This article examines how social media and AI-driven algorithmic publicity affect the right to a fair trial in Australian criminal jury proceedings. It outlines the common law and statutory controls on prejudicial publicity, including sub judice contempt, permanent stays, jury directions and evidentiary discretions, and shows how they operate in leading High Court and appellate decisions and recent law reform work. It then explains how search engines, social media feeds, recommender systems, synthetic media and generative AI, through engagement-optimised ranking and amplification, undermine broadcast-era assumptions about juror exposure. Drawing on empirical research on juror psychology, media effects and juror internet use, the article evaluates the practical capacity of safeguards such as contempt, stays (including delay, change of venue and sequestration), judge-alone trials and directions where prejudicial material is persistent, searchable and personalised. It argues for a robust fair-trial standard paired with a more candid account of digital exposure. Building on developments in the UK, EU, US, China and Estonia, it proposes doctrinal and procedural refinements, narrowly targeted platform duties and court-supervised AI monitoring tools to preserve jury trial and open justice while maintaining credible fair-trial guarantees in an algorithmic information environment.
This article reconsiders the epistemological foundations of the economic analysis of law in the context of artificial intelligence. It argues that AI reconfigures the core assumptions of law and economics under which these assumptions are operationalised. In classical frameworks, rationality functions as a simplifying device for modelling how individuals respond to legal rules. The increasing use of data-driven systems reshapes the informational and institutional environments within which such behaviour is analysed. The article examines how this transformation affects four central concepts: rationality, efficiency, legitimacy, and justice. It shows that efficiency is increasingly mediated by technical metrics such as predictive accuracy and system performance. Similarly, legal legitimacy continues to depend on normative justification, even as computational processes influence how decisions are evaluated. In the domain of justice, individualised reasoning coexists with system-level approaches based on statistical patterns, generating new tensions within legal practice. Through a series of case studies, the article demonstrates how these dynamics emerge in concrete legal contexts. It concludes that the impact of artificial intelligence on law is best understood not as a process of substitution, but as a reconfiguration of the epistemic and institutional conditions of legal reasoning.
During the Australian Federal Conventions of the 1890’s a proposal was considered to include the first section of the Fourteenth amendment to the United States Constitution in the Australian Constitution. The proposed ‘Tasmanian Amendment’ would have had a profound and lasting impact on the Commonwealth. This article endeavours to set out the legal history relevant to this provision, and the reasons for it being defeated at the Australian Federation conventions. Following from this, the article offers a comparative analysis of American and Australian jurisprudence on several of the provision’s important aspects. The article concludes that the historical defeat of the amendment in Australia should not restrain its future consideration, and that the proposal, if revitalised, would be a suitable starting point for constitutional rights protection reform.
The imposition of capital gains tax on trustees in bankruptcy has become a contentious issue following the Federal Court’s decision in Robson as trustee for the bankrupt estate of Lanning v Commissioner of Taxation [2024] FCA 720. Historically, trustees in bankruptcy were not held liable for capital gains tax on asset disposals during bankruptcy; rather, the liability was attributed to the bankrupt individual. However, the court's interpretation of s 254 of the Income Tax Assessment Act 1936 (Cth) has altered the established position, making trustees in bankruptcy personally liable for CGT arising from post-appointment disposals. This article examines the shift in legal interpretation by analysing the rationale in Robson and its departure from established practice. It further discusses the practical challenges and commercial implications of the decision, and identifies strategies adopted by trustees to mitigate personal liability, including reliance on pre-appointment disposals. Ultimately, this article concludes that reform is required to address the inequities and inefficiencies arising from the Robson decision, in order to ensure the fair and efficient administration of bankrupt estates.
This article examines claims of declining student attendance at law lectures and evaluates the contemporary relevance of the synchronous lecture. The authors discuss the benefits of lectures, analyse the reasons for low student attendance, and investigate student perceptions regarding the value of synchronous lectures versus asynchronous learning options such as lecture recordings. The study includes a review of the literature on the value of lecture attendance, an analysis of lecture attendance data, a survey of student preferences, and a summary of focus groups with students. Ultimately, the authors conclude that abolishing law lectures is not advisable as law students continue to find value in having access to both synchronous and asynchronous learning options.
