, gender or sexuality.</p>
<p>The difference from free speech is obvious. Anti-PC advocates want to be able to say what they like, but they do not want to be called “racist”, “sexist” or “homophobic” in response. Anti-political correctness is always earned at the expense of someone else’s free speech.</p>
<p>Anti-political correctness is connected to <a href="https://theconversation.com/are-australians-ready-to-embrace-libertarianism-93576">libertarian philosophies</a>, which value individual freedom over collective well-being. However, anti-political correctness typically does not grant everyone the same freedom. </p>
<p>This is because anti-political correctness is linked to a conspiracy theory known as “Cultural Marxism”. Cultural Marxism is an imaginary left-wing movement that some conservatives believe deliberately coordinated a take-over of cultural institutions, including universities. Political sociologist Rachel Busbridge and her colleagues <a href="https://doi.org/10.1080/13504630.2020.1787822">describe</a> the transfer of this conspiracy theory from the US to Australia, where what was a far-right fringe theory has taken root in more mainstream conservative movements.</p>
<p>So, when the Institute of Public Affairs points to a “free speech crisis” in universities, it’s in fact seeking to take universities back from Marxists who some conservatives (falsely) believe control higher education. This is clearly not about free speech at all. </p>
<figure class="align-center ">
<img alt="Screen grab from IPA YouTube video on 'The Free Speech Crisis at Australia's Universities" src="https://images.theconversation.com/files/354314/original/file-20200824-24-ctevzv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/354314/original/file-20200824-24-ctevzv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=338&fit=crop&dpr=1 600w, https://images.theconversation.com/files/354314/original/file-20200824-24-ctevzv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=338&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/354314/original/file-20200824-24-ctevzv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=338&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/354314/original/file-20200824-24-ctevzv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=424&fit=crop&dpr=1 754w, https://images.theconversation.com/files/354314/original/file-20200824-24-ctevzv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=424&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/354314/original/file-20200824-24-ctevzv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=424&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">The IPA’s ‘free speech crisis’ campaign is a well-rehearsed political strategy.</span>
<span class="attribution"><span class="source">Institute of Public Affairs/YouTube</span></span>
</figcaption>
</figure>
<h2>Does anti-PC have a place in universities?</h2>
<p>Intellectuals earnestly exploring the supposed free speech crisis have suggested progressive (though probably not radical leftist) scholarship is <a href="https://www.abc.net.au/radionational/programs/philosopherszone/free-speech-on-campus/10876206">more thoroughly developed</a> in universities than conservative thinking. This may be placing some limits on conservative students to explore their politics in a rigorous and critical way.</p>
<p>If the university system was at its best, the right kind of response would see scholars making a new bargain: I’ll read <a href="https://aynrand.org/">Ayn Rand</a> with you if you read <a href="http://davidharvey.org/reading-capital/">Karl Marx</a> with me (I’m game). But those who manufactured a free speech crisis did not intend to produce this kind of critical engagement nor even an authentic scholarly conversation between thinkers with diverse politics.</p>
<p>This is a pity. Universities have many flaws – <a href="https://theconversation.com/universities-and-government-need-to-rethink-their-relationship-with-each-other-before-its-too-late-139963">they always have</a> – but also many uses. It would be useful if they provided the intellectual underpinnings to democracy, especially as the world changes. This means producing better conservative work than they currently achieve, while also continuing to nurture the universities’ quite well-developed progressive thinking. </p>
<p>This is a critical job. It’s not one that can be achieved by the loudest, most insulting yelling – though students are free to do that, too. But the job of the university, at its best, is to find a critical place for anti-political correctness on campus, just as for all kinds of ideas. </p>
<p>Students could fruitfully explore the history and philosophy of <a href="https://theconversation.com/are-australians-ready-to-embrace-libertarianism-93576">libertarianism</a> and anti-political correctness in political science, cultural studies, history, political economy and many other disciplines. Of course, they should similarly engage with feminism, critical race studies and postmodernism.</p>
<figure class="align-center ">
<img alt="Portraits of Ayn Rand and Karl Marx" src="https://images.theconversation.com/files/354316/original/file-20200824-16-1kx8ct4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/354316/original/file-20200824-16-1kx8ct4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=358&fit=crop&dpr=1 600w, https://images.theconversation.com/files/354316/original/file-20200824-16-1kx8ct4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=358&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/354316/original/file-20200824-16-1kx8ct4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=358&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/354316/original/file-20200824-16-1kx8ct4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=449&fit=crop&dpr=1 754w, https://images.theconversation.com/files/354316/original/file-20200824-16-1kx8ct4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=449&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/354316/original/file-20200824-16-1kx8ct4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=449&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">A willingness to read both Ayn Rand and Karl Marx is not the kind of critical engagement many free speech campaigners have in mind.</span>
</figcaption>
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<h2>Imposed ‘solution’ threatens academic freedom</h2>
<p>Imposing anti-political correctness on all members of the university as a compulsory philosophy undermines, rather than promotes, academic freedom. To do so under the cover of “free speech” is not only disingenuous, it further jeopardises our universities, which are already facing risks to academic freedom. These are increasingly due to the commercial pressures universities face. </p>
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Read more:
<a href="https://theconversation.com/the-great-irony-in-punishing-universities-for-failing-to-uphold-freedom-of-speech-98548">The great irony in punishing universities for 'failing' to uphold freedom of speech</a>
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<p>Financial pressure was not always the source of threats to academic freedom. It used to be government. The predecessor to the <a href="http://www.nteu.org.au/">National Tertiary Education Union</a> was formed during the Cold War in part to defend academic freedom in Australia from the kind of <a href="https://www.britannica.com/topic/McCarthyism">McCarthyism</a> going on in the United States. </p>
<p>In the 1950s, the union was active in the <a href="https://www.tandfonline.com/doi/abs/10.1080/14490854.2014.11668530">Ward case</a>, which was about academic freedom. The union was also very influential in the <a href="http://adb.anu.edu.au/biography/orr-sydney-sparkes-11314">Orr case</a>, which it believed to be about academic freedom. (It was <a href="https://catalogue.nla.gov.au/Record/2606596">wrong</a> about this one, it turned out.)</p>
<p>Things have changed, but the union has continued to support academic freedom. More recently, the union spoke in support of <a href="https://www.abc.net.au/news/2019-04-16/jcu-scientist-peter-ridd-sacking-unlawful-federal-court-judgment/11021554">Peter Ridd</a>, whose comments on Sky News opposing his colleagues’ claims that climate change has affected the Great Barrier Reef got him sacked from James Cook University. </p>
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Read more:
<a href="https://theconversation.com/egging-the-question-can-your-employer-sack-you-for-what-you-say-or-do-in-your-own-time-116880">Egging the question: can your employer sack you for what you say or do in your own time?</a>
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<p>This last case is rather different to the earlier ones, since many more commercial interests are at stake. Ridd’s <a href="https://au.gofundme.com/f/peter-ridd-legal-action-fund-2019/topdonations/">GoFundMe page</a> seeking support for a High Court appeal shows hundreds of thousands donated by the likes of <a href="https://www.crikey.com.au/2019/01/29/institute-of-public-affairs-climate-change-denialism/">Bryant Macfie</a>, whose commercial interests align with their denial of the majority of climate science. </p>
<h2>Commercial interests are a threat</h2>
<p>Universities are vulnerable to commercial pressure. Over the past 40 years, universities have become <a href="https://theconversation.com/universities-are-not-corporations-600-australian-academics-call-for-change-to-uni-governance-structures-143254">explicitly commercial enterprises</a>. A vice-chancellor’s job now pressures them to protect their institution’s “brand” first, perhaps more than academic freedom. </p>
<p>Although the <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCAFC/2020/123.html?context=1;query=Peter%20Ridd;mask_path=">specifics of the Ridd case</a> suggest this is actually about the university’s code of conduct, university managers have tended to be quicker to protect income streams than scholarly independence. </p>
<p>In 2016, La Trobe University management <a href="https://newmatilda.com/2016/06/01/latrobe-suspends-safe-schools-co-founder-and-academic-roz-ward-for-criticising-racist-australian-flag/">suspended Roz Ward</a> over a private post on Facebook supporting the “red flag forever”. Management reportedly responded to pressure that threatened the withdrawal of funding for their Centre for Health, Sex and Society. </p>
<p><a href="https://oxfordre.com/politics/view/10.1093/acrefore/9780190228637.001.0001/acrefore-9780190228637-e-15#acrefore-9780190228637-e-15-div1-7">Academic capitalism</a> has grown in universities worldwide since the 1980s. Its critics have regularly pointed out the academic freedom risks associated with commercialising scholarly endeavour. These have only increased as the logic of profit dominated higher education. </p>
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Read more:
<a href="https://theconversation.com/universities-are-not-corporations-600-australian-academics-call-for-change-to-uni-governance-structures-143254">'Universities are not corporations': 600 Australian academics call for change to uni governance structures</a>
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<p>Recently, the University of New South Wales appeared to allow its commercial interests – the importance of international fees paid by students from China – to trump its commitment to academic freedom when it <a href="https://www.smh.com.au/national/critical-test-of-academic-freedom-for-australian-universities-20200804-p55iec.html">deleted a tweet</a> by Elaine Pearson about human rights in Hong Kong. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1289337058104881152"}"></div></p>
<p>University of Queensland student Drew Pavlou recently <a href="https://www.abc.net.au/news/2020-07-13/uq-upholds-suspension-student-drew-pavlou-anti-china-activist/12450926">lost an appeal</a> against his suspension. He claimed his suspension was punishment for speaking out about <a href="https://www.news.com.au/national/queensland/brisbane-uni-student-drew-pavlou-loses-appeal-against-suspension-at-the-university-of-queensland/news-story/4c7caae14d508ecdddb5da62e6b4c434">Chinese funders influencing course content</a>.</p>
<p>Aligning commercial interests to academic work was always fraught, but government funding too came with risks. In fact, mid-20th-century vice-chancellors were at first <a href="https://aph.org.au/2017/11/university-autonomy-and-the-public-interest/">reluctant to accept Commonwealth funding</a> for fear government interference would jeopardise academic freedom. Between the <a href="https://www.voced.edu.au/content/ngv%3A53782">Murray review</a> of the 1950s and the <a href="https://theconversation.com/book-review-the-dawkins-revolution-25-years-on-19291">Dawkins reforms</a> of the 1980s, a “buffer body”, the Australian Universities Commission (later the Commonwealth Tertiary Education Commission, when colleges of advanced education were included), sought to keep the government’s political interests at arm’s length from university funding. </p>
