Alternative Law Journal

Although it is part of core government business to collect information about its citizens, ‘big data’ has increased the scale, speed and complexity of data collection and use to such an extent that it is arguably qualitatively different from the record-keeping that has gone before it. Big data represents a radical shift in the balance of power between State and citizen. This article argues that embedding big data in government operations masks its deployment as enhancing government power, rather than simply facilitating execution of government activities. In other words, big data is ‘disruptive’ technology that calls for the examination of the limits of government power. To illustrate this argument, this article examines a selection of recent case studies of attempts by the Australian government to deploy big data as a tool of governance. It identifies the risk to the citizen inherent in the use of big data, to justify review of the bounds of government power in the face of rapid technological change.

This article discusses statutory incursions on the presumption of innocence, using existing drugs offence provisions in the Commonwealth Criminal Code as an example. It argues such laws are problematic because they allow a person to be convicted despite the existence of reasonable doubt as to their guilt, and that through use of the Chapter III concept of ‘institutional integrity’, such laws may be open to constitutional challenge. By permitting a court to preside over a trial where an accused may be convicted despite the existence of reasonable doubt, the court’s institutional integrity is undermined.

While there has been much recent controversy relating to the abusive treatment of young prisoners and the failure of the State to properly facilitate the rehabilitation and reformation of young detainees, little attention has been paid to similar failures in relation to prisoners with cognitive impairments. In this article, we argue that Article 10.3 of the International Covenant on Civil and Political Rights and Article 26 of the Convention on the Rights of Persons with Disabilities require Australia to ensure that the conditions of detention of all prisoners are primarily reformative and rehabilitative. Analysing relevant jurisprudence, we argue that Australia is systematically failing to meet its human rights obligations to prisoners found ‘not guilty’ by reason of mental impairment.

New South Wales has recently joined several other Australian states in enacting anti-protest laws. Although environmental protests (particularly those against mining) have been the political and economic driving force behind the drafting of the laws in each state, the NSW law explicitly targets this issue. This article explores the political context of the new laws and what the law does. It then critiques the government’s claim that the laws concern safety rather than targeting protests.

This article evaluates the way in which the New South Wales Public Order and Riot Squad has been used to police political protests. The use of force, strategic arrests and protection of business interests can be seen across local protests, as well as larger international events. It is argued that the shift towards paramilitary policing is having profound impacts on the policing of protests at all levels. The Public Order and Riot Squad does not just target the risk that it was designed to combat (extreme riots) and the risk which is often thought to be its justification (counter-terrorism). The article also considers the statutory framework for authorising protests, arguing that it is not just police tactics that support the status quo, but also the supposedly neutral method of evaluating public safety.

This article considers Australia’s past interest in Nordic nations’ achievements in preventing crime and in rehabilitating persons convicted of crimes. Current crises in Australian prisons, particularly as analysed recently by the Victorian Ombudsman, are then considered. Lessons from Sweden and Norway, in particular, are identified which might practically help now to tackle those problems.

There are increasing reports of university students contracting with third parties to write their essays and assignments. While getting caught is likely to mean the student faces disciplinary action within the university, the students and those offering the service may also be exposing themselves to criminal prosecution. This article looks at the range of offences that students and the contract cheating services could be committing – including fraud, forgery and conspiracy. The article also recommends specific statutory offences be introduced. Far from an entrepreneurial innovation, the activities can be construed as serious crimes.

This article presents a thought project on how the law ought to treat working animals. The author argues that work health and safety legislation needs to take a fresh, contemporary and inclusive approach which challenges our anthropocentric mentality and recognises those animals that contribute to our economy through work. A critical reading of key sections of Australia’s model work health and safety legislation, as a representative example of contemporary work health and safety law, supports the contention working animals should be included as ‘workers’ under such laws.

Animal hoarding is a poorly understood phenomenon with potentially disastrous consequences for both the people and animals involved, but there has been little critique of the current legal regulation in Australia. The author examines the current regulation of animal hoarding in Australia, argues it is deficient because it does not address the psychological disorder underpinning the hoarding behaviour, and suggests a new model for regulating and addressing animal hoarding, including changes to animal welfare statutes and a multidisciplinary regulatory ‘court’ with a long-term focus.

This article examines how the Disability Discrimination Act 1992 (Cth) relates to children’s sport. More specifically, this article asks: how does the Disability Discrimination Act 1992 (Cth) address the treatment of children with disabilities participating in competitive sport? This article asserts that the ‘attitude’ in and around the construction of sport is framed in the ableism perspective that assumes ability. While there are specific disability sports, with rules designed to accommodate the different attributes people may possess, this article focuses on the nature and quality of access to, and experience in, sport that is not disability specific (mainstream sport), and argues that the law fails to protect children with disability being treated in a way that places them at a disadvantage. The primary concern raised by this article is that children with disability are not provided with fairness in competitive sport. This may be discriminatory.

This article considers how the Victorian Mental Health Act 2014 extinguishes the right of people with a mental illness to refuse treatment in light of the Convention on the Rights of Persons with Disabilities, which prohibits detention or compulsory treatment on the basis of a person’s disability. Three possible resolutions of this inconsistency are proposed and considered: repealing the Mental Health Act 2014, de-linking disability from compulsory treatment, and maintaining legal capacity by supporting mental capacity.

Cultural competency has proven less effective than its proponents had envisioned. Disciplines outside of the law (social work, health and psychology) have turned to the more powerful theory of ‘cultural humility’ – a framework for lifelong learning and self-reflection. Cultural humility contends that one can never really ‘master’ another’s culture, but that we ought to remain respectful and reflective in our approach. In this article I make the case for teaching cultural humility in Australian law schools.

Previous research and commentary indicates that some judicial officers may be reluctant to apply therapeutic jurisprudence principles in court, perhaps because of a perception that therapeutic judging requires a significant departure from conventional practice. This Brief investigates in-court judicial practice through a selection of sentencing remarks for serious criminal offences. The analysis shows how everyday judicial practices can be consistent with the principles of therapeutic jurisprudence, and indicates that judicial officers are already adopting an approach to judging that can be regarded as therapeutic to some extent.