The High Court’s 2024 constitutional law term was in the shadow of two major constitutional decisions handed down in late 2023. There were no moments of great rupture, and instead the Court had to come to grips with, and work out the implications of, its decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs and the extent of the protections offered by Chapter III. In considering the 2024 constitutional law term, this article looks at how the High Court navigated both continuity and change. It does this by considering the extent to which the Court looks outwards to the world (the present), the extent to which it draws on history and precedent (the past), and finally the question of constitutional change (the future). These orientations of present, past, and future offer one way of understanding some of the deep divisions on the Court in the 2024 term.
Parliaments play a more significant role in Indigenous–State agreement-making than often acknowledged. While much attention focuses on the executive, which drives processes and negotiates settlements, Parliament is not merely a bystander. It can both actively support treaty-making and undermine processes. This article presents a typology of the roles Parliament may play before examining three case studies: British Columbia, Aotearoa New Zealand, and Victoria. In British Columbia, a parliamentary convention fosters collaboration in implementing treaties. In Aotearoa New Zealand, a long-standing political consensus on the meaning of Te Tiriti o Waitangi recently held in the face of intense contestation. In Victoria, treaty-making is nascent and politically volatile. While Parliament has played a constructive role thus far, its future is unsettled. The article contends that parliaments should see themselves as partners in reconciliation, shaping and sustaining the legal and political foundations of Indigenous–State relationships.
Trees provide shade, reduce daytime temperatures, and are a source of aesthetic delight. Since these benefits are not confined to the owner of the tree but can be enjoyed by anyone, they are examples of ‘public goods’. Because the cost of providing these goods is the value of the foregone uses of the resources required to produce them, any system of resource management should aim to create the optimum rather than the maximum number of tree-based public goods. Whilst the common law does a reasonable, if imperfect, job of achieving this aim, modern environmental regulations do not. Using New South Wales as an archetypal example, this article argues that regulatory regimes which aim to increase tree density not only produce more of these public goods than people would demand if they had to pay their true price, but also inequitably distribute the cost of doing so.
Electronic gaming machines (‘EGMs’) proliferate in disadvantaged areas of New South Wales (‘NSW’), leading to unacceptable levels of harm. Achieving meaningful reform is hampered by both government and industry prioritising their own financial interests at the expense of vulnerable people. Drawing on the recent state trial into cashless gaming, this article investigates the shortfalls of NSW’s current regulatory framework and considers what reforms are needed to better protect communities from gambling harm. Through a critical analysis of the Gaming Machines Act 2001 (NSW), we argue that current EGM regulations are inadequate and that the cashless gaming trial was misguided. We suggest pragmatic reforms are needed, adapting innovations pursued in other jurisdictions. Reforms recommended include a state-wide mandatory digital pre-commitment system, a statewide self-exclusion register, increased accessibility limits, community opt-out schemes, and adaptations of communitycontrolled income management from Cape York. Some combination of these reforms may improve outcomes for struggling communities.
Allegations of insider trading by Members of Congress receive significant attention in the United States, yet in Australia, such allegations involving Members of Parliament are much less frequently made. In this article, we aim to understand this phenomenon by comparing the laws prohibiting insider trading and their application to lawmakers in both jurisdictions. Through this comparison, we conclude that the regulatory regimes in both countries may be theoretically adequate to prohibit lawmaker insider trading, but it appears that lawmakers may still engage in insider trading. We identify obstacles that prevent effective detection and enforcement of insider trading in both the United States and Australia, namely, lawmaker immunities and inadequate financial disclosure rules. To better prevent lawmaker insider trading and maintain trust and integrity in both securities markets and political probity, we propose reforms to financial disclosure obligations and the establishment of Parliamentary Privileges and Congressional Ethics Committees.
Although the High Court of Australia is yet to recognise a doctrine of lawful act duress, this development appears likely to be only a matter of time. This article looks to the future and seeks to determine the appropriate lens through which cases of lawful act duress should be analysed, considering three models recently proposed by distinguished judges: disproportionality (Edelman J writing extra-curially with Elise Bant), bad faith (Lord Burrows), and unconscionability (Lord Hodge). It is submitted that, if lawful act duress is recognised in Australia, the test for lawful but illegitimate pressure should be whether the threatening party’s conduct was so morally reprehensible that it renders enforcement of the transaction unconscionable. Unlike the alternatives, that standard reflects the law’s approach to related doctrines and provides a unifying explanation for the recognised circumstances of lawful act duress.
For several decades, the High Court of Australia has consistently repeated that all questions concerning First Nations sovereignty are non-justiciable in Australian courts. Not surprisingly, it is widely assumed that this position is incontestable as a matter of precedent. This article calls this assumption into question by exploring the precedential value of the Court’s position, including retracing the under recognised origins in their 1979 decision of Coe v Commonwealth (‘Coe’), which remains the Court’s only appellate decision directly on this point. Closely examining Coe through the lens of precedential value offers important insights, namely: that an evenly divided Court encountered a complex set of substantive issues in an interlocutory context, based its decision on technical issues of procedure, and delivered limited reasoning on underlying substantive issues. Re-evaluating Coe’s precedential value thus raises significant questions about the doctrinal stability and durability of the Court’s current position that all questions of First Nations sovereignty are non-justiciable.
