Australian Law Reform Commission Research Articles

James Crawford and the Law of State Immunity

Abstract In James Crawford’s later career as a public international lawyer, he was synonymous with the great topics of inter-state relations—the creation of states, state responsibility, and so forth—and with the work of the International Court of Justice. But he retained throughout his professional life an abiding interest in foreign relations law, being that loose collection of issues that characterises the interface between public international and municipal law. Nowhere is this better reflected than in his contribution to the law of state immunity—and, in particular, his preparation as Commissioner of the ground-breaking 1984 Australian Law Reform Commission Report No 24 on Foreign State Immunity (‘ALRC 24’), which led in due course to the Foreign States Immunities Act 1985 (Cth) (‘FSIA’) being passed by the Federal Parliament almost unchanged from Commission’s suggested text. This paper aims to assess the legacy of ALRC 24 alongside other writings on state immunity that Crawford published prior to and in conjunction with the report—in particular his significant articles in the Australian Year Book of International Law, the American Journal of International Law and the British Yearbook of International Law. This corpus of materials shows Crawford in two underexplored guises—as municipal lawyer and legislative draftsman. And they also show his instincts as one of the great liberalisers of public international law, committed to ensuring that the parameters of the restrictive theory of state immunity, then novel to the common law, were accurately reflected in legislative language.

Class Actions and Human Rights Litigation in Australia: Realising the Potential

Most commentary and, indeed, most controversy concerning class actions in Australia has concerned shareholder class actions and how they are funded. This paper consciously changes the focus of its commentary away from such debates and towards examining human rights class actions in Australia. As Australia is the only advanced country without national constitutional or statutory protections of human rights, attempts to legally protect human rights have manifested themselves indirectly in various areas of the law that might not at first glance seem to have much to do with human rights. Class actions has been one of those legal areas. Given the paucity of existing commentary on Australian human rights class actions this paper begins with an examination of the types of cases that have been bought as human rights class actions and provides examples of them. Drawing on literature concerning the effectiveness of actions undertaken to protect human rights and on class actions protecting human rights overseas, it uses publicly available information to undertake a qualitative analysis concerning the effectiveness of such litigation. After coming to some tentative conclusions about such effectiveness, it examines whether US class actions law might be a source of ideas that could be adapted to address any such limitations of effectiveness in the same way that US class actions jurisprudence was originally drawn upon by the Australian Law Reform Commission to recommend that class actions provisions be enacted in Australia. Given the relative absence of legal norms protecting human rights in Australia as well as the relative weakness of social movements seeking greater legal protection for human rights in Australia, the search by human rights advocates for ways to access courts and obtain greater legal furtherance of human rights is a task of some urgency. This paper attempts to contribute to that search as well as to advance the analysis of Australian human rights class actions and their effectiveness more generally.

The Recent Australian Debate About Individual Liability for the Criminal Misconduct of Corporations

When should a director or manager of a company be personally liable because their company has committed a criminal offence? The question is both important and controversial because many of the laws that impose this type of liability (called deemed liability provisions) do so without the need to prove that the director or manager was personally at fault. The question has received much attention recently in Australia because of proposals by the Australian Law Reform Commission to significantly expand the circumstances when this type of liability would be imposed on directors and managers. Following much criticism, the Commission withdrew its proposals and instead called for a wide-ranging review of the effectiveness of individual accountability mechanisms for corporate misconduct – in effect calling for another inquiry. This article outlines the Commission’s proposals and their objectives. It describes the criticisms that were made of the proposals and considers the proposals in the context of prior reviews and principles applying to deemed liability provisions. It is argued that the Commission was right to withdraw its proposals as they did not reflect a proper balancing of the advantages and disadvantages of deemed liability provisions, the proposals were not well drafted, and the formulation of the proposals did not appropriately consider earlier research and inquiries on deemed liability provisions.