Within the doctrine of unconscionable transactions, the knowledge of the Respondent towards the Applicant's 'special disadvantage' is but one factor considered in a holistic assessment of the circumstances surrounding an impugned transaction, informing the definition of unconscionability 'at large'. Being equitable, the doctrine of unconscionable transactions is not easily reduced to a formula - and if balanced properly against the need for consistency expressed through stare decisis (as an aspect of justice) - this is proper. Thus, the authors stress to the reader that where this article discusses the Respondent's knowledge and 'predatory state of mind' as elements of unconscionability, these are not elements in the sense that this term is understood in a tortious cause of action. This article considers the discrete doctrine of unconscionable conduct in Australia without considering where it may overlap with other equitable doctrines, for example undue influence. This article argues that since the case of Kakavas v Crown Melbourne ('Kakavas'), High Court authority has consistently rejected notions of constructive knowledge and notice within the doctrine of unconscionable conduct. Further, the High Court has not excepted cases concerning non-commercial dealings from the rule in Kakavas that the respondent must have possessed subjective knowledge (an unequivocal finding of actual knowledge or that of wilful blindness) of the Applicant's special disadvantage to deprive the respondent of the benefit of a transaction. Critical in this assessment will be the High Court's subsequent decisions in Thorne v Kennedy and Stubbings v Jams 2 Pty Ltd (Stubbings) and how their effects on the decision in Kakavas have been interpreted differently in Courts of Appeal below - the NSWCA 2022 decision in Nitopi v Nitopi permitting constructive knowledge and the WASCA decision in Gunn v Meiners, also in 2022, rejecting constructive knowledge as sufficient in making out cases of unconscionable conduct. The authors support the Western Australian position on interpreting both Stubbings and Kakavas and justify their position in this article.
The rapid advancement of technology and the increasing digital literacy of individuals have revolutionised access to legal information. The outbreak of COVID-19 necessitated a swift transition to the virtual environment for many, and alongside the rapid development of Generative Artificial Intelligence, the practice of law is fundamentally altered. This shift towards digital platforms created a unique opportunity to re-evaluate traditional methods of accessing legal information. As the world re-establishes customary practices, it becomes imperative to critically examine the transformative effects of this change and explore prospects for law reporting. This article aims to provide a concise historical overview of law reporting in Australia, clarify the current state of law reporting, assess the impact of technology on the field, explore alternative publishing approaches, and engage in a strategic vision discourse on the future of law reporting.
Robust cyber security protection is essential to cloud services and government and private sector customers. In Australia, cloud services have undergone a significant regulatory reset, in part due to reforms to the critical infrastructure (‘CI’) legislative framework, including amendments to the Security of Critical Infrastructure Act 2018 (Cth) (‘SOCI Act’). Shifts in industry practice, such as the increased uptake of cloud services by businesses and government agencies and the advent of new security threats, have accentuated these changes. While Australian governments and regulators have implemented numerous legislative, policy, and guidance instruments to bolster cyber security measures, many of these attempts are not well-aligned. The outcome is an unclear and difficult-to-navigate regulatory ecosystem. We argue this complex regulatory landscape will likely result in increased costs, variable compliance, and decreased confidence in providing cyber security services unless careful attention is paid to mitigating the detrimental effects of ‘regulatory overlap’. This article identifies and critically examines key elements of existing statutory, regulatory and guidance instruments imposing cyber security and CI obligations on cloud services providers, as well as agencies and institutions holding key regulatory roles. These elements are examined in the context of cloud services providers subject to direct legal obligations, such as being responsible entities for CI assets and/or systems of national significance under the SOCI Act and other cloud services entities that form part of the supply chain for other providers with such obligations.
In an era marked by unprecedented access to information and rapid advancements in health care technologies, the Right Not to Know (RNTK) has emerged as a key yet contentious concept within legal discourses. RNTK grants individuals the capacity to refuse knowledge about their health care or genetic profile, thereby strengthening personal autonomy and self-determination. This right is increasingly incorporated into international legal frameworks and human rights principles as a protection against paternalistic tendencies in health care and the overwhelming flood of contemporary data. Despite this development, its legal enforcement remains inconsistent, situated in a regulatory grey zone characterised by uncertainty and diverse interpretations. Theoretically, RNTK’s validity is both supported and challenged. The current study employs a thorough examination of these aspects to evaluate whether RNTK represents an established right in the field of human rights or a contentious right in international and domestic law, especially Australia. This analysis aims to clarify its broader implications for societies.