<p>The <a href="https://link.springer.com/article/10.1007/BF00137105">buffer has long gone</a>. As the university commercialised, academic freedom has become more precarious. </p>
<p>From this point of view, the Walker <a href="https://ministers.dese.gov.au/tehan/evaluating-progress-free-speech">appointment</a> to monitor university compliance with free speech seems perilous. Since there was no free speech crisis, the government’s attentiveness to free speech on Australian campuses is little more than a <a href="https://www.tai.org.au/sites/default/files/DP96_8.pdf">dog-whistle</a> to particular political interests. </p>
<p>Depending on how Walker approaches her task, rather than protecting free speech in Australian universities, the <a href="https://www.skynews.com.au/details/_6179594282001">government’s policing of free speech</a>, ironically enough, may <a href="https://www.theguardian.com/commentisfree/2020/aug/04/rightwing-academic-freedom-policy-exchange-thinktank">threaten academic freedom</a>.</p><img src="https://counter.theconversation.com/content/144272/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Hannah Forsyth has received research funding from the Australian Research Council, the Australian Catholic University and the University of Sydney and is a member of the National Tertiary Education Union.</span></em></p>The campaign for ‘free speech on campus’ mimics US and UK tactics of using a manufactured crisis to further the goal of increasing conservative political influence in universities.Hannah Forsyth, Senior Lecturer in History, Australian Catholic UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1407312020-06-16T03:17:55Z2020-06-16T03:17:55ZExplainer: what does the law say about secret recordings and the public interest?<figure><img src="https://images.theconversation.com/files/341768/original/file-20200615-65956-hfm25s.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>Nine’s 60 Minutes program recently <a href="https://www.youtube.com/watch?v=om01Zu_BlGc">aired surveillance footage</a> appearing to show Victorian minister Adem Somyurek, an upper house MP in the Andrews government and a member of the ALP national executive, preparing a folder of cash along with dozens of party membership forms for the alleged purpose of branch stacking.</p>
<p>The program also aired recordings in which Somyurek disparaged his colleagues, including Premier Daniel Andrews, and other office staff. Apparently, the tapes were recorded over the past 12 months. It is not clear how this was done, or who made and released them.</p>
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Read more:
<a href="https://theconversation.com/explainer-what-is-branch-stacking-and-why-has-neither-major-party-been-able-to-stamp-it-out-140726">Explainer: what is branch stacking, and why has neither major party been able to stamp it out?</a>
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<p>The recriminations were fast and furious. Andrews immediately sacked Somyurek from his cabinet, and referred the matter to the police and the state’s anti-corruption commission, <a href="https://www.ibac.vic.gov.au/">IBAC</a>. <a href="https://www.theage.com.au/national/victoria/marlene-kairouz-resigns-over-branch-stacking-revelations-20200616-p552zq.html">Two more ministers have since resigned</a> pending an investigation.</p>
<p>In a statement, <a href="https://www.abc.net.au/news/2020-06-15/victorian-labor-minister-adem-somyurek-sacked/12354870">Somyurek claimed</a> he had been a victim of an illegality:</p>
<blockquote>
<p>It is clear that I was taped and surveilled in a federal electorate office without my knowledge and that this material was published without my knowledge of its existence or my consent […] The conversations published without my knowledge or consent were with someone who I trusted about internal party matters […] I will be taking steps to seek a police investigation into these matters.</p>
</blockquote>
<p>Does he have a valid argument? Are his private conversations protected? </p>
<p>To answer these questions, we need to look at the laws that regulate surveillance devices such as cameras and microphones. Unsurprisingly, the law is a patchwork of some federal but mainly state and territory legislation.</p>
<p>All Australian jurisdictions have laws regulating the use of listening devices, some for the past 50 years. Each of these statutes makes it an offence to listen to or record a private conversation using a listening device. </p>
<p>Broadly speaking, it is illegal to install a listening device without an appropriate police warrant. It is an offence in all jurisdictions to broadcast a recording of a taped conversation or publish the information from it.</p>
<p>Indeed, a person may be committing an offence in some jurisdictions by simply possessing a report that contains a summary of the contents of the recording. Most jurisdictions have now expanded their legislation to embrace cameras and <a href="https://theconversation.com/who-gets-to-see-cctv-footage-the-law-favours-the-operators-71487">CCTV</a>, too, under the broader term “surveillance devices”.</p>
<p>Most relevant for our purposes is the <a href="https://www.legislation.vic.gov.au/in-force/acts/surveillance-devices-act-1999/040">Victorian Surveillance Devices Act 1999</a>. This law protects a “private conversation” from surveillance. And that protection extends to the broadcasting of any recording.</p>
<p>A private conversation is one that is “carried on in circumstances that may reasonably be taken to indicate that the parties to it desire it to be heard only by themselves”.</p>
<p>So far, so good, for Somyurek.</p>
<p>But as Nine’s lawyers would have advised the 60 Minutes producers, all Australian legislation provides for a public policy exception. For example, this may apply where surveillance is designed to protect the lawful interests of the person making the recording. It may also apply where it appears activities are being carried out for nefarious purposes, such as an alleged abuse of ministerial office.</p>
<p>Section 7(2) allows a defence to the charge of installing and monitoring a surveillance device if the installation, use or maintenance is reasonably necessary for the protection of any person’s lawful interests. That’s a very broad defence.</p>
<p>And section 11(2) allows a communication of any recording for a “publication that is no more than is reasonably necessary in the public interest”.</p>
<p>This same “public interest” defence would apply to the publication of the internal briefing with Rio Tinto staff last week following the destruction of an ancient Aboriginal site at <a href="https://theconversation.com/destruction-of-juukan-gorge-we-need-to-know-the-history-of-artefacts-but-it-is-more-important-to-keep-them-in-place-139650">Juukan Gorge</a>.</p>
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Read more:
<a href="https://theconversation.com/is-the-governments-coronavirus-app-a-risk-to-privacy-136719">Is the government's coronavirus app a risk to privacy?</a>
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<p>This <a href="https://www.afr.com/rear-window/secret-recording-rio-tinto-not-sorry-for-cave-blast-20200614-p552eh">tape was leaked</a> to The Australian Financial Review. The lawyers arguing for the release of a private recording of a company meeting would argue (if challenged) that the testy interactions heard therein indicated the views of Rio employees about the company’s unapologetic stance on the destruction of the site.</p>
<p>In this instance, the “public interest” arguably relates not only to the authorisation of the blast, but also the reputation of all members of staff who are seen as representatives of Rio Tinto and its values.</p>
<p>Applying the public interest defence in the Somyurek and Rio Tinto cases, one could argue, has led to appropriate outcomes. But these laws and the protections they are designed to offer need improvement. The variety of offences, and the breadth and length of the numerous defences in each jurisdiction, all illustrate the awkward consequences of state and territory governments <a href="https://www.lawreform.vic.gov.au/publications-and-media/journal-articles/modernising-surveillance-laws">failing to pursue uniform legislation</a>.</p>
<p>This multitude of approaches leaves Australian surveillance laws (including laws regulating telephone tapping, internet snooping and <a href="https://theconversation.com/revisiting-metadata-retention-in-light-of-the-governments-push-for-new-powers-97931">metadata surveillance</a>) complicated and confusing. This applies not only in matters like those discussed above, but also to what is and what is not permitted in relation to workplace surveillance.</p>
<p>It is high time that attorneys-general (state and federal) around Australia came together to craft a consistent approach to surveillance device laws.</p><img src="https://counter.theconversation.com/content/140731/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Rick Sarre receives funding from the Criminology Research Council. He is affiliated with the ALP (SA) State Council.</span></em></p>A patchwork of state and federal laws cover the surveillance of private conversation. But, in all cases, there is a “public interest” defence.Rick Sarre, Adjunct Professor of Law and Criminal Justice, University of South AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1280562020-02-12T19:14:23Z2020-02-12T19:14:23ZAn unsent SMS, a message on a tractor, a poem: the courts say a valid will can take many forms<figure><img src="https://images.theconversation.com/files/311783/original/file-20200124-81336-1qpunhj.jpg?ixlib=rb-1.1.0&rect=0%2C14%2C2392%2C1580&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">In 1948, as Cecil George Harris lay dying after a tractor accident, he scratched a final message into the vehicle's fender.</span> <span class="attribution"><span class="source">illustration supplied by: Impact Studios/Dinalie Dabarera.</span></span></figcaption></figure><p>When a man died by suicide in 2016, a friend found an unsent SMS on his phone:</p>
<blockquote>
<p>Dave Nic you and Jack keep all that I have house and superannuation,
put my ashes in the back garden with Trish Julie will take her stuff only
she’s ok gone back to her ex AGAIN I’m beaten. A bit of cash behind TV
and a bit in the bank Cash card pin 3636
MRN190162Q
10/10/2016
My will</p>
</blockquote>
<p>Following a dispute between the man’s widow and his brother and nephew, the <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/qld/QSC/2017/220.html">Supreme Court of Queensland</a> decided the message was a valid will. </p>
<p>The case represents a growing body of legal decisions reflecting how the digital age is challenging the courts.</p>
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Read more:
<a href="https://theconversation.com/five-things-to-do-before-you-die-because-planning-your-eventual-demise-takes-preparation-122296">Five things to do before you die – because planning your eventual demise takes preparation</a>
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<h2>The changing definition of the word ‘document’</h2>
<p>The courts have had to consider whether <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/sa/SASC/2015/9.html">DVDs</a> and <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWSC/2015/1107.html?context=1;query=wai%20fun%20chan;mask_path=au/cases/nsw/NSWSC">digital videos</a> , <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/qld/QSC/2013/322.html">iPhone notes</a> , <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWSC/2012/594.html">Microsoft Word documents</a> , <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWSC/2015/1098.html?context=1;query=currie;mask_path=au/cases/nsw/NSWSC">encrypted computer files</a> and other digital artefacts count at valid wills or amendments. </p>
<iframe src="https://webplayer.whooshkaa.com/episode/518815?theme=light&visual=true&enable-volume=true" height="190" width="100%" scrolling="no" frameborder="0" allow="autoplay"></iframe>
<p>In the UK, the Law Commission is reviewing the law of wills to decide whether it should reflect the ubiquity of <a href="https://www.lawcom.gov.uk/project/wills/">digital technologies</a>. </p>
<p>Except in very limited exceptional circumstances, a will is a document. To be a valid formal will, there are certain requirements: it must be in writing, on paper, signed by the testator, witnessed by other people, and formally executed. Specific formal language is encouraged.</p>