The standard of liability in claims for misuse of private information

ABSTRACT This article attempts to identify a standard of liability for use in claims for misuse of private information (MPI). It highlights current uncertainty over this issue following the decision of the Supreme Court in Lloyd v Google LLC. It considers whether the comments of Lord Leggatt in Lloyd are compatible with those made in earlier MPI decisions and argues that the standard applicable remains an open question. In formulating a proposed standard, the article considers issues arising under the Human Rights Act 1998 and is informed by the recommendations of the Australian Law Reform Commission in its review of Australian privacy law. It is suggested that the appropriate standard for the MPI tort ought to be one of ‘quasi-strict’ liability, meaning that liability could, in certain cases, be strict. Whether a defendant would be found to be strictly liable should be determined through the reasonable expectation of privacy test.

Would a Statutory Privacy Tort in Australia Harm Valuable Free Speech?

The Australian government is currently looking at reform of Australia’s privacy laws including the vexed question of a statutory tort for serious invasion of privacy. But would stronger protection of privacy imperil valuable speech in Australia? In this paper, five academics involved in privacy law reform argue that a tort of serious invasion of privacy, as recommended by the Australian Law Reform Commission in 2011 and endorsed by the Australian Competition and Consumer Commission in its Digital Platforms Inquiry Report, would not only have benefits in providing individuals and groups with stronger and more transparent privacy protection including vis-a-vis media. It would help to protect them from the real threat of publication of personal information which could have a “chilling effect” on those wanting to criticise government agencies and other powerful figures – i.e. privacy is here a vehicle for free speech.

Technology and the Courts: Artificial Intelligence and Judicial Impartiality

In this submission to Australian Law Reform Commission, I argue that any reforms to the laws on judicial impartiality and bias in Australia should take into account the role of technology in judicial decision-making. From digitization of court filing and administrative systems, to automation of decision-making in small claims litigation, to machine learning software in criminal sentencing, the judiciary is increasingly - or may soon be – using various technologies. Some see the technologization of the judicial role as inevitable, and call for a speedy embrace of automation by the courts to better perform their public role. However, to maintain public confidence in the administration of justice; the law reform must consider how the increasing experimentation and proposals to automate judicial decision-making, or elements of it, especially with machine learning tools, can enhance or undermine the legal system and the judiciary as a whole. In my recent work, I examined the compatibility of various automation tools with fundamental principles of justice and how they strengthen and undermine the rule of law. I also analyzed how automated systems in judicial decision-making affect judicial values to understand where the technology might go in the future and the dangers it could bring for the judicial role. In this submission, I share the most relevant insights form that work on the relationship between technology and judicial impartiality, decisional independence and bias.

The Intersection of Disadvantage and the Criminal Justice System in Australia – And Six Ways to Address This

It is well-established that trauma, lower socio-economic circumstances and educational attainment, marginalisation, drug and/or alcohol misuse, homelessness, family violence and racism are consistent factors associated with the pathways to crime and custody (Halsey 2008). The evidence is clear not only about the extensive intersection between disadvantage and the criminal justice system, but some effective ways of addressing this. This paper highlights six interconnected ways to address such disadvantage: addressing the over-representation of Indigenous peoples in the criminal justice system, including through implementation of the recommendations of the Australian Law Reform Commission Pathways to Justice report; investing in community-based options, rather than prison; raising the minimum age of criminal responsibility to 14; supporting families to stay together; providing adequate funding and support for best practice health, housing and education; and addressing sexual and family violence and the attitudes that give rise to such violence. The research on these issues is clear. What is required now is for politicians and policy-makers to act on this research to improve criminal justice outcomes and social wellbeing more generally.

Study guides and Australian documentary: The role of bridging materials in building educative, cultural and economic value

The use of documentary, and in turn the value of documentary, is well established in formal education contexts. In addition to an established pedagogical value, this article examines the cultural and economic value of documentary in education through both national legislative reviews (the Australian Law Reform Commission’s (ALRC’s) Copyright and the Digital Economy) and a specific learning resource in the form of study guides. Within this research, study guides function as a means to explore the plurality of ways in which documentary may be valued through several stakeholders invested in sustaining educational engagement with the form. Most notably among these stakeholders is copyright collection agency Screenrights, which bridges the valuing of documentary between screen and education sectors alongside national funding agency Screen Australia and the Australian Teachers of Media (ATOM), an independent, non-profit, professional association promoting the study of media in education. ATOM in particular is synonymous with the creation of study guides for documentary films. Investigating the educative, cultural and economic value of study guides offers a discrete albeit valuable study of the ways in which documentary functions within Australian education contexts.