The use of medicine-including medical knowledge, personnel, and infrastructure-has become a defining feature of contemporary state immigration regimes of racial exclusion. This article theorises the concept of the 'medical border' to argue that state denials of decent health care to refugees function as a form of racialised border control, to the detriment of refugees' dignity, autonomy, lives, and futures. Using the case study of Australia's extraterritorial asylum regime in Nauru and Papua New Guinea, this article focuses on the juridical dimensions of medical borders to show how the facilitate the contested medicalisation of asylum. In reconfiguring complex transnational relations of responsibility, medical borders give rise to new sites for refugee legal claim-making, non-compliance, and protest. Given the global trend towards refugee externalisation policies, Australia's extraterritorial asylum regime serves as a cautionary example of how medical care can both entrench and challenge the serious harms of state borders. This is a pre-print version of an article published in: (2026) 49(1) UNSW Law Journal 285.
Buy Now Pay Later (‘BNPL’) has gained traction particularly among young Australians as a smart, interest-free ‘way to pay’. Yet, digitalisation, easy access to credit, and the lack of friction have heightened the risks of financial abuse. Coerced BNPL debt continues to increase, and survivors’ attempts to extricate themselves from such debt are fraught with difficulty, causing survivors long-term harm. This study employs a dual method approach, namely a survey and interviews with financial counsellors, revealing that 14.6% of clients who had BNPL debt were coerced into debt by perpetrators who weaponised BNPL platforms and their underlying legal frameworks. We identify systemic weaknesses in existing regulatory frameworks, and propose policy reforms to mitigate the harm. Through ‘safety by design’, BNPL providers can take preventative measures to reduce the risk of financial abuse and foster better outcomes for survivors.
Superannuation funds’ significance was highlighted in 2023 when Australia’s largest fund derailed a high-profile takeover transaction. Commentators expressed reservations about funds’ increasing power over Australian Securities Exchange-listed entities. This article explores the rise of superannuation funds and their corporate governance significance. Data indicates that superannuation funds do not own enough shares to control listed entities. Instead, share ownership is concentrating in the hands of groups of superannuation funds and other institutional investors. In this setting, governance outcomes are determined not by a controlling shareholder but through the interplay between compact groups of investors and corporate management. This phenomenon has not been explored in detail in Australia. This article contributes a conceptual framework for analysing the phenomenon: the ‘market for corporate influence’. This article argues that superannuation funds have attributes that make them adept wielders of influence in the market for corporate influence, and highlights implications for Australian corporate governance regulation.
This article critically examines the sufficiency of legal frameworks governing artificial intelligence (‘AI’) and automated decision-making (‘ADM’) systems in the public sector through doctrinal and empirical analysis, using data from 163 ADM systems in New South Wales (‘NSW’) government agencies. Considering the regulatory frameworks created by the European Union’s (‘EU’) AI Act and the NSW AI Assessment Framework (‘AIAF’), the article reveals that restricting regulatory oversight to AI systems neglects many high-risk technologies. Notably, three-fifths of ADM systems deemed high-risk under the AIAF do not satisfy the EU’s AI definition, thereby potentially bypassing mandatory assessment. This finding challenges the assumption that AI-focused regulation adequately captures technological risk in the public sector, exposing significant regulatory blind spots. Comparative analysis further highlights interpretive and operational ambiguities within existing frameworks. The authors advocate for a risk-based regulatory approach encompassing all ADM systems, providing critical insights for Australian policymakers and enriching the discourse on responsible digital governance.
This article examines the benefits and risks of generative artificial intelligence (‘GenAI’) use in an important domain that is currently under-serviced by the civil justice system: small value consumer claims, where GenAI has been proposed as a means of closing the access to justice gap. In the online dispute resolution (‘ODR’) field, use of digital tools such as expert systems and rules-based chatbots has been advanced to assist potential litigants. GenAI has considerable attractions in this context because of its adaptivity and flexibility in responding to prompts. The question is whether the risk of hallucinations inherent in GenAI undermines these benefits. While strategies such as retrieval augmented generation may improve the accuracy of GenAI in legal domains, it is unclear whether this technique can overcome the information asymmetries that typically characterise consumer disputes. Any resolution of these issues requires careful attention to ODR design and artificial intelligence governance.
In 2017, Justice Gordon delivered a speech that addressed the use of risk assessment tools to inform judicial decisions. Her Honour asked: ‘[i]f society demands that the law should be such that people can and will be guided by it, what does that mean for the form and content of these technological innovations?’ That is the question at the heart of this article. I argue that there are two components to the guidance function of the law – that people can understand what the law requires of them (‘transparency’), and that it equips them with the chance to toe the line (‘opportunity’). I argue that there are good reasons to conclude that policies of risk assessment across Australian corrective services fail to satisfy basic standards of transparency and opportunity – that they fail, in this respect, to achieve the guidance objective at the heart of the rule of law.