<p>In law, documents – more than witnesses or physical objects – have become the most important form of evidence. </p>
<p>But in the digital age, the distinction between a document, a witness and real evidence is becoming more difficult to perceive, and pointless to sustain. </p>
<p>What we understand as a “document” has expanded to include a potentially limitless range of digital forms and devices.</p>
<p>Challenges abound. Digital documents are long, ubiquitous, intangible, difficult to authenticate, easy to duplicate and modify. They sometimes bring more questions than answers.</p>
<h2>The case of the unsent SMS</h2>
<p>The Supreme Court of Queensland had no difficulty in finding that the unsent text message was a document. However, it was not a formal will. <em>Informal</em> wills can still be valid in some circumstances. The court noted that the unsent message was identified as a will, dated, contained the deceased’s initials and date of birth (“MRN190162”).</p>
<p>It identified most of his assets, included clear wishes about their distribution, provided a pin code and gave instructions about his ashes. </p>
<p>The court also considered his state of mind at the time of his death, determining he had sufficient capacity to make a will. It considered the fact the man didn’t send the text message: did it mean that his will was still in draft form and did not reflect his final wishes? </p>
<p>The court accepted evidence that he did not send the message so that his family would not interrupt his suicide. Despite lacking nearly all of the formalities of a will, it was found to be his valid last will and testament.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/312164/original/file-20200127-81341-rn410s.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/312164/original/file-20200127-81341-rn410s.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/312164/original/file-20200127-81341-rn410s.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/312164/original/file-20200127-81341-rn410s.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/312164/original/file-20200127-81341-rn410s.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/312164/original/file-20200127-81341-rn410s.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/312164/original/file-20200127-81341-rn410s.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/312164/original/file-20200127-81341-rn410s.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A court might look for clues wherever possible - even in the deceased draft messages folder.</span>
<span class="attribution"><span class="source">Shutterstock</span></span>
</figcaption>
</figure>
<h2>The case of the tractor fender will</h2>
<p>Courts have had to consider whether an <a href="https://www.cambridge.org/core/journals/cambridge-law-journal/article/willseamans-willwriting-on-eggshellwills-act-1837-1-vict-c-26-s-11/DDA23B1767D1C580E848A08209EFD10A">eggshell</a> , a tractor fender, <a href="https://latimes.newspapers.com/image/380273395/?terms=recluse%27s%2Bhoard%2Bclaimed">a petticoat hem </a>, <a href="http://www7.austlii.edu.au/cgi-bin/LawCite?cit=%281988%29%2053%20SASR%20221">graffiti on a wall </a>, and <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWSC/2007/1271.html">a</a> <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWCA/2008/223.html">poem</a> might be valid wills.</p>
<p>In 1948, Cecil George Harris died following an accident on his Saskatchewan wheat farm. He had been trapped underneath his tractor for 12 hours in torrential rain. His wife and neighbours eventually found him during a lightning storm. Despite their best efforts, he died of his injuries. </p>
<p>Two of his curious neighbours went to examine Harris’ stricken tractor and found that message he’d scratched into the paint on the fender: </p>
<blockquote>
<p>In case I die in this mess I leave all to the wife. Cecil Geo. Harris</p>
</blockquote>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/D_lqmrz_dLQ?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">An extract from ‘In Case I Die In This Mess’, an episode of the podcast History Lab, from Impact Studios at the University of Technology, Sydney.</span></figcaption>
</figure>
<p>The neighbours removed the fender after his funeral and conveyed it to a local lawyer. It was eventually held to be Harris’ last will and testament. Because this case is now a quirky landmark of Saskatchewan succession law, the fender and the knife Harris used to carve his message are now on <a href="https://ocnarchives.usask.ca/09-jan-23/see_what_we_found.php">display</a> in the library of the University of Saskatchewan law school.</p>
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Read more:
<a href="https://theconversation.com/facebooks-accidental-death-of-users-reminds-us-to-plan-for-digital-death-68745">Facebook's accidental 'death' of users reminds us to plan for digital death</a>
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<h2>What would the deceased have wanted?</h2>
<p>Grief, generosity, love, regret, hate, spite, retribution, eccentricity: the full gamut of human emotions are revealed in a person’s will, and in the conduct of their beneficiaries and descendants after death. </p>
<p>Probate courts are required to walk into this emotional minefield, and ask: what would the deceased have wanted?</p>
<p>When a deceased person hasn’t left a will, or they’ve left one that’s deficient, the court looks for clues. </p>
<p>And, as history tells us, the courts have often acted with considerable sensitivity and flexibility in trying to do justice to the dead.</p>
<hr>
<p><em>If this article has raised issues for you, or if you’re concerned about someone you know, call Lifeline on 13 11 14.</em></p>
<hr>
<p><em><a href="https://historylab.net/s3ep1-in-case-i-die-in-this-mess/">In Case I Die In This Mess</a> was made by <a href="https://www.uts.edu.au/partners-and-community/initiatives/impact-studios/about-us">Impact Studios</a> at the University of Technology, Sydney - a new audio production house combining academic research and audio storytelling. It is the first episode in a four part series titled ‘The Law’s Way of Knowing’, available for download through the award-winning UTS <a href="https://historylab.net/">History Lab</a> podcast.</em></p><img src="https://counter.theconversation.com/content/128056/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Katherine Biber receives funding from the Australian Research Council. She serves on the UTS Branch Committee of the NTEU.
</span></em></p>Courts have had to consider whether an eggshell, a tractor fender, a petticoat hem, graffiti on a wall, and a poem might be valid wills. They’ve shown surprising flexibility in judgment.Katherine Biber, Professor of Law, University of Technology SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1246372019-10-03T22:38:20Z2019-10-03T22:38:20ZExplainer: what is extradition between countries and how does it work?<figure><img src="https://images.theconversation.com/files/295515/original/file-20191003-52796-1ux6abj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Malka Leifer's extradition process has been in train since Australia lodged its request with Israel in 2013.</span> <span class="attribution"><span class="source">AAP/supplied</span></span></figcaption></figure><p>Extradition cases are relatively rare but often controversial. Many in Australia are following the case of former Melbourne principal Malka Leifer, currently under house arrest in Israel. Leifer is <a href="https://www.abc.net.au/news/2019-10-02/melbourne-principal-malka-leifer-granted-bail-in-israel/11568444">wanted for extradition</a> to Victoria on 74 charges of child sexual assault. </p>
<p>It is widely accepted that offenders should not be able to evade justice by crossing borders. Over <a href="https://heinonline.org/HOL/LandingPage?handle=hein.journals/stlulj28&div=16&id=&page=">thousands of years</a>, countries have developed processes to apprehend and transfer accused and convicted people to other jurisdictions to face trial and/or imprisonment. </p>
<p>In the contemporary process of extradition, the “requesting state” is the country where a relevant crime has been committed. The “extraditing state” is the country from which extradition is requested. </p>
<h2>Extradition in international and Australian law</h2>
<p>Extradition is a matter of international law, in the sense that it requires the participation of two or more countries. It also relies on principles that have emerged through international customary and treaty law. </p>
<p>The key related concept is jurisdiction. Article 2 of the <a href="https://www.un.org/en/sections/un-charter/un-charter-full-text/">United Nations Charter</a> makes clear the significance of political independence, territorial integrity and domestic jurisdiction to the status of a country. The international legal system is built on an assumption that states (countries) are equally entitled to non-interference in their domestic affairs.</p>
<p>According to the <a href="https://www.casebriefs.com/blog/law/international-law/international-law-keyed-to-damrosche/chapter-2/the-case-of-the-s-s-lotus-france-v-turkey/">territoriality principle</a>, crimes committed within a country’s territorial jurisdiction are subject to prosecution there. This is so whether the person accused of the crime is a national of the prosecuting country or not. </p>
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<strong>
Read more:
<a href="https://theconversation.com/explainer-why-the-government-pulled-australias-extradition-treaty-with-china-74984">Explainer: why the government 'pulled' Australia's extradition treaty with China</a>
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<p>However, extradition as a process is not governed by an international treaty regime or overseen by the United Nations. It typically involves a treaty between two states. If one country agrees to extradite a person to another, this is done as a matter of comity rather than because of a legal obligation. </p>
<p>Australian law governs extradition through the <a href="https://www.legislation.gov.au/Details/C2012C00497">Extradition Act</a> 1988. The act sets a framework for courts to determine if a person is to be extradited from Australia. It also empowers the government to make extradition requests of other governments. </p>
<p>The Australian government can consider extradition requests from countries <a href="https://www.ag.gov.au/Internationalrelations/Internationalcrimecooperationarrangements/Pages/default.aspx">designated</a> under domestic regulations as extradition countries. The majority of these are countries with which Australia has <a href="https://www.ag.gov.au/Internationalrelations/Internationalcrimecooperationarrangements/Documents/australias-bilaterial-extradition-arrangements.pdf">bilateral extradition treaties</a>. </p>
<p>Australia also has extradition obligations through <a href="https://www.ag.gov.au/Internationalrelations/Internationalcrimecooperationarrangements/Documents/countries-that-are-party-to-multilateral-treaties-with-extradition-obligations-that-australia-is-also-a-party-to.pdf">multilateral treaties</a> that focus on specific forms of crime. It may consider extradition requests from other Commonwealth countries through the non-binding <a href="https://www.ag.gov.au/Internationalrelations/Internationalcrimecooperationarrangements/Documents/countries-that-are-a-member-of-the-london-scheme.pdf">London Scheme</a>.</p>
<p>In a case where Australia is the requesting state, it can request extradition from any other country. However, it cannot expect extradition. </p>
<h2>How are extradition decisions made?</h2>
<p>Under the Extradition Act, extradition matters are formally dealt with by the Commonwealth Attorney-General. <a href="https://ngm.com.au/extradition-australia-new-zealand/">Exceptional arrangements operate</a> with New Zealand, with extradition matters largely being dealt with police-to-police rather than between the national governments. </p>
<p>If another country makes an extradition request of Australia, the Attorney-General will issue a written notice to the Federal Circuit Court. A judge must then determine if the person subject to the request is eligible to be extradited. </p>
<p>In making this decision, a judge will <a href="https://ngm.com.au/the-extradition-process/">consider</a>: </p>
<ul>
<li><p>dual criminality - an act must be criminal under Australian law as well as under the law of the requesting state</p></li>
<li><p>if any extradition objections exist - Australia will refuse extradition if, for example, a person has already been punished for the offence in Australia or is unlikely to receive a fair trial if extradited</p></li>
<li><p>whether a person will face execution if extradited - Australia would not permit extradition if capital punishment was a possible outcome. </p></li>