This article demonstrates the evolving relationship between data protection and privacy in Europe, the US, and China, from interconnection to separation. In Europe, data protection and privacy have shifted from being intertwined into distinct concepts, notably propelled by the Charter of Fundamental Rights of the European Union. Similarly, China has firmly separated data protection and privacy through legislation like the Civil Code and the Personal Information Protection Law. Even in the US, a subset of privacy akin to data protection has been delineated within the expansive privacy framework. By examining China’s landscape in more detail, this article examines the differences between data protection and privacy in terms of subject matter, the scope of subjects, burden of proof, and compensation for mental damage. Furthermore, this article critically evaluates the individual-centric, rights-based data protection paradigm, noting its shortcomings in achieving substantive fairness and tackling the escalating asymmetries between data controllers and data subjects. Afterwards, it calls for a more assertive state role in ensuring robust data protection, emphasising the importance of recognising the protection for personal data as a fundamental right to effectively counteract the mounting influence of data power.
Australians make up a disturbingly high proportion of child sex tourists in Southeast Asia and the Pacific. This trend stems from several factors: the economic gap between Australia and the Asia-Pacific region, the absence of psychological restraints that might regulate behaviour, and the perceived ineffectiveness of foreign law enforcement. Acknowledging their role in child sex tourism and complying with international obligations, Australia has implemented laws targeting its citizens and residents engaged in such activities. These laws remove certain obstacles to enforcement, such as the requirement of double criminality and allowing the prosecution of opportunistic offenders. Additionally, Australia has created laws addressing online involvement in such crimes. The Australian Federal Police is the primary investigative and enforcement agency of child sex tourism, often collaborating with foreign law enforcement agencies. Moreover, child sex offender registries aim to prevent potential offenders from traveling abroad. Despite these efforts, Australia's approach could be bolstered. Enhancements could involve refining double jeopardy provisions to prevent offenders from evading prosecution if they haven't completed their sentences or if the offence of which they were convicted did not reference the victim's age. Introducing a distinct offence for involving individuals under 18 in prostitution outside Australia and expanding the use of assumed online identities to identify and disrupt child sex offenders should also be considered. It is also possible that further technology and regulations, such as artificial intelligence and the work of the eSafety Commissioner, will work to better identify would-be offenders.
This article aims to tell the story of the journey of Australian corporate law – its evolution, and the infrastructure supporting it (i.e., courts, regulator, and other bodies providing soft law/ guidance). It argues that the history of a jurisdiction’s corporate law journey is an important consideration while attempting to tackle corporate law challenges of the present and future. The challenges of the present and future are identified as sustainable business practices, changing shareholder profile, and the impact of technology on corporate activity. While these challenges are global, ie all countries are grappling with them, Australia’s response has to be suited to its own local realities and these realities are reflected in the story of how we got here. In telling this story, the article discusses hard law, soft law, efforts to simplify the corporations statute by the Australian Law Reform Commission, and the role of the courts and the market regulator in Australia. Finally, the article also contributes to the debate about corporate law convergence from an Australian perspective.
In 2015, the United Nations adopted Sustainable Development Goals (‘SDGs’) with a full implementation target of 2030. The breadth and depth of the 17 Goals are significant, including ending poverty, offering quality education, affordable and clean energy, and responsible consumption and production, to name a few. Overlapping with the SDGs is the Planetary Boundary Framework (‘PBF’) designed to ensure a safe operating space for humanity while protecting Earth’s biophysical systems and processes. The SDGs and PBF are integral for the continued development and survival of future generations of humanity, and indeed the planet. These are both ambitious agendas to implement requiring collaboration by all stakeholders and countries, however, it is becoming evident that corporate participation is critical to the achievement of both the SDGs and the PBF. Scholars and activists have increasingly emphasised a strengthening of corporate social responsibility (‘CSR’) regimes and a greater emphasis on shared purpose as key planks in aligning companies and company law with these critical sustainability goals. Although companies were historically formed to solve a societal problem, a focus on profit maximisation has resulted in unfavourable practices that impact marginalised communities and challenge the sustainability of communities and the planet. Contrasted with the corporation, another type of collective business model known as the cooperative appears to have maintained a set of principles and values that extend beyond profit to align with and support many of the SDGs and the PBF. In this article, we analyse the evolution of the company as contrasted with the cooperative to argue that corporate purpose could be defined by reference to cooperative principles, the SDGs, and the PBF to ensure corporations make meaningful contributions to society and the planet.