Generative artificial intelligence (‘GenAI’) models democratise the artistic landscape by enabling amateurs and artists alike to create quality images. At the same time, copyright holders are increasingly concerned about copyright infringement where their works have been incorporated into training data without authorisation. We undertake a step-by-step analysis informed by technical information from recent scholarship and overseas litigation to consider the creation of training data, its use in machine learning, then the development and deployment of text-to-image GenAI models. This ‘supply chain’ approach allows us to assess the liability of actors at each stage, revealing the Australian legal position to be significantly more complex than has been appreciated. We explore the implications of this analysis, arguing in favour of a principled, rather than pragmatic, application of legal principles. We conclude by recommending reform agendas be animated by a broad view of copyright’s aims as well as an appreciation of its limits.
Artificial intelligence (‘AI’) and generative artificial intelligence (‘GenAI’) are both rapidly reshaping legal practice. As both AI and GenAI tools become embedded in legal workflows, there is growing concern that law graduates are entering the profession without the skills needed to engage with these technologies. This article presents findings from an empirical research study which examines how GenAI is being used across the legal profession in Australia, and what this means for the future of legal education. We conducted semi-structured interviews with 51 participants from 27 organisations. Participants described significant shifts in legal roles, processes, and expectations. There is some concern about an emerging ‘5-year problem’, where it is uncertain where future skilled lawyers will come from. We argue that universities must prepare graduates for the realities of contemporary legal practice and equip them to critically evaluate GenAI output.
Algorithmic contracting has introduced unique complexities to the law. Deterministic algorithms and particularly opaque, non-deterministic machine learning and artificial intelligence systems, can exacerbate existing imbalances between contracting parties. In Quoine Pte Ltd v B2C2 Ltd, the doctrine of mistake could not resolve the dispute concerning algorithmic errors, which caused cryptocurrency trades to execute at 250 times market value. A review of equitable unconscionability in Australia, England, and Singapore shows the doctrine must be reshaped to meet the complexities of algorithmic contracting. We argue that statutory adaptations of unconscionability offer a promising path forward. The High Court of Australia’s application in Productivity Partners v Australian Competition and Consumer Commission of a ‘system of conduct’ under section 21(4)(b) of the Australian Consumer Law and the ‘sliding scale’ balancing of procedural and substantive unconscionability under section 2-302 of the United States Uniform Commercial Code provide potential avenues for addressing imbalances from algorithmic contracting.
Generative artificial intelligence (‘GenAI’) models raise two key copyright infringement questions. The ‘input’ question asks whether the use of copyright content to train GenAI models constitutes infringement. The ‘output’ question focuses on content produced using GenAI and asks whether this infringes the human-authored works that it is based on. Drawing from United States case law, this article considers if Australian copyright law is equipped to address these questions. It identifies the doctrinal inflexibility and challenges at the input and output stages and highlights the importance of copyright’s fundamental idea/expression dichotomy at each stage. We should be cautious about stretching our understanding of copyright’s idea/expression dichotomy to fit challenges raised by GenAI. Copyright law’s fundamental principles will continue to apply to GenAI outputs, though support is needed from regulatory frameworks based on unfair competition law principles, which are able to target specific harms to creative labour and reputations.
This article employs a queer theoretical framework to analyse algorithmic discrimination in healthcare-related artificial intelligence, with particular attention to the biases affecting sexual and gender minorities. It offers a comparative analysis of three regulatory models: principle-based; technical-oriented; and sociotechnical-oriented, by examining the European Union Artificial Intelligence (‘AI’) Act, the Council of Europe Framework Convention on AI, and the Brazilian AI Bill. This article argues for a queer-responsive regulatory approach capable of addressing biases embedded in AI systems and promoting more inclusive and equitable healthcare technologies.
Despite the increasing diversity of student cohorts in Australian law schools, there is very little research on the experiences of law students from diverse backgrounds, and none that specifically focuses on Muslim law students. This article discusses the findings of a study conducted at Western Sydney University on the experiences of Muslim law students. Using a focus group methodology, it provides insight into students' perspectives on representation and belonging in law school and the legal profession. Students'sense of belonging and identity at law school may be confined to their experience of 'safe spaces', with that sense of belonging often diminishing as they transition into the legal profession. Greater consideration is needed in relation to how Islam is discussed in the Australian law curriculum, along with the need to address the intersectional challenges faced by female students who identify as Muslim.
This article argues that the Senate Standing Committee for the Scrutiny of Bills ('SSCSB)' should use the analytic framework of structured proportionality to hold Ministers accountable for justifying laws which infringe administrative law norms of procedural fairness. While procedural fairness in Australian public law has been primarily examined through the lens of judicial review, this article shifts the focus to Parliament-specifically, the role of the SSCSB. Through a case study on the Administrative Review Tribunal Bill 2024 (Cth), this article illustrates the inadequacy of current ministerial justifications for legislative abrogation of procedural fairness in administrative proceedings. Structured proportionality is proposed as a novel and valuable addition to a more robust scrutiny process. By demanding rigorous justification based on structured proportionality, the SSCSB can enhance legislative practices and safeguard a fundamental common law right.