</ul>
<p>After a judge finds a person is eligible for extradition, the Attorney-General has the final say. </p>
<p>In the reverse case, where Australia is the requesting state, the process will depend on the law of the extraditing state. This is painfully apparent in the Leifer case for her alleged victims. </p>
<p>Leifer fled to Israel in 2008 when allegations first surfaced publicly. Israeli police arrested her in 2014 following Australia’s 2013 extradition request. However, she was later bailed. She has claimed to be too unwell to attend multiple subsequent hearings and over 30 psychiatrists have given <a href="https://www.timesofisrael.com/alleged-serial-pedophile-malka-leifer-ordered-released-to-house-arrest/">various reports</a> of her mental health. </p>
<p>In 2018, Leifer was again jailed when it emerged she had been living and socialising normally in an orthodox Israeli settlement. This week, she was <a href="https://www.abc.net.au/news/2019-10-03/malka-leifer-bail-backlash-israeli-court-labelled-a-farce/11570144">again bailed</a> into house arrest with her sister.</p>
<p>Israel’s Deputy Health Minister has been accused of <a href="https://www.news.com.au/world/middle-east/accused-paedophile-principal-malka-leifer-on-bail-in-israel/news-story/7be62bacef2adc1ac9979b9d33827c2d">altering medical records</a> to insure against Leifer’s extradition. </p>
<p>Attorney-General Christian Porter has committed to personally raising the case when he visits Israel this year. He said this week the lack of progress towards Leifer’s extradition is “<a href="https://www.smh.com.au/politics/federal/pm-called-to-intervene-in-extradition-of-accused-paedophile-malka-leifer-from-israel-20191003-p52x7t.html">regrettable</a>”, considering Australia lodged its request with Israel in 2013. </p>
<p>Indeed, the <a href="https://www.theaustralian.com.au/nation/victims-blast-pedophile-principal-malka-leifers-parole-bid/news-story/84dec0107764f5d4d7c8bb442a92d0f7">substantive issues</a> in Australia’s extradition request have not yet been addressed at all in the Israeli courts. A December hearing will determine if Leifer is mentally fit to face trial. </p>
<p>Dassi Erlich, one of Leifer’s alleged victims, <a href="https://www.facebook.com/bringleiferback/posts/933495463681702">called the latest decision</a> to release Leifer “intolerable” and reported it was a “massive betrayal of justice” that “left us reeling”. </p>
<p>Should Leifer eventually face extradition proceedings in an Israeli court, some special features will apply under Israeli law. The court must determine a clear case exists against Leifer to permit extradition. Israel may also require Australia to stipulate it will <a href="https://www.justice.gov.il/En/Units/StateAttorney/DepartmentInternational/Pages/Extradition.aspx">return Leifer to Israel</a> to serve any term of imprisonment.</p>
<h2>Extradition is inherently political</h2>
<p>At any given moment, cases around the world highlight the deeply politicised nature of extradition. </p>
<p>Australian national Julian Assange, now serving a prison sentence in England for parole violations, will face likely extradition to the United States once that term ends. His lawyers will surely argue that he would face a <a href="https://theconversation.com/julian-assange-has-refused-to-surrender-himself-for-extradition-to-the-us-what-now-116173">political prosecution</a> in the US. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/julian-assange-has-refused-to-surrender-himself-for-extradition-to-the-us-what-now-116173">Julian Assange has refused to surrender himself for extradition to the US. What now?</a>
</strong>
</em>
</p>
<hr>
<p>Meanwhile, in Hong Kong, mass protests have <a href="https://www.bloomberg.com/graphics/hong-kong-protests-timeline/">continued</a> for almost five months. The spark for the protest movement was an attempt by the the Special Administrative Region government to amend its extradition law and <a href="https://theconversation.com/hong-kong-protests-against-extradition-bill-spurred-by-fears-about-long-arm-of-china-118539">permit extradition</a> to Taiwan and mainland China.</p>
<p>Australia and all countries must tread carefully when managing extradition requests or amending extradition laws. When problems arise, they reveal the frustration inherent in a system that relies on good will and cooperation between countries. </p>
<p>International law supposes that cooperation is a shared and essential goal. Yet domestic political concerns so often trump good intentions.</p><img src="https://counter.theconversation.com/content/124637/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Amy Maguire is a member of Amnesty International. </span></em></p>Extradition laws are based on the idea that offenders, or alleged offenders, should not be able to evade justice by fleeing to another country. But the case of Malka Leifer shows just how difficult that can be.Amy Maguire, Associate Professor, University of NewcastleLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1191632019-06-23T19:49:40Z2019-06-23T19:49:40ZDan Tehan wants a ‘model code’ on free speech at universities – what is it and do unis need it?<figure><img src="https://images.theconversation.com/files/280631/original/file-20190621-149827-qai58y.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">An independent review found there was no freedom of speech crisis at universities, but it recommended a model code of conduct.</span> <span class="attribution"><span class="source">from shutterstock.com</span></span></figcaption></figure><p>The federal education minister, Dan Tehan, has <a href="https://www.theaustralian.com.au/inquirer/theres-no-excuse-for-university-inaction-on-free-speech/news-story/e6241998b41a28c01507dfe2a4d2ff09">called on universities</a> to implement a model code to protect freedom of speech and academic freedom on campus. He’s referring to the code drafted by a former High Court chief justice, Robert French, in <a href="https://ministers.education.gov.au/tehan/review-university-freedom-speech">his review</a> of freedom of speech in Australian universities.</p>
<p>Tehan said he commissioned the review due to concerns <a href="https://www.2gb.com/minister-announces-sweeping-inquiry-into-freedom-of-speech-at-universities/">certain views</a> were being shut down on campus. This followed <a href="http://honisoit.com/2018/09/protest-breaks-out-at-controversial-bettina-arndt-talk/">protests at Sydney University</a> during a talk by sex-therapist and commentator Bettina Arndt. The talk challenged notions of a rape culture on campus.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1139684694935527425"}"></div></p>
<p>French’s <a href="https://docs.education.gov.au/system/files/doc/other/report_of_the_independent_review_of_freedom_of_speech_in_australian_higher_education_providers_march_2019.pdf">report concluded</a> there was no systemic free speech crisis in Australian universities. But he noted many universities’ policies use broad terms that create the potential to limit free speech on campus. </p>
<p>He therefore suggested universities voluntarily strengthen their protections for free speech by adopting general principles, which he set out in a model code. So, what does that code look like? And should universities be adopting it?</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/special-pleading-free-speech-and-australian-universities-108170">Special pleading: free speech and Australian universities</a>
</strong>
</em>
</p>
<hr>
<h2>What is the model code?</h2>
<p>French’s proposed model code has, at its core, the need to ensure both the freedom of lawful speech and academic freedom. French differentiates between the two, which he says are <a href="https://pursuit.unimelb.edu.au/articles/it-s-complicated-academic-freedom-and-freedom-of-speech">often conflated</a>. He writes:</p>
<blockquote>
<p>The proposed Code uses the terms ‘freedom of speech’ and ‘academic freedom’ instead of ‘freedom of intellectual inquiry’. They are intended to distinguish between freedom of speech as a common societal freedom and freedom of speech and intellectual inquiry as aspects of academic freedom. </p>
</blockquote>
<p>The code also makes clear a university can restrict free speech and academic freedom if this is necessary to achieve the university’s core research and teaching mission, to comply with legal duties and to “foster the well-being of students and staff”.</p>
<p>This last element includes that universities have a duty to protect staff and students from discrimination. This acknowledges that a person’s freedom of speech stops when it starts to infringe on another’s rights.</p>
<p>The model code recognises that universities’ duties include preventing staff and students using lawful speech in a way that would be regarded as “likely to humiliate or intimidate” others. This provides quite a generous scope for universities to prevent discriminatory and vilifying speech, even if it would not meet the legal threshold for vilification under <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/rda1975202/s18c.html">federal</a> law or state law <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/aa1977204/s20c.html">such as in NSW</a>.</p>
<p>The code recognises that academic freedom can be limited by reasonable requirements about course content and pedagogy (although offensive or shocking material that is otherwise compliant is protected by academic freedom). </p>
<p>Finally, the model code turns to concerns that have <a href="https://www.afr.com/news/policy/health/academic-freedom-is-not-in-crisis-20190329-p518us">dominated media headlines</a> and motivated the inquiry – hosting controversial speakers. </p>
<p>In this respect, the code:</p>
<ul>
<li>protects universities’ ability to set the conditions under which external speakers will use their facilities, including paying for security costs</li>
<li>requires universities to seek to minimise the impact of donors and other third parties on staff and students’ free speech and academic freedom</li>
<li>respects universities’ ability to deny speakers a platform if their content is unlawful, or prevents the university from fulfilling its duty to foster staff and student well-being, or if it involves </li>
</ul>
<blockquote>
<p>the advancement of theories or propositions which do not meet scholarly standards […] and would be […] “detrimental to the university’s character as an institution of higher learning”.</p>
</blockquote>
<p>It could be said, then, that these protections <a href="https://theconversation.com/theres-no-need-for-the-chicago-principles-in-australian-universities-to-protect-freedom-of-speech-107001">reflect the existing state of affairs</a> on Australian campuses. Although universities, their staff and students all stand to benefit from clarifying obscure policy language, the pressure for universities to take action may be more about politics than anything else. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/we-need-to-talk-about-the-actual-threats-to-academic-freedom-on-australian-campuses-108596">We need to talk about the actual threats to academic freedom on Australian campuses</a>
</strong>
</em>
</p>
<hr>
<h2>What are universities doing?</h2>
<p>In response to the French report, Universities Australia’s chief executive, Catriona Jackson, said universities would consider its recommendations. She also emphasised universities’ independence, <a href="https://www.smh.com.au/politics/federal/no-freedom-of-speech-crisis-universities-welcome-inquiry-conclusion-20190406-p51b">saying</a> that:</p>
<blockquote>
<p>[…] sector-wide legislative or regulatory requirements would be aimed at solving a problem that has not been demonstrated to exist and any changes could conflict with fundamental principles of university autonomy. </p>
</blockquote>
<p>The <a href="https://www.theage.com.au/national/victoria/university-of-melbourne-policy-sets-limits-to-free-speech-on-campus-20190619-p51z7c.html">University of Melbourne</a> has, in recent days, released a new policy on free speech, which is <a href="https://policy.unimelb.edu.au/MPF1342">substantially similar</a> to the model code. It begins from the presumption free speech, academic freedom and university autonomy are all “core values”. It limits free speech that “unreasonably disrupts activities or operations of the university […] or jeopardises the physical safety of individuals”. </p>
<p>But it arguably goes further in permitting limitations on speech that “undermines the capacity of individuals to participate fully in the University”. </p>
<p>This provision is particularly interesting. At first it appears similar to the model code’s duty of the university to foster student and staff well-being, but the code requires the university to prevent discriminatory harms. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1141437054154203136"}"></div></p>