Bringing Australia's Privacy Act Up to International Standards (Submission in Response to the Privacy Act Review - Issues Paper)

This submission to the Australian federal Attorney-General’s Departmen is by the Australian Privacy Foundation (APF), the country's leading privacy advocacy organisation, and is written by five members of its Board. It is in response to the Attorney-General’s Review of the Privacy Act 1988 (Cth) – Issues Paper. The last comprehensive review of the Privacy Act was in 2008 with the publication of the Australian Law Reform Commission Report for Your Information – Australian Privacy Law and Practice (the ALRC Report). The ALRC report recognised privacy as a human right. It also found that privacy protection should take precedence over a range of countervailing interests, such as cost and convenience. However, although the government at the time professed to accept many of the ALRC’s recommendations, and said it would introduce legislation in a number of tranches, it failed to introduce many of the most important reforms, such as removal of exemptions. APF submits that, after this Review, the government should introduce one comprehensive reform Bill, and should not resort to the subterfuge of reform in stages. Significantly, since 2008, many countries have introduced stronger privacy protections. For example, the European Union (EU) has introduced significant privacy protections in the General Data Protection Regulation (GDPR). These laws are regarded as the gold standard in best practice data protection. The GDPR commenced operation in 2016 and was fully implemented across the EU by 2018. In comparison, Australia’s privacy and data protection laws are weak and do not meet the best practice standards set by the EU and other countries. This review must be used as an opportunity to modernize and strengthen Australia’s privacy laws to meet the best practice standards set Internationally. Australia should even seek to exceed those standards and lead the world. This submission addresses almost all of the 69 issues raised by the Attorney-General’s Department in the Issues Paper. The submission also addresses many of the submissions made to the Review by Australian Information Commissioner (OAIC)... We have noted in this submission particular aspect to which we give support, and others we oppose.

“The Abuse of Older Australians (Elder Abuse)”: Reform Activity and Imperatives

ABSTRACT Significant national reform activity is occurring that concerns the abuse of older people by trusted others. This includes an Australian Law Reform Commission report entitled Elder Abuse – A National Legal Response (2017), and the adoption in 2019 of the first ever “National plan to respond to the abuse of older Australians (elder abuse)”. While service responses in this field largely exist at, and will continue to be provided at, state and territory level, this article considers current and needed reform initiatives in a field of increasing national government attention. IMPLICATIONS The adoption of the first ever national plan concerning the abuse of older people in Australia adds significant impetus and direction for reform in this key social policy area. Most service and regulatory reforms aimed at improving responses to the abuse of older people will occur at state and territory level. The breadth of likely and necessary reforms is significant, ranging from policing practices through to guardianship law reform.

Fair use and fairness in copyright: A distributive justice perspective on users' rights

Australia is once again considering how to best protect the public interest in copyright. One of the most contested current issues in Australian copyright law is the question of limits and exceptions to the rights of copyright owners. The recent Australian Law Reform Commission (‘ALRC’) review into copyright exceptions recommended broadening and simplifying the exceptions to better protect the interests of users to access and reuse copyright material for socially beneficial purposes. Despite the exhaustive consultation and report produced by the ALRC, and the support lent to it by the recent Productivity Commission Inquiry Report, there is little consensus about its recommendations. The proposal to introduce fair use is strongly contested by rightsholder groups, who are reluctant to cede further control over the use of information and cultural goods, particularly given the challenges they have faced transitioning to a digital environment.

Pathways to justice in the APY Lands: breaking the cycle of offending

ABSTRACT In 2017 the Australian Law Reform Commission released the Pathways to Justice report, an inquiry into the incarceration rate of Aboriginal and Torres Strait Islander peoples. The Commission found that ‘community reinvestment’ strategies were needed to redress the disproportionately high incarceration rates experienced by Indigenous people. Previous strategies involved attempts at pluralising the mainstream criminal justice system, such as by mandating the use of English language interpreters and Aboriginal Justice Officers. However, the example of the Anangu Pitjantjatjara Yankunytjatjara (APY) Lands demonstrates that these efforts have had limited success in curbing offending and resulting incarceration. The cultural alienation and physical dislocation of the mainstream criminal justice system from APY communities has perpetuated barriers to justice, as seen in the difficulty of accessing interpreters and the occurrence of convenience pleas. To best deliver justice, prevent recidivism and reduce incarceration in Indigenous communities, this article supports the central recommendation of the Pathways to Justice report that mainstream criminal justice resources be transferred into community-led programs.

