It is my absolute pleasure to be writing an address for the inaugural edition of the Social Justice Magazine. I am excited to be presenting the very first publication for our LSS Social Justice Portfolio.
The publication dives into a theme of “Equity, Justice, Resistance”, and serves to be more than merely a collection of articles, but rather to further develop our society’s passion to promote social justice and work towards a more equitable legal landscape.
As a publication that has been developed from our Brennan Justice and Leadership Program, this magazine aims to further empower and engage students to true legal education that goes beyond our classrooms.
On this note, I would also like to thank the UTS Faculty of Law for their consistent support of our society and us students; initiatives like this publication are only possible because of the Faculty’s dedication and commitment to a holistic university experience for all students.
A massive thank you also goes to our LSS Social Justice Portfolio, in particular to our Vice-President of Social Justice, Eva Ossowski, and our Brennan Program Directors, Chloe Ferreira and Ma’ayan Granot. This publication is a true testament to their passion and commitment to social justice, and their strong involvement within our society.
To all the students who contributed to the publication, thank you for your efforts and thank you for being involved. Your contribution is undoubtedly insightful and valuable to our society and all readers of this incredible publication.
To everyone reading this publication, I hope you find the articles engaging and enlightening, and we hope to see your contribution in LSS publications in the future! Thank you.
Nipun Kar UTS LSS President
(2025)
It’s with great excitement that I welcome you to the very first edition of Fair Play: Justice, Equity & Resistance, the UTS LSS new Social Justice Magazine
This publication brings together a collection of student voices who aren’t afraid to question, challenge, and reimagine the law. Each piece explores what justice really looks like — in Australia and beyond — and how law can be a force for equity, or sometimes, an obstacle to it.
From the courts to the community, Fair Play shines a light on moments of resistance, advocacy, and reform. The pieces within reflect the depth of passion, thought, and courage that define our law students, each offering a fresh perspective on how law can respond to the world’s most pressing issues.
In reading these pieces, I encourage you to pause and think critically about your own role in shaping a fairer legal landscape. True justice demands that we keep asking difficult questions — and that we never stop pushing for better.
A huge thank you goes to our incredible contributors, who poured their time, creativity, and insight into every page. To Ivana Lam and Ananya Agrawal; our incredible Subcommittee for their tireless effort in bringing this edition to life, and to our wonderful designer Cassandra Economides for capturing the essence of Fair Play so perfectly — thank you. And of course, to the LSS Executive for their ongoing support — especially Rosalia Bautista (Vice President Education) and Eva Ossowski (Vice President Social Justice) — for their dedication in helping bring this publication to life and laying the groundwork for it to continue to grow. A final thanks to President Nipun Kar for his support in enabling this initiative to take shape.
Enjoy the read — and may it inspire you to think boldly, speak bravely, and play fair!
Chloe Ferreira UTS LSS Brennan Program Director (2025)
How far would you go to escape your abuser? Would you run? Would you fight? Would you kill if that was your only chance to escape? And what if that abuser wasn’t a stranger, but your very own parents?
In 1989, two young men walked into their Beverly Hills mansion and shot their parents dead.
The headlines wrote themselves: “Spoiled heirs.” “Greedy sons.” “Cold-blooded killers.”
The law gave them the ultimate label: murderers
But behind the headlines was a different story. Erik and Lyle Menéndez had grown up under years of physical, sexual, and emotional abuse. A home that looked like the American dream was, in reality, a private hell.
And so the question echoes: when the court sentenced them to life in prison, was that justice? Or was that merely the law?
I first learned about the Menéndez brothers late one night in a documentary. But what struck me wasn’t the crime itself. It was the silence around their years of abuse. How quickly the world labelled them monsters, without ever asking what created them. That moment stayed with me, because it reminded me of something uncomfortable but vital: the law punishes what was done, but justice requires us to ask why it was done. And all too often, our legal system stops short of that deeper question.