<p>By contrast, the University of Melbourne’s policy suggests an affirmative duty for members of the university community to support one another’s capacity for full engagement in university life. This is possibly a more positive understanding of the freedom than encapsulated by the model code.</p>
<p>Finally, and illustrating the complexity of these issues, Melbourne’s new policy links to other detailed university policies that regulate <a href="https://policy.unimelb.edu.au/MPF1328">workplace behaviour</a>, <a href="https://policy.unimelb.edu.au/MPF1324">student conduct</a>, <a href="https://policy.unimelb.edu.au/MPF1115">university facilities</a>, <a href="https://policy.unimelb.edu.au/MPF1314">acceptable use of IT</a>, and <a href="https://policy.unimelb.edu.au/MPF1224">academic freedom</a>. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/theres-no-need-for-the-chicago-principles-in-australian-universities-to-protect-freedom-of-speech-107001">There's no need for the 'Chicago principles' in Australian universities to protect freedom of speech</a>
</strong>
</em>
</p>
<hr>
<p>The University of Sydney has <a href="https://www.smh.com.au/education/sydney-university-to-adopt-principles-of-terrific-free-speech-code-20190619-p51zd3.html">also announced</a> plans to “thoughtfully” implement the principles of the model code. It remains to be seen how this will play out.</p>
<p>The university <a href="https://www.smh.com.au/politics/federal/students-given-green-light-to-protest-after-university-dismisses-free-speech-concerns-20190604-p51ueo.html">recently concluded</a> its investigation into the protests against Arndt, disciplining one student while also reinforcing that protests are protected speech. </p>
<p>Focusing on policies is only part of the story. As French stated:</p>
<blockquote>
<p>A culture powerfully predisposed to the exercise of freedom of speech and academic freedom is ultimately a more effective protection than the most tightly drawn rule. A culture not so predisposed will undermine the most emphatic statement of principles.</p>
</blockquote>
<p>We could not agree more.</p><img src="https://counter.theconversation.com/content/119163/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Katharine Gelber has received funding from the Australian Research Council and the Academy of Social Sciences Australia.</span></em></p><p class="fine-print"><em><span>Kristine Bowman does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The pressure for universities to take action on free speech may be more about politics than anything else.Katharine Gelber, Professor of Politics and Public Policy, The University of QueenslandKristine Bowman, Professor of Law, Michigan State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1151432019-05-03T05:20:00Z2019-05-03T05:20:00ZIssues that swung elections: Tampa and the national security election of 2001<figure><img src="https://images.theconversation.com/files/271658/original/file-20190430-194620-1fbunak.jpg?ixlib=rb-1.1.0&rect=14%2C16%2C1572%2C1432&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Front pages from Australian newspapers covering terrorist attacks on the United States. </span> <span class="attribution"><a class="source" href="https://photos.aap.com.au/search/2001%20australia%20terrorist?q=%7B%22pageSize%22:100,%22pageNumber%22:1%7D">AAP Image</a></span></figcaption></figure><p><em>With taxes and health care emerging as key issues in the upcoming federal election, we’re running a series this week looking at the main issues that swung elections in the past, from agricultural workers’ wages to the Vietnam War. Read other stories in the series <a href="https://theconversation.com/au/topics/issues-that-swung-elections-69985">here</a>.</em></p>
<hr>
<p>The 2001 Australian federal election was a remarkable contest. Widely expected to see the Howard coalition government lose office after two lacklustre terms, the Tampa refugee crisis and the September 11 terrorist attacks in the United States allowed the government to turn its political fortunes around. </p>
<p>Winning a presumed unwinnable election on the back of a strong national security agenda gave Howard’s team renewed impetus and assured its place in history. It fundamentally reshaped Australia’s political culture.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/leaders-try-to-dodge-them-voters-arent-watching-so-are-debates-still-relevant-115456">Leaders try to dodge them. Voters aren't watching. So, are debates still relevant?</a>
</strong>
</em>
</p>
<hr>
<p>The Howard government had rocky start to 2001. It had won the 1998 GST election, but failed to gain a majority of the popular vote. Resentment over the GST remained strong. Ultraconservative voters were turning to Pauline Hanson’s One Nation Party, and Newspoll <a href="https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp0102/02rp11#app3">surveys</a> showed the Coalition’s approval ratings trailing Labor’s (39 to 45).</p>
<p>Conservative governments fell in Western Australia and the Northern Territory, and voter support for the coalition parties collapsed in the Queensland state election. The loss of the once safe seat of Ryan, and the leaking of a report by the Liberal Party president stating that the Coalition was <a href="https://www.heraldsun.com.au/tablet/former-liberal-chief-shane-stone-speaks-out-over-mean-memo-given-to-john-howard/news-story/353b85ba891095d60d3a9734255f8d75">mean, tricky and out of touch</a>, added fuel to the fire. Most political analysts agreed that the government was doomed. </p>
<h2>The Tampa crisis</h2>
<p>Howard tried to stem the flow, and victory in a byelection in the Victorian seat of Aston in July suggested some progress. But, the real circuit-breaker came in August, with <a href="https://theconversation.com/australian-politics-explainer-the-mv-tampa-and-the-transformation-of-asylum-seeker-policy-74078">the Tampa crisis</a>. Those dramatic events saw the arrival of a Norwegian tanker in Australian waters – and the refusal of the Howard government to accept the passengers seeking asylum – give birth to the infamous “Pacific Solution”. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/271655/original/file-20190430-194633-1efbah5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/271655/original/file-20190430-194633-1efbah5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/271655/original/file-20190430-194633-1efbah5.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/271655/original/file-20190430-194633-1efbah5.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/271655/original/file-20190430-194633-1efbah5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/271655/original/file-20190430-194633-1efbah5.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/271655/original/file-20190430-194633-1efbah5.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Asylum seekers wait on board the MS Tampa after being denied entry to Australian waters.</span>
<span class="attribution"><a class="source" href="https://photos.aap.com.au/search/tampa%20boat?q=%7B%22pageSize%22:100,%22pageNumber%22:1%7D">Wallenius Wilhelmsen/AAP</a></span>
</figcaption>
</figure>
<p>What followed was a highly politicised and militarised <a href="https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Former_Committees/maritimeincident/report/c01">response</a> to the “problem” of unauthorised maritime arrivals. This included the excising of islands from Australia’s migration zone in order to prevent asylum-seekers making visa applications, the legalisation of offshore processing, the removal of boats from Australian territorial waters by the navy, and the co-opting of Pacific nations like Nauru and Papua New Guinea into offshore detention management programs.</p>
<p>Some commentators have interpreted <a href="https://theconversation.com/australian-politics-explainer-the-mv-tampa-and-the-transformation-of-asylum-seeker-policy-74078">Howard’s Tampa battle</a> as pure political opportunism. But, this ignores the evidence that his government was already primed for a fight on border control. After <a href="https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1617/Quick_Guides/BoatTurnbacks">low levels of boat arrivals</a> for most of the 1990s, they rose to 3,721 in 1999, declined slightly in 2000 then rose significantly again in 2001 to 5,516. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/fixing-the-gap-between-labors-greenhouse-gas-goals-and-their-policies-115550">Fixing the gap between Labor's greenhouse gas goals and their policies</a>
</strong>
</em>
</p>
<hr>
<p>Concern for the irregular boat arrivals began to build. This was made visible by increasingly strident public discourse and tough border control measures, like the Border Protection Legislation Amendment Act 1999 and Migration Legislation Amendment Act 1999. The treatment of asylum-seekers caught in indefinite mainland detention was a source of constant media attention and political embarrassment for the government. </p>
<p>Tampa was Howard’s line in the sand. It profoundly challenged his commitment as leader to the protection of national security and sovereignty. It confirmed his affinity with the mood and aspirations of the Australian people – a bond powerfully articulated in his <a href="https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id:%22library/partypol/1178395%22">declaration</a> that: </p>
<blockquote>
<p>We will decide who comes to this country and the circumstances in which they come. </p>
</blockquote>
<p>As a seasoned politician, Howard also recognised Tampa’s electoral potential. From the beginning, his government was willing to politicise the issue. Labor’s evident ambiguity towards the Border Protection bills – agreeing, then refusing to support the Coalition’s legislation, and finally buckling under political pressure – was seen as “wishy-washy”. <a href="https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;db=CHAMBER;id=chamber/hansardr/2001-09-19/0034;query=Id:%22chamber/hansardr/2001-09-19/0000%22">Claims were made</a>
in parliament that Labor was prepared to put the interests of people smugglers and “illegal immigrants” ahead of Australians.</p>
<h2>September 11</h2>
<p>Within weeks of Tampa, catastrophic terrorist attacks took place in the United States. Howard, in Washington DC at the time, was deeply affected and invoked the 50-year-old ANZUS treaty in support of its ally. </p>
<p>By October, when the <a href="https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp0102/02rp11#app3">election</a> was called, the public mood had changed. Polls showed the Coalition’s approval ratings now at 50%, compared to Labor’s 35%. Howard’s personal rating was at a five-year high of 61%.</p>
<p>Incumbents enjoy advantages in campaigns. Nevertheless, <a href="https://trove.nla.gov.au/work/9862161?selectedversion=NBD23251549">the Howard government’s political mastery</a> was evident in its ability to reframe the election as a referendum on national security. It created a link between the twin “threats” of terrorism and asylum-seekers in the public’s mind, and asserted its superior national security credentials. </p>
<p>The ALP campaigned well on some issues, but failed to provide a convincing counter-narrative to Howard’s agenda. Howard repeatedly pointed to Opposition Leader Kim Beazley’s ambivalence over the Pacific Solution as proof that he <a href="https://www.theage.com.au/national/beazleys-inner-demons-have-a-lot-to-answer-for-20030701-gdvyv1.html">lacked the “ticker”</a> to be prime minister. </p>
<p>Evidence that the government manipulated the facts surrounding the scandalous “<a href="https://www.smh.com.au/national/credibility-overboard-20011108-gdf9oq.html">children overboard</a>” affair did not curb the popular view that dangerous times demanded strong leadership. In the end, <a href="https://www.abc.net.au/elections/federal/2004/guide/summary.htm">the government was re-elected</a> on November 10 with a swing of almost 2%, though barely any seats changed hands.</p>
<h2>National security still on the agenda</h2>
<p>The 2001 election changed Australia. It sealed Howard’s reputation as a strong leader, and gave him six more years in office. Success legitimated his hawkish outlook, and set the policy agenda for almost two decades. Australian troops, already committed to the conflict in Afghanistan as part of the US-led War on Terror, became ensnared in the illegal Iraq war.</p>
<p>Stringent anti-terrorism laws enhanced executive power, undermined civil liberties and alienated Muslim-Australians. Refugees, terrorism and national security remained major issues for both parties, but Labor struggled to establish its own agenda. Legislation to prevent irregular boat arrivals <a href="https://www.smh.com.au/national/the-boat-that-changed-it-all-20110819-1j2o2.html">hardened into</a> one of the harshest asylum-seeker regimes in the world, polarising public opinion.</p>