Further Family Law Reform in Australia: Charting the Way Ahead

This paper provides some background to the final report of the Australian Law Reform Commission on reforms to family law and reviews some of the key recommendations. It is argued that while simplification of Part VII of the Act, concerning parenting after separation, will be beneficial, no case has been made out for the wholesale abandonment of the 2006 reforms. The law has an educative role, particularly for those who need some assistance from lawyers and mediators in order to agree upon parenting arrangements. The proposed property reforms are modest, and do not go far enough to inject some principle, coherence and order into the law; however, they are a good start. Some refinements are proposed. The case management proposals have real potential to address unethical adversarial conduct by a minority of lawyers. It is argued that it is important that the family law profession engage constructively with the proposals. The position that few if any reforms are needed is an untenable one. Working to implement beneficial change will be better than having less well-thought out proposals thrust upon the profession.

Protecting Religious Freedom in a Human Rights Act

The legal protection of religious freedom in Australia has been subject to significant debate over recent years. In the last four years this question has formed the basis of inquiries by the Australian Law Reform Commission, a Parliamentary Committee, as well as a specially formed Expert Panel, chaired by Philip Ruddock. In this article we outline the international and comparative approach taken to protect freedom of religion, and contrast this to the position in Australia. We find that Australian law does not adequately protect this foundational human right. We then assess the recommendations proposed by the Ruddock Review. We argue that although the Expert Panel recognised the extent of the problem, it did not propose a comprehensive or holistic solution that will resolve existing inadequacies. To protect religious freedom, and indeed human rights more generally, the Commonwealth Parliament should enact a national human rights act

An examination of organisational policies for healthcare and lifestyle decision-making among Australian aged care providers.

Examine policies of aged care organisations relating to healthcare and lifestyle decision-making. Seven aged care organisations submitted policy documents. Policies were analysed using the Australian Law Reform Commission (ALRC) "Decision-Making Principles" as a framework. Senior staff (N=9) with policy development roles participated in follow-up interviews. The structure and content of policy documents varied significantly between organisations. Most acknowledged the need to support the rights of care recipients in decision-making; however, the nature of this support was often unclear. Interview themes included factors relating to "organisational contexts" "policy development and implementation" and "ethical challenges." An overarching theme among high-performing organisations was "proactive response aimed at pre-empting decision-making dilemmas". We provide recommendations for policy development, including a self-assessment audit tool. Aged care provider organisations may need to review policies in the areas of healthcare and lifestyle decision-making to meet current best practice principles.

Cultural accommodation and the policing of Aboriginal communities: A case study of the Anangu Pitjantjatjara Yankunytjatjara Lands

The relationship between Aboriginal communities and police continues to be a pressing issue in contemporary debates about criminal justice reform in Australia. The Australian Law Reform Commission’s recent Pathways to Justice report offers a set of recommendations on how to interrupt the continuing cycle of Aboriginal people’s disproportionate susceptibility to arrest, police custody, and incarceration. Many of its recommendations are grounded in the principle of building more systematic forms of cultural accommodation and community collaboration into the culture of policing. Some of these principles are already adopted by Australian police authorities in programmes such as the employment of Aboriginal police liaison officers, the inclusion of cultural awareness education in the training of law enforcement personnel, and the guarantee of interpreter services. Focusing upon the Anangu Pitjantjatjara Yankunytjatjara Lands and drawing upon the reported experiences of Anangu with police, this article examines the extent to which such reforms have transformed Aboriginal/police relations and worked to incorporate cultural difference into the culture of contemporary policing. While none of the policing issues discussed here are unique to the Anangu Pitjantjatjara Yankunytjatjara Lands, the geographical remoteness of the Lands and the diversity of their communities combine to establish a unique set of policing challenges. Having considered existing strategies to meet these challenges, the article concludes that Aboriginal people’s fuller access to justice requires deeper structural reform to the culture of policing than is yet available.