The High Court of Australia’s decision in _R v Rohan_ addresses critical aspects of complicity in criminal offences under the _Crimes Act 1958_ (Vic). The case involved Rohan and two co-accused charged with supplying drugs and committing sexual offences against minors. The primary legal issue was whether the prosecution needed to prove that the accused knew the victims’ ages to establish guilt under sections 323 and 324 of the _Crimes Act 1958_ (Vic). The High Court ruled that such knowledge was unnecessary, focusing instead on the agreement to commit the acts constituting the offence. This decision broadens the scope of criminal liability to include those involved in joint criminal enterprises, regardless of their awareness of specific details. The ruling has significant implications for prosecutorial strategies and the interpretation of complicity laws, reinforcing the attitude that involvement in a criminal agreement suffices for liability.
The High Court of Australia’s decision in R v Rohan addresses critical aspects of complicity in criminal offences under the Crimes Act 1958 (Vic). The case involved Rohan and two co-accused charged with supplying drugs and committing sexual offences against minors. The primary legal issue was whether the prosecution needed to prove that the accused knew the victims’ ages to establish guilt under sections 323 and 324 of the Crimes Act 1958 (Vic). The High Court ruled that such knowledge was unnecessary, focusing instead on the agreement to commit the acts constituting the offence. This decision broadens the scope of criminal liability to include those involved in joint criminal enterprises, regardless of their awareness of specific details. The ruling has significant implications for prosecutorial strategies and the interpretation of complicity laws, reinforcing the attitude that involvement in a criminal agreement suffices for liability.
Individuals with Attention Deficit Hyperactivity Disorder (ADHD) are highly overrepresented in criminal offender populations. Those with ADHD present with problematic and excessive levels of inattention, and/or hyperactivity and impulsivity. It is generally accepted that self-control difficulty is a core vulnerability for those with ADHD. A lack of appropriate self-control has long been recognised across disciplines to be an important influencing factor on the commission of crime. Historically, the occurrence of pervasively low-self-control within an individual has been seen to be principally influenced by social and environmental factors. Up-to-date research and understanding, however, shows that variability in self-control is heavily biologically/genetically derived. This article offers an integrated medical paediatric, psychological, and criminological perspective on ADHD and its impact on criminal justice outcomes. We argue that crime prevention and/or ADHD symptom management strategies that have been ignorant of this understanding are inadequate and may have unintentionally worked to the detriment of those with ADHD. We propose that a more comprehensive and applied understanding as to the origins of pervasive self-control difficulties in policy and practice is necessary to reduce the overrepresentation of those with ADHD in criminal and youth justice offender populations.
This expert commentary examines the links between Attention Deficit Hyperactivity Disorder (ADHD) and the criminal justice system from a practitioner’s unique perspective. Having served as a senior police officer where my interest in these subjects grew, to now being the managing director of the United Kingdom’s largest specialist ADHD clinic, this examination turns the current debate on its head. Shifting from ‘more needs to be done’ through to ‘this is how we can do more’, the commentary concludes that we know what is wrong; we can identify the people we need to help; and hence, we need to rise up and break the systemic cycle of failure for people with ADHD and keep them in the health system rather than allowing them to fall into the criminal justice system. This analysis is based on academic research, real world-evidence and clinical experience.
ADHD has long been recognised as disproportionately present in both juvenile and adult prison populations. This is so for a number of reasons, including the potential for persons with ADHD to be disinhibited, impulsive, impaired in executive functioning and chaotic in their lifestyle. A major challenge exists, though, to assist courts to understand better how ADHD may have played a role in criminal offending and thus to be relevant to evaluations of criminal culpability or even responsibility. Another issue that arises for expert assessment is how ADHD may make the experience of custodial detention especially burdensome and be relevant in this respect also for sentencing. This article considers the overall forensic context of ADHD in criminal litigation and reviews a selection of illustrative decisions from Canada, Australia, New Zealand and the United Kingdom to identify principles on the basis of which courts can make nuanced decisions that are suitably informed by expert mental health evidence about the forensic ramifications of ADHD.
This article is intended as a primer on trauma-informed practice for professionals working in the area of refugee law. Refugees and asylum seekers are amongst the most vulnerable groups in the community, and the process of seeking asylum itself can intensify stress. Trauma-informed practice is founded on ‘safety first’ and ‘do no harm’. It reflects adherence to core principles, rather than a prescribed set of practices and procedures. The core principles of trauma-informed practice include safety, trust, choice, collaboration and empowerment. This article primarily focusses on professional applications of trauma-informed practice at an individual level. By taking steps to integrate these principles into interpersonal interactions with refugees and asylum seekers, professionals can better support their needs in the refugee law context.