<p>Have the dynamics of that political contest dissipated? </p>
<p>In the current campaign, healthcare, climate change and economics have dominated, but the lure of “national security” for electoral advantage is <a href="https://www.theaustralian.com.au/nation/politics/morrison-sets-test-for-shorten-over-security/news-story/9e50b332be28ac466871631c57d8b932">still difficult to resist</a>. </p>
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Read more:
<a href="https://theconversation.com/state-of-the-states-more-preference-deals-as-pre-polling-begins-116364">State of the states: more preference deals as pre-polling begins</a>
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<p>Many of the policy and political priorities established in 2001 remain intact. Both major parties are committed to offshore processing, mandatory detention and push-backs as deterrent mechanisms for asylum seekers. The fact that <a href="https://www.refugeecouncil.org.au/operation-sovereign-borders-offshore-detention-statistics/2/">915 refugees and asylum-seekers</a> are still languishing on Nauru and Manus Island, confirm that politics, not pragmatism or human rights, still shapes Australian asylum-seeker policy. </p>
<p>The fight against terrorism continues. Extreme right-wing political movements are growing, emboldened by the the politics of hate unleashed in 2001. It is almost 20 years since Tampa and 9/11, but those events continue to cast their shadow over the Australian political landscape.</p><img src="https://counter.theconversation.com/content/115143/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Gwenda Tavan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The 2001 federal election was a watershed moment for Australian national security that has set a policy agenda for almost two decades.Gwenda Tavan, Associate Professor, Politics and International Relations, La Trobe UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1104972019-02-06T19:12:01Z2019-02-06T19:12:01ZWhat is Islamic dispute resolution and why is it controversial in Australia?<figure><img src="https://images.theconversation.com/files/256049/original/file-20190129-42594-mblzyt.jpg?ixlib=rb-1.1.0&rect=2%2C8%2C995%2C652&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Australian Muslims are divided on whether women will get a fair deal under Islamic dispute resolution if it is implemented here.</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/two-british-muslim-women-friends-meeting-588826037">from www.shutterstock.com</a></span></figcaption></figure><p>Islamic dispute resolution involves resolving disputes without going to court and is similar to alternative dispute resolution, or ADR.</p>
<p>But Islamic dispute resolution has been controversial. Australia’s Muslim community is divided on whether it should be used here, its potential risks and benefits, and how it would sit with Australian law.</p>
<p>Why would an established form of mediation be so controversial? And what are the issues with implementing it in Australia?</p>
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Read more:
<a href="https://theconversation.com/explainer-what-is-sharia-law-and-does-it-fit-with-western-law-31972">Explainer: what is 'sharia law'? And does it fit with Western law?</a>
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<h2>Remind me again, what is dispute resolution?</h2>
<p>The form of dispute resolution typically used in Australia, ADR, usually involves an independent third party helping parties to resolve matters without involving courts. Alternatively, it may involve negotiation between parties and their lawyers without a third party. </p>
<p>It’s encouraged because it is an efficient method of resolving disputes. Parties can save money and time and reduce the stress involved with court proceedings. It’s often referred to as <a href="https://www.lawreform.vic.gov.au/sites/default/files/Chapter+4,+Chapter+5.pdf">appropriate dispute resolution</a>. </p>
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Read more:
<a href="https://theconversation.com/do-you-need-your-day-in-court-the-evolution-of-dispute-resolution-4573">Do you need your day in court? The evolution of dispute resolution</a>
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<p>ADR traditionally consists of negotiation, mediation, conciliation and arbitration. In both domestic and international arbitration, the final decision is binding. Negotiation, conciliation and mediation result in non-binding decisions. </p>
<p>In the field of international commercial arbitration, only commercial matters between international parties can be the subject of arbitration, as opposed to family, criminal or civil matters.</p>
<h2>What about Islamic law?</h2>
<p>Similarly, Islamic law encourages disputes to be resolved outside court through <em>tahkim</em> (arbitration) or <em>sulh</em> (mediation). The dispute resolution processes in Islam are part of a larger Islamic legal framework, known as Islamic law or Shariah. </p>
<p>There are two main primary sources of Islamic law. The first is the Quran, which is the holy book for Muslims. The second is the hadith, which are written collections recording the actions and sayings of the Prophet Muhammad (<em>Sunna</em>). Islamic law is also divided into different schools of jurisprudence and varying interpretations.</p>
<p>International commercial arbitration can also be subject to Islamic law. The Asian International Arbitration Centre has developed <a href="https://www.aiac.world/Arbitration-i-Arbitration">i-Arbitration rules</a> (“i” signifies compliance with Islamic law). This caters for international parties who are interested in resolving their disputes through Islamic procedures. </p>
<p>For example, an arbitrator may choose not to include interest (<em>riba</em>) when determining a penalty in international commercial arbitration subject to Islamic principles. Although Islamic law encourages trade and profit, it prohibits <em>riba</em>. This prohibition is mentioned both in the Quran and the hadith and is considered an unethical and excessive gain.</p>
<p>The i-Arbitration rules are also consistent with the <a href="http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/2010Arbitration_rules.html">United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules</a>.</p>
<h2>What are the objections?</h2>
<p>In 2009, Australia’s Muslim community was divided on the issue of establishing Islamic dispute resolution tribunals. One board member of the Islamic Council of Victoria <a href="https://www.lawyersweekly.com.au/features/5387-when-religion-meets-the-law-shariah-law-in-austral">supported and advocated</a> the idea. But the <a href="https://www.smh.com.au/national/islamic-council-rejects-sharia-law-proposal-20091018-h2x9.html">Islamic Council of Victoria, as an organisation</a>, opposed it.</p>
<p>The council was afraid that misconceptions about the term “Shariah” would trigger an unhealthy debate. Another concern raised by a <a href="https://www.smh.com.au/national/islamic-council-rejects-sharia-law-proposal-20091018-h2x9.html">representative of the Islamic Women’s Welfare Council of Victoria</a> was that certain patriarchal interpretations of Islamic principles could place women at a disadvantage.</p>
<p>For example, <a href="https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/678473/6.4152_HO_CPFG_Report_into_Sharia_Law_in_the_UK_PRINT.pdf">reports</a> from the UK suggest that there have been cases where male mediators have made it more difficult for women to obtain a divorce because they believe it should be the last resort. Also, some mediators were unaware of issues such as domestic violence and other structural injustices impacting women.</p>
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Read more:
<a href="https://theconversation.com/explainer-what-islam-actually-says-about-domestic-violence-77245">Explainer: what Islam actually says about domestic violence</a>
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<p>This issue was again highlighted in the media in 2011 when the Australia Federation of Islamic Councils made a <a href="https://www.abc.net.au/news/2011-05-17/muslim-group-wants-sharia-law-in-australia/2717096">submission</a> to the federal parliament’s Committee on Multicultural Affairs calling for a recognition of certain aspects of Islamic law. </p>
<p>In response, the then federal attorney-general, Robert McClelland, very clearly <a href="https://www.theaustralian.com.au/national-affairs/muslims-use-multiculturalism-to-push-for-sharia/news-story/9d4f8502ae7eff83c8fea85c36d8c4a5">responded</a> that there was no place for Islamic law in Australia.</p>
<h2>How might it work with Australian law?</h2>
<p>However, the proposal for implementing Islamic dispute resolution and the criticisms in relation to women being at a disadvantage were not thoroughly investigated.</p>
<p>There was no clear empirical research about whether women’s rights would be infringed in Australia if it was implemented.</p>
<p>It was also unclear how Islamic dispute resolution would operate. Would it function separately from or with Australian law? And would it be part of traditional ADR or separate from it? If it did form part of traditional ADR, would mediators and arbitrators be required to go through professional training and accreditation? </p>
<h2>What can we learn from the UK?</h2>
<p><a href="http://www.matribunal.com/">Muslim Arbitral Tribunals</a> operate in the UK and are subject to the law of England and Wales; they do not operate as a parallel legal system. They determine commercial, civil, family and personal law matters. </p>
<p>Although the tribunal may arbitrate on commercial matters, the decision can only be enforced in court if it meets legal requirements under the law of England and Wales. The tribunal can also mediate family law disputes about children and domestic violence, but such decisions are not binding.</p>
<p>In 2018, an <a href="https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/678473/6.4152_HO_CPFG_Report_into_Sharia_Law_in_the_UK_PRINT.pdf">independent review</a> of these tribunals was presented to parliament. It recommended Muslim tribunals could provide women with more agency by addressing their concerns and involving them in dispute resolution procedures. Other recommendations included involving professional mediators who are aware of matters such as the rights of women to divorce, and ensuring mediators are professionals who are trained, accredited and educated about women’s rights.</p>
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Read more:
<a href="https://theconversation.com/islam-and-feminism-are-not-mutually-exclusive-and-faith-can-be-an-important-liberator-77086">Islam and feminism are not mutually exclusive, and faith can be an important liberator</a>
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<p>Researchers from the universities of Sydney and Melbourne are exploring the experiences of women, men and mediators who have used informal community processes to resolve family disputes. The <a href="http://www.ausmuslimfamlawproject.com/">Australian Research Council</a> is funding the project. It will shed light on whether Islamic dispute resolution processes will cater for issues such as domestic violence and the rights of women to divorce.</p>
<p>If the research suggests Islamic dispute resolution can operate in harmony with Australian law and provide women with agency, there is no reason why ADR should not cater for Muslims. If the operation of Muslim tribunals proves to conflict with Australian law and harm women, Muslim tribunals should not be established.</p>
<p>Regardless of the outcomes and recommendations, it is important that such discussions do not form part of a racist and Islamophobic narrative. Rather, Islamic dispute resolution should be further explored with the aim of empowering women and accommodating religious diversity.</p><img src="https://counter.theconversation.com/content/110497/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dr Maria Bhatti does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Islamic dispute resolution is a way of avoiding court but resolving disputes under Islamic law. Other countries use this approach. But is it right for Australia?Dr Maria Bhatti, Lecturer in Law, Western Sydney UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1044172018-10-31T01:12:04Z2018-10-31T01:12:04ZWe need better jury directions to ensure justice is done<figure><img src="https://images.theconversation.com/files/241770/original/file-20181023-169801-16pkjrj.jpg?ixlib=rb-1.1.0&rect=144%2C85%2C2859%2C1576&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">To avoid miscarriages of justice, we need a jury direction process that leads to maximum juror understanding.