Becoming activist: the mediation of consumers in Animals Australia’s Make it Possible campaign

In 2008, the Australian Law Reform Commission journal, Reform, called out animal welfare as Australia’s ‘next great social justice movement’ in 2018; however, public mobilisation around animal welfare is still a contested issue in Australia. The question stands as to how to mobilise everyday mainstream consumers into supporting animal activism given that animal activism is presented in the public sphere as dampening the economic livelihood of Australia, with some animal activism described as ‘akin to terrorism’. The questions, then, are as follows: how to mobilise everyday mainstream consumers into supporting animal activist ideals? How to frame and communicate animal activist ideals so that they can come to inform and change the behaviour and self-understandings of mainstream consumers? This article is an investigation into the possible production and mobilisation of animal activists from mainstream consumers through the work of one digital campaign, Make it Possible. Delivered by the peak Australian animal advocacy organisation, Animals Australia, and explicitly targeting the lived experiences and conditions of animals in factory farming, Make it Possible reached nearly 12 million viewers across Australia and has directly impacted on the reported behaviour and self-understandings of over 291,000 Australians to date, as well as impacting policy decisions made by government and industry. More specifically, our interest is to engage a new materialist lens to draw out how this campaign operates to transform consumers into veg*ns (vegans/vegetarians), activists and ethical consumers who materially commit to and live revised beliefs regarding human–animal relations.

An Evidence-Based Approach to Class Action Reform in Australia: Closed Class Actions, Open Class Actions and Access to Justice

In May 2018 the Australian Law Reform Commission (“ALRC”) released a discussion paper on class action proceedings and third party litigation funders. It contained the proposal that the federal class action legislation should be amended to provide that all federal class actions should be initiated as open class actions. I have reviewed the descriptions of represented groups - provided in the originating applications and statements of claim - with respect to all the federal class actions filed before 30 September 2018. In this report I will provide some of the major data and findings that have emerged from this review, in the hope that it will be of some assistance - to the ALRC, the Commonwealth Attorney-General and/or other interested persons and entities - in determining whether the ALRC’s proposal, that all federal class actions should be commenced as open class actions, should be retained in the ALRC’s final December 2018 report and, if so, in identifying the major issues and challenges that will need to be addressed in implementing this recommendation as well as its likely impact.

Continuous Disclosure Class Actions – Stemming the Flow

This paper suggests that shareholder class actions founded on a failure of the issuer to comply with the continuous disclosure requirements impose significant and unwarranted costs on the market as a result of the material ‘leakage’ they create in the circle of shareholder wealth. The problem is exacerbated by the aspirational nature of the continuous disclosure requirement and the inherent uncertainty in the form of the rule. It is the ambiguity inherent in the rule that has attracted promoters of shareholder class actions to the provision in numbers that dwarf ASIC’s interest in compliance with the provision. Whilst it is accepted that shareholder class actions founded on the continuous disclosure requirements have the potential to encourage compliance are they the best way to achieve that objective? This paper explores three alternative means to stem the flow of capital caused by continuous disclosure based class action claims: a Market Disclosure Panel, re-introduction of fault elements into shareholder compensation actions or the development of a disclosure judgement rule each of which could be considered in the subsequent work of the Australian Law Reform Commission in its Inquiry into Class Action Proceedings and Third-Party Litigation Funders.

An Evidence-Based Approach to Class Action Reform in Australia: Competing Class Actions and Comparative Perspectives on the Volume of Class Action Litigation in Australia

2018 is the most crucial year for the future of class actions in Australia. The Victorian Government is currently considering a report on the litigation funding industry and certain aspects of Victorian class actions recently completed by the Victorian Law Reform Commission. The Australian Law Reform Commission will be completing in December 2018 its review of litigation funders and certain aspects of the federal class action regime. Empirical data is required to ensure that these reviews, and the assessment of the recommendations that come out of these reviews, are based on an accurate understanding of Australia's class actions landscape. This is the main aim of this and other empirical reports that will be released over the next 12 months.