The law promises impartiality. Its purpose is stability. A crime is a crime, a statute is a statute. If you kill, you are guilty of murder. If you trespass, you are guilty of trespass.
But justice is not always that clean. Justice lives
in context. It looks not only at actions, but at circumstances.
The Menéndez case exposed the law’s blindness to human complexity. Two men were both perpetrators and victims at once. The law could not comprehend that paradox. Justice could have. But justice was never given the chance.
So we must ask: is a system that values certainty over complexity really delivering justice? Or just efficiency?
This tension isn’t confined to a courtroom in Los Angeles. We see it here in Australia every single day.
Aboriginal and Torres Strait Islander peoples make up less than 4% of Australia’s population, yet almost 33% of those in prison. The law says they are offenders. But justice would ask: why? Why Indigenous children are 27 times more likely to be locked up than nonIndigenous children. Why the legacy of colonisation, trauma, and systemic racism is met with punishment instead of healing. The law sees an offence. Justice would see the cycle that created it.
We see it in youth detention. In the Northern Territory’s Don Dale detention centre, children as young as 10 were tear-gassed, hooded, and strapped to chairs for hours. And this isn’t just Don Dale. Across Australia, over 3,000 children are held in youth detention each year, many for minor offences. Nearly 50% of these children report prior exposure to abuse or neglect, yet the law punishes them without addressing the trauma. The law confines children. Justice would protect them.
And we see it in gendered violence. How every 9 days in Australia, a woman is murdered by a current or former partner. Nearly 1 in 6 women experience 1 2 3 4
violence from a partner in their lifetime. And yet, when a woman finally fights back against her abuser, the law punishes her. She may be charged with assault or even murder, her years of trauma ignored, her survival instincts criminalised. The law sees a crime. Justice would see the abuse that provoked it. Justice doesn’t punish the victim, it defends her.
And here is where I want you to notice the pattern.
The law sees the act. Justice sees the story. The law sees the offence. Justice sees the person. The law sees rules broken. Justice sees lives already broken.
As Eleanor Roosevelt once said, “Justice cannot be for one side alone, but must be for both.” When the law punishes without understanding, it serves one side, the powerful, while leaving the vulnerable behind. True justice sees everyone. True justice listens, understands, and acts.
This is why social justice matters. It is not a side project, not a charity cause. Social justice is the soul of the law. Without it, law becomes nothing more than bureaucracy in a robe.
Social justice forces us to ask: Whose voices are being silenced? Who is being left behind by the very system designed to protect them?
It is not enough for law to be orderly. It must also be fair. Because neutrality in the face of injustice is not neutrality—it is complicity.
So the challenge comes to us. We, students, future practitioners, the next generation of barristers, judges, policymakers, must decide: what do we do with this tension?
Do we become technicians of precedent, applying statutes like machines?
Or do we become advocates of justice, bending the law toward humanity?
The law as it is may offer us stability. But the law as it could be offers us justice.
And if we do not push for that, who will?
References 1 2 3 4 5 5
Think again of Erik and Lyle Menéndez. Were they guilty of murder? Yes. Were they also victims of relentless abuse? Yes. The law had no language for that contradiction. And while the case happened overseas, the same paradox exists in Australia today, where the law can punish without seeing the trauma, disadvantage, or survival instincts that shaped the act.
So let me end where I began. Two brothers, two victims, two murderers. Their story unsettles us because it exposes the gulf between what the law delivers and what justice demands.
And here lies our task:
To narrow that gulf.
To remember the stories behind the statutes.
To fight for a law that does not just convict, but also understands.
And if we, this generation of lawyers, choose to remember that truth, then maybe one day, the law and justice will no longer be strangers, but allies.
Justice Reform Initiative, Aboriginal and Torres Strait Islander People — Jailing is Failing (Web Page, 2024) https://www.justicereforminitiative.org.au/aboriginal_and_torres_strait_islander_people
Ibid.