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/symbol-law-justice-empty-courtroom-concept-465586604?src=fPW_bmhm2Ua5ie5jJzDrfg-1-74">Shutterstock</a></span></figcaption></figure><p>In a trial involving a jury, the judge gives the jury instructions on various issues including the relevant laws, trial process and evidence. In Victoria, these instructions are know as <a href="http://www.judicialcollege.vic.edu.au/eManuals/CCB/indexpage.htm">jury directions</a>.</p>
<p>Jury directions are necessary to ensure a fair trial. Juries need to understand the directions to reduce the likelihood of a miscarriage of justice, which may result in an innocent person going to prison, or even dying in systems where there is a death penalty. Equally, it could lead to a guilty person being released to commit more offences. Miscarriage of justice is by definition unjust, damaging for the participants, and reflects poorly on the justice system. </p>
<p>However, jury directions can be complex and difficult to understand, and can therefore may not fulfil their main purpose of instructing the jury. To avoid miscarriages of justice, we need a jury direction process that leads to maximum juror understanding. </p>
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Read more:
<a href="https://theconversation.com/eight-cases-from-across-history-which-still-shape-the-law-today-103466">Eight cases from across history which still shape the law today</a>
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<h2>What are the issues with jury directions?</h2>
<p>The main purpose of jury directions is to communicate with the jury about the issues mentioned above. But judges have a second hidden audience – appeal court judges – and a secondary motive, which is to avoid retrials on the grounds that the directions were not given correctly. </p>
<p>In order to ensure their jury directions are legally watertight and avoid successful appeals, judges will use language and procedures that a court or jurisdiction has previously approved. This has led to judges using legalistic processes and wordy, complex language that may be poorly understood by jurors. In practice, this second motive has come to dominate the process and <a href="http://ojs.letras.up.pt/index.php/LLLD/article/view/2865/2615">undermine the primary purpose of communicating with the jury</a>. </p>
<p>Some factors on the jury’s part may also impede communication. Jurors may have limited understanding of the legal system and legal language. They may be overwhelmed by the complexity of jury directions, making it difficult to process and retain the information. Limits on jurors’ attention spans can also be an issue, as jury directions often take several hours, during which jurors can be affected by stress, fatigue and boredom. <a href="https://works.bepress.com/nancy_marder/5/">Judges have said</a> that jurors’ attention is often lost during this. </p>
<p>The archaic dress, strange procedures, extreme formality, and hierarchy of the courtroom can confuse and intimidate jurors.</p>
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Read more:
<a href="https://theconversation.com/language-puts-ordinary-people-at-a-disadvantage-in-the-criminal-justice-system-79934">Language puts ordinary people at a disadvantage in the criminal justice system</a>
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<p>Then there is the method of communication between judge and jurors, which is overwhelmingly spoken and one-way: from the judge to the jury. The process for the jury to communicate to the judge can be onerous. In Victoria, <a href="http://www.judicialcollege.vic.edu.au/eManuals/CCB/index.htm#1283.htm">the jury communicates with the judge</a> by writing down their message and pass it to the tipstaff, the judge’s assistant, who then passes it to the judge. This places a barrier on verbal interaction and decreases communication.</p>
<h2>What can be done to improve jury directions?</h2>
<p>To judge whether jury directions have been successfully communicated, we need to ask whether the demands made by the procedures and language of the jury directions matched the capacity of the target audience. </p>
<p>Advocates for clearer legal language, known as the <a href="http://plainlanguagenetwork.org/">plain legal language movement</a>, believe that communication is enhanced if it is brief, orderly and clear (particularly not unnecessarily complex). </p>
<p>For example, take a relatively standard jury direction, given at the start of a trial, which is <a href="http://www.judicialcollege.vic.edu.au/eManuals/CCB/index.htm#1286.htm">instructing them</a> to make their decision solely on the evidence presented in the trial. The direction is 202 words long, plus an additional example, and most of the sentences are long and complex. Furthermore, it is disorganised and redundant. </p>
<p>Here is a suggested revision, made with the lawyerly help of Matthew Weatherson of the Judicial College of Victoria: </p>
<blockquote>
<p>What is evidence? </p>
<p>There are two kinds of evidence.</p>
<p>First - what the witnesses say or agree to. It is not what the lawyers suggest.</p>
<p>Second - exhibits. These are things that we will show you. I will tell you when there is an exhibit, and we will give it a reference letter or number.</p>
</blockquote>
<p>It is around one quarter the length of the original. The complexity of the language has been considerably reduced. The information has been logically re-organised. It is more orderly, briefer and clearer, and therefore more likely to be understood.</p>
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Read more:
<a href="https://theconversation.com/if-small-print-terms-and-conditions-require-a-phd-to-read-should-they-be-legally-binding-75101">If small print ‘terms and conditions’ require a PhD to read, should they be legally binding?</a>
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<p>Some other possible procedural changes are:</p>
<ul>
<li> questioning jurors about the meaning of the directions to ensure they understand them </li>
<li> having more direct interactive communication between the judge and jurors<br></li>
<li> providing written forms of the directions as well as spoken </li>
<li> making the written directions available during the trial. </li>
</ul>
<p>Currently, jury directions inadequately instruct jurors because the need to address a secondary audience, the appeal court, has overridden the needs of the primary audience, juries.</p>
<p>Perfect communication is unachievable. However, improving communication is certainly possible, and it is important to do so when so much is at stake.</p><img src="https://counter.theconversation.com/content/104417/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>John Gibbons does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Because judges have a secondary audience when issuing jury directions - appeal court judges - the language used has become too wordy and confusing. It needs to change.John Gibbons, Adjunct Professor in Linguistics, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/978472018-06-17T18:54:11Z2018-06-17T18:54:11ZGreer is right to say rape law has failings, but wrong to suggest its decriminalisation<figure><img src="https://images.theconversation.com/files/222693/original/file-20180612-182738-1hzmtyw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Among other things, Greer’s dismissal of "harm" also illustrates how misconceptions about rape inhibit prosecution.</span> <span class="attribution"><span class="source">Flickr/walnut whippet</span></span></figcaption></figure><p>Germaine Greer is a provocateur of long standing. Her <a href="https://www.theguardian.com/books/2018/may/30/germaine-greer-calls-for-punishment-for-to-be-reduced">recent comments about rape</a> enhance that reputation. </p>
<p>We accept Greer’s premise: rape law has profound and persistent failings. The #metoo movement has made vivid what rape researchers already know: <a href="http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/4906.0%7E2016%7EMain%20Features%7EKey%20Findings%7E1">rape is common</a>.</p>
<p>While <a href="http://www.abs.gov.au/ausstats/abs@.nsf/0/DA3DED213BAE8114CA257178001B6949?Opendocument">reports to Australian police have risen</a>, <a href="http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/4530.0%7E2015-16%7EMain%20Features%7ESexual%20assault%7E32">reporting</a> and <a href="https://www.crimestatistics.vic.gov.au/research-and-evaluation/publications/attrition-of-sexual-offence-incidents-across-the-victorian">conviction rates</a> remain low. Greer claims proving rape is too difficult, and rape without physical injury doesn’t warrant prosecution.</p>
<p>However, her account of the harm of rape is flawed, and her proposed solutions do not engage with the proper role of rape law within the criminal justice system. </p>
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<p>“Rape” has a legal meaning and a social meaning. </p>
<p>In law, rape centres on whether the accused knew the other person was not consenting. As illustrated by recent high-profile cases in the <a href="https://edition.cnn.com/2016/06/06/us/sexual-assault-brock-turner-stanford/index.html">US</a>, <a href="https://www.telegraph.co.uk/news/uknews/crime/11409596/Rape-consent-trial-led-to-landmark-appeal.html">UK</a> and <a href="https://www.theguardian.com/society/2017/jul/21/this-doesnt-get-to-be-over-for-me-the-case-that-put-consent-on-trial">Australia</a>, non-consent is tough to prove. Proving knowledge of non-consent in the face of gendered expectations about sexual behaviour can be even more difficult.</p>
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Read more:
<a href="https://theconversation.com/rape-sexual-assault-and-sexual-harassment-whats-the-difference-93411">Rape, sexual assault and sexual harassment: what’s the difference?</a>
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<p>Greer is right to challenge the stereotype of rape involving a stranger using violence and causing physical injury. This stereotype impedes reporting and successful prosecution. Many who experience rape (as defined by law) <a href="https://www.tandfonline.com/doi/full/10.1080/01973533.2017.1398091?src=recsys">do not call that experience rape</a> even if <a href="http://journals.sagepub.com/doi/abs/10.1111/1471-6402.00103">they feel distressed, uneasy, or traumatised</a>. Many who have committed rape under the law <a href="https://onlinelibrary.wiley.com/doi/abs/10.1111/1471-6402.00030">do not recognise themselves in the stereotype of the rapist</a>.</p>
<p>Most rapes are committed by <a href="http://anrows.org.au/sites/default/files/Fast%20Facts%20-%20Violence%20against%20women%20key%20statistics.pdf">partners, ex-partners and acquaintances</a>; these happen <a href="http://www.abs.gov.au/ausstats/abs@.nsf/mf/4906.0">in the home</a> and not the stereotypical dark street.</p>
<p>Greer characterises “most rape” as “lazy … careless, insensitive”, giving the example of a husband taking his “conjugal rights” — rights the law no longer recognises.</p>
<p>However, the real difficulty for the law is not in failing to see this as rape. The absence of consent renders it rape unless the husband is believed when he says he thought his wife was consenting. Greer misses the primary reason the husband’s defence could succeed: the absence of social consensus that consent is needed in an ongoing relationship.</p>
<p>Greer’s dismissal of “harm” also illustrates how misconceptions about rape inhibit prosecution.</p>
<p>Greer calls “bullshit” on rape as a crime of violence and correctly states most rapes do not cause physical injury. However, the crime of rape focuses on bodily autonomy. The law recognises that being subjected to non-consensual sex is dehumanising. It denies the victim the human dignity of choosing who is permitted sexual access to their body and when. Greer fails to acknowledge this breach of bodily autonomy that lies at the heart of rape as a crime.</p>
<p>Speaking as a rape survivor, Greer says society wanted women to believe that rape destroyed them. But “We haven’t been destroyed, we’ve been bloody annoyed.”</p>
<p>Historically, women were men’s legal property. Sexual activity outside of marriage, including rape, ruined women’s value as property. Long after women gained legal personhood, it destroyed women’s reputation and prospects. </p>
<p>Women need to be able to report rape without believing they will be “destroyed”. We must be able to acknowledge this, without telling people who experience rape how they must or should feel. </p>
<p>The law and the social conversation about rape need to acknowledge that rape is real, common, damaging and sometimes physically violent. In doing so, we need to take care not to further traumatise survivors and foreclose stories of survival, resilience and recovery by holding out that rape is so damaging that people cannot recover from it. </p>
<p>Research bears out Greer’s assertion that <a href="http://www.svri.org/sites/default/files/attachments/2016-01-13/127.full_.pdf">rape does not destroy everyone who experiences it</a>. Recovery is real and possible. However, research also shows rape can create <a href="http://www.svri.org/sites/default/files/attachments/2016-01-13/127.full_.pdf">intense and long-lived suffering</a>. </p>
<p>Feminist activism initially demanded that rape be acknowledged as unacceptable and damaging. The #metoo movement builds on this recognition, teasing out in greater complexity the forms rape and sexual harassment can take and the harm this can cause.</p>
<p>Greer proposes reducing rape penalties in return for women being believed without giving lengthy evidence in court – a suggestion that fails to accord with procedural justice.</p>
<p>The #metoo movement also demands better criminal justice responses to rape. In response to perceived failures in criminal justice and workplace protection, women are publicly disclosing rape and sexual harassment, exposing alleged perpetrators to social and workplace sanctions and demanding these accounts be believed – but are not proposing a reduction in penalty.</p>
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Read more:
<a href="https://theconversation.com/rape-is-a-plot-device-in-western-literature-sold-back-to-us-by-hollywood-85971">Rape is a plot device in western literature, sold back to us by Hollywood</a>
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<p>The #metoo movement has shown us that women are no longer prepared to tolerate legal inaction on sexual harassment and rape. It has returned to strategies of self-help and mutual aid that feminists advocated before contemporary laws on rape and sexual harassment were won. It should not be confused with calling for rape to be decriminalised, or for rapists to be convicted without legal process. </p>
<p>On paper, rape looks like a serious crime with a heavy penalty. Yet reporting and conviction rates are so low that <a href="https://www.tandfonline.com/doi/abs/10.1080/13200968.2007.10854391">rape is virtually untouched by the criminal law</a>.</p>
<p>Most rapes never reach the police and fewer still result in a trial. If police and courts are the services offered to people who experience rape, most of them are choosing not to use those services. This suggests Greer is right when she says:
“the system [is] not working, and radical change [is] needed”.</p>
<p>If “do no harm” is the measure of success, rape law fails here too. Most <a href="https://webcache.googleusercontent.com/search?q=cache:R92yp-DNrTkJ:https://www.griffith.edu.au/__data/assets/pdf_file/0024/229443/2010-Daly-and-Bouhours-Rape-and-attrition-PUBversion.pdf+&cd=1&hl=en&ct=clnk&gl=au&client=firefox-b">rapes do not enter the legal system, let alone result in convictions</a>, and <a href="https://webcache.googleusercontent.com/search?q=cache:5GZjNQ-08QAJ:https://aifs.gov.au/sites/default/files/publication-documents/i12.pdf+&cd=3&hl=en&ct=clnk&gl=au&client=firefox-b">other choices</a> are not being made widely available.</p>
<p>Greer’s proposals would effectively decriminalise rape: a widespread, serious crime that causes profound suffering. We believe rape should remain a crime, reflecting the value we place on bodily autonomy. We should recognise the failures of the legal system as driven by persistent stereotypes about rape, society’s refusal to believe women and accept that rape occurs within relationships, and the continued preparedness to protect men who abuse women.</p>
<p>The #metoo movement has reopened discussion of the barriers to protecting women’s bodily autonomy. To accept decriminalisation of rape and normalise it, as Greer suggests, fails to recognise bodily autonomy as a key marker of humanity to which women are entitled.</p><img src="https://counter.theconversation.com/content/97847/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The author and academic makes some valid points about rape, but to decriminalise it, as she suggests, fails to recognise bodily autonomy as a key marker of humanity to which women are entitled.Kate Galloway, Associate Professor of Law, Bond UniversityMary Heath, Associate Professor, Flinders UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/944102018-05-02T04:30:35Z2018-05-02T04:30:35ZLegal precedent based on false beliefs proves hard to overturn<figure><img src="https://images.theconversation.com/files/215727/original/file-20180420-75123-1owk2e2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">False beliefs about language and speech underlie legal precedents that allow jurors to be “assisted" by unreliable transcripts of forensic audio.</span> <span class="attribution"><span class="source">The Everett Collection/Shutterstock</span></span></figcaption></figure><p><em>This article is part of an <a href="https://theconversation.com/au/topics/post-truth-initiative-38606">ongoing series</a> from the <a href="https://posttruthinitiative.org/">Post-Truth Initiative</a>, a Strategic Research Excellence Initiative at the University of Sydney. The series examines today’s post-truth problem in public discourse: the thriving economy of lies, bullshit and propaganda that threatens rational discourse and policy.</em></p>
<p><em>The project brings together scholars of media and communications, government and international relations, physics, philosophy, linguistics and medicine, and is affiliated with the Sydney Social Sciences and Humanities Advanced Research Centre (<a href="http://chcinetwork.org/sydney-social-sciences-and-humanities-advanced-research-centre-sssharc">SSSHARC</a>), the <a href="http://sydney.edu.au/environment-institute/">Sydney Environment Institute</a> and the <a href="http://sydneydemocracynetwork.org/">Sydney Democracy Network</a>.</em></p>
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<p>Judges consider their profession to be among the most accountable of those whose opinions and actions shape our society. After all, every judicial decision is presented publicly, open to the scrutiny of critical colleagues ready to appeal to a higher court if any error is detected.</p>
<p>The outcome of a criminal appeal is life-changing for the appellant. But it also has significant ramifications for the rest of us. This is because opinions expressed by judges in appeal courts gain the status of legal authority, used as <a href="https://en.wikipedia.org/wiki/Precedent">precedents</a> to guide judgments in subsequent trials.</p>
<p>This development of the law has many advantages. By ensuring consistency in trial outcomes, it contributes to fairness in the justice system. It allows practices of law and law enforcement agencies to be standardised, in confidence that rulings about admission of evidence will be applied in similar ways in similar cases.</p>
<p>However, it does have disadvantages. One troubling example is provided by the development of practices for admitting <a href="http://forensictranscription.com.au/">covert recordings</a> as evidence in court.</p>
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Read more:
<a href="https://theconversation.com/the-dark-side-of-mondegreens-how-a-simple-mishearing-can-lead-to-wrongful-conviction-78466">The dark side of mondegreens: how a simple mishearing can lead to wrongful conviction</a>
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<p>While lawyers may pounce on judges’ legal errors, <a href="https://theconversation.com/now-who-will-push-ahead-on-validating-forensic-science-disciplines-76198">errors of scientific fact are less likely to be detected</a>. Indeed, scientific errors in an appeal ruling are liable to be propagated under the mantle of legal authority <a href="http://netk.net.au/MOJHome.asp">from judgment to judgment down the years</a>. </p>
<p>This problem is exacerbated by the fact that the mantle of legal authority applies not just to the substantive decision that is the focus of the appeal, but to comments judges make in explaining their decision.</p>
<h2>What’s the problem with covert recordings?</h2>
<p>Covert recordings are conversations captured by <a href="https://en.wikipedia.org/wiki/Covert_listening_device">secret listening devices</a>. During the 1980s, increasing use of covert recordings in criminal trials raised a number of procedural problems for the law. One related to recordings featuring foreign languages. </p>
<p>It can be hard for a jury to follow examination and cross-examination of translators presenting competing opinions about speakers’ meanings. One judge decided to help by allowing translations to be provided in written form. </p>
<p>This may seem, from today’s perspective, like simple common sense. But it actually marked a significant departure from the long legal tradition that juries should hear all testimony orally. </p>
<p>That’s why the decision was appealed all the way to the High Court of Australia. It was ultimately upheld in a <a href="http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/1987/58.html">landmark judgment called <em>Butera</em></a>, back in 1987.</p>
<p>There is no reason to question the substantive decision in this particular 30-year-old case. What does raise concern is the commentary explaining the judges’ decision.</p>
<p>Among <a href="http://netk.net.au/Forensic/Forensic34.pdf">other anomalies</a>, the High Court judges called written translations “transcripts”. The effect of this is that their judgment has been taken to apply to English as well as non-English recordings. They also endorsed a range of emerging practices regarding who could create transcripts, and how they should be evaluated.</p>
<h2>What’s wrong with that?</h2>
<p>The judges in the <em>Butera</em> case, reasonably enough, based their comments on common knowledge shared by all educated people. The problem is, with language and speech, educated common knowledge includes many beliefs that linguistic science has shown to be false (collectively dubbed “<a href="https://en.wikipedia.org/wiki/Folk_linguistics">folk linguistics</a>”). </p>
<p>Some of the judges’ comments embodied these kinds of false beliefs. As a result, they created legal authority for a range of practices that <a href="https://forensictranscription.com.au/aafs-talk-14-feb-2018/">turn out to be highly problematic</a>. </p>
<p>These include, <a href="http://netk.net.au/Forensic/Forensic34.pdf">among others</a>, allowing juries listening to indistinct covert recordings to be “assisted” by a transcript prepared by detectives investigating the case. That may have seemed like a good idea at the time, but, like the practice of allowing <a href="https://theconversation.com/why-eyewitnesses-give-false-evidence-and-how-we-can-stop-them-67254">eye witnesses</a> to identify perpetrators, it has been shown to create <a href="https://forensictranscription.com.au/case-study">actual and potential injustice</a>. That’s because the power of <a href="https://theconversation.com/the-dark-side-of-mondegreens-how-a-simple-mishearing-can-lead-to-wrongful-conviction-78466">“priming” means errors in police transcripts are surprisingly unlikely to be detected</a>.</p>
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Read more:
<a href="https://theconversation.com/covert-recordings-as-evidence-in-court-the-return-of-police-verballing-14072">Covert recordings as evidence in court: the return of police ‘verballing’?</a>
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<h2>Solution isn’t as obvious as it seems</h2>
<p>The solution might seem clear: inform the judiciary that there has been a misunderstanding and let them fix it up. Turns out, <a href="https://theconversation.com/truth-or-lies-overturning-wrongful-convictions-20430">it’s not that simple</a>. </p>
<p>The recommended fix is for a new appeal case to create a better precedent. Unfortunately, in the matter of transcripts, <a href="https://forensictranscription.com.au/two-new-papers/">it hasn’t worked like that</a>. </p>
<p>Some time ago, an appeal court found a detective’s transcript to be misleading, and quashed the conviction based on it. But that was seen as a mere aberration, so the judgment is not cited as a precedent. Legal authority for the <a href="https://theconversation.com/covert-recordings-as-evidence-in-court-the-return-of-police-verballing-14072">concept that detectives’ transcripts “assist” juries</a> remains undented. Indeed, that very detective still provides transcripts for juries, <a href="https://www.tandfonline.com/doi/full/10.1080/00450618.2017.1340523">never questioned about his track record</a>.</p>
<p>So getting a new precedent is hard. And even if it happened, it wouldn’t be enough. After 30 years, practices based on <em>Butera</em> have become <a href="https://forensictranscription.com.au/two-new-papers/">entwined with other precedents and embedded in every corner of law and law enforcement</a>.</p>
<h2>Conflict or collaboration?</h2>
<p>For some, this story might evoke criticism of the law for denying scientific facts. But there’s a bit more to it.</p>
<p><a href="https://theconversation.com/post-truth-politics-and-why-the-antidote-isnt-simply-fact-checking-and-truth-87364">Countering false beliefs isn’t just a matter of telling true facts</a>. To help the law avoid false beliefs about science, scientists need to avoid false beliefs about the law, which operates under <a href="http://dl4a.org/uploads/pdf/026376.pdf">conditions and constraints</a> very different from those of the laboratory. </p>
<p>That’s why Australian linguists have offered a <a href="https://forensictranscription.com.au/a-call-to-action/">Call to Action</a>, seeking dialogue and collaboration with the judiciary. Though the solution is not immediately clear to either party, together we can figure one out. </p>
<p>After all, <a href="https://theconversation.com/navigating-the-post-truth-debate-some-key-co-ordinates-77000">facts – true, false or otherwise – are embedded in language</a>. When it comes to sorting out problems involving language, collaboration between lawyers and linguists <a href="http://www.hcourt.gov.au/assets/publications/speeches/current-justices/frenchcj/frenchcj_29Aug2015.pdf">can create good results</a>.</p><img src="https://counter.theconversation.com/content/94410/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Helen Fraser does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Not all false beliefs arise from malicious misinformation. Some legal precedents rest on the status of everyday ‘common knowledge’, since shown to be false, but embedded in our law nonetheless.Helen Fraser, Adjunct Associate Professor, University of New EnglandLicensed as Creative Commons – attribution, no derivatives.