Australian Institute of Health and Welfare, Young People under Youth Justice Supervision and Their Interaction with the Child Protection System 2022-23 (Summary, AIHW, 25 October 2024) https://www.aihw.gov.au/reports/youth-justice/young-people-youth-justice-supervision-2022-23/summary. Mission Australia, 'Domestic and Family Violence Statistics' (Web Page) https://www.missionaustralia.com.au/domestic-and-family-violence-statistics. Ibid.
Equity and justice in the legal profession require us to confront the often-unspoken inequities faced by first-generation law students and lawyers. For many of us, entering the profession is not a continuation of legacy but an act of resistance against systemic barriers shaped by socio-economic, cultural, and educational disadvantage. First-generation talent brings resilience, fresh perspectives, and lived experience that enrich our understanding of justice. However, inequities persist from unequal access to networks and financial barriers that limit participation in clerkships, pro bono work, and professional development.
When I began my law degree, I felt the weight of these inequities immediately. As a culturally diverse student from a low socio-economic background, I was entering a profession that seemed unfamiliar and inaccessible. Many of my peers already understood clerkships, networking, and professional etiquette – aspects of the profession I had to learn from scratch. At times, I carried what I’ve come to call the “invisible weight” of being the first: the academic, emotional, and financial pressure of navigating uncharted territory, often while juggling part-time work and family commitments.
Compliments like “how do you manage it all?” were well-meaning, yet they rarely captured the reality: that behind the scenes, first-generation students are often burning out just to keep pace with those who begin the race two steps ahead. The disparity is not always about ability, but about access. Students from better resourced schools or professional families often arrive at university with stronger foundational skills and insider knowledge. By contrast, first-generation students may be building those skills for the first time while also fighting to secure financial stability.
This imbalance shapes more than grades. It influences the ability to feel confident enough to apply for internships, get recognised in class and receives opportunities. I have seen capable peers from disadvantaged backgrounds hesitate to step forward, not because they lacked potential, but
because they did not fit a preconceived image of success.
For me, these pressures were most acute in professional spaces. Moots, networking events, and clerkship seminars often left me feeling inadequate and out of place. Law schools often assume that students arrive already equipped with advocacy, networking, and public speaking skills that are typically nurtured in elite private schools. For first-generation students, those skills are rarely a given. They are learned on the run, often under the glare of comparison. Imposter syndrome was a constant companion. There were moments I questioned whether I truly belonged. Yet with time, I learned that the very experiences that made me feel different were the ones that gave me strength. Moots felt intimidating because many of my peers had already participated in debating or public speaking competitions in high school, while I was finding my voice for the first time. Networking events highlighted social codes and professional etiquette that others seemed to instinctively know but I had to piece together slowly. Clerkship seminars often felt like rooms full of students who already spoke the ‘language’ of law from discussing firms, practice groups, and career paths with ease.
A turning point came when I stopped hiding my non-traditional background and began to see it as a source of resilience. Joining Diverse Women in Law gave me a community of women who, like me, had carved their own way into a profession not built with them in mind. Their stories showed me that there is no single path to success and that authenticity matters far more than conformity.
Additionally, I leaned into opportunities, even when I didn’t know where they might lead. From mooting and pro bono projects to leadership roles and podcast interviews, each step outside my comfort zone gave me skills, exposure, and a stronger sense of belonging. Speaking on Lawyers Weekly’s Protégé Podcast about entering law as a first-generation student was
daunting, but it reaffirmed the importance of visibility for others having a similar experience. By sharing my story, I hope to remind others from non-traditional backgrounds that they are not alone and that the profession is stronger when it reflects diverse experiences.
Two strategies became anchors for me along this journey. First, I reframed adversity as opportunity. Each time I spoke at an event, stepped into leadership, or took on new roles, I reduced the power of imposter syndrome by proving to myself: I did that. Confidence, I realised, is not found through comparison but through action.
Second, I immersed myself in the community. Whether through student societies, professional networks, or mentoring initiatives, these connections reminded me that belonging is built, not given. These moments of engagement turned what initially felt like barriers into stepping stones.
Looking back, the journey has been far from easy. There have been moments of doubt, exhaustion, and isolation. But there have also been moments of triumph, growth, and pride. The lessons I carry are simple yet profound: success in law is not measured only by clerkship offers or polished résumés, but by resilience, adaptability, and authenticity.
To first-generation students entering the legal world: your background is your strength. Each time you walk into a room and feel out of place, remember that your presence is progress not just for you, but for those who will follow.
Resistance lies in challenging entrenched systems of privilege and reimagining a profession where opportunity is not inherited but earned, shared, and
True equity requires dismantling invisible hurdles and creating pathways where first-generation lawyers can thrive. This means recognising merit beyond pedigree, embedding mentorship and sponsorship, and valuing diverse journeys as strengths rather than weaknesses. Programs such as the UTS Law Students’ Society First Year Buddy Program were invaluable to me. Having a peer mentor in the early years helped break down barriers to networking and provided an accessible space to ask questions about clerkships, electives, and career planning. It reminded me how vital structured mentorship is in ensuring that information and guidance are not reserved for those who already have networks in the profession.
John Rawls, one of the most influential philosophers of the 20th century, proposed a thought experiment that fundamentally challenges how we construct just societies. Imagine you exist behind a "veil of ignorance" -unaware of whether you'll be born as a High Court justice in Sydney; a garment worker in Savar Upazila, Bangladesh; or one of millions in central Africa facing preventable disease. From this position, knowing the statistical likelihood of each outcome, how would you structure society's laws and institutions?
This framework exposes a fundamental inequity in how law serves power rather than vulnerability. Globally, 808 million people survive on less than $3 USD per day (2021 purchasing power parity), while Australia allocates just 0.19% of Gross National Income to foreign aid (2024). This, roughly just $115 of the $60 000 GNI (per capita) in Australia. This disparity isn't merely economic, it reflects legal structures that perpetuate inequality. While wealthy nations rank highly on happiness indices (Australia at 7.06, Germany at 6.3), countries like Bangladesh (3.89) and the Democratic Republic of Congo (3.3) struggle under systems that international law fails to adequately address.
Yet if Rawls' veil extended further — if you might emerge not just as any human but as any sentient being, our legal frameworks reveal an even starker injustice. In Australia alone, 664 million chickens are slaughtered annually, most after lives spent in conditions that would constitute criminal cruelty if inflicted on domestic animals. This legal double standard isn't accidental, it's actively protected through surveillance laws that criminalise documenting agricultural practices while exempting those same practices from animal cruelty legislation.
The resistance to transparency is telling, Australian whistleblowers exposing systematic animal suffering face greater legal penalties than the perpetrators. This signals a clear warping of justice, that protects industrial interests over sentient welfare. While the Prevention of Cruelty to Animals Act 1979 theoretically prohibits animal suffering, agricultural codes of practice create legal loopholes wide enough to drive trucks of chickens through. Dead bird composting bins — industry infrastructure for managing routine mortality in "free-range" facilities— are monuments to legally sanctioned suffering.
This isn't about choosing between human and animal welfare; it's about recognizing how systems of oppression interconnect. The same legal structures that permit 0.22% foreign aid, incentivise 99% of animal welfare donations to flow to companion animal shelters while factory farms operate in legally protected darkness. Only 1% of agricultural budgets address animal ag. welfare concerns, focusing primarily on biosecurity rather than suffering prevention.
International law offers alternative models. The European Union, Austria, Sweden, and the United Kingdom have recognised animal sentience in legislation -- acknowledging Jeremy Bentham’s insight in 1789, that the
relevant question isn't “‘Can they talk?’, nor ‘Can they reason?’ but, ‘Can they suffer?’". New Zealand, despite recognising sentience, demonstrates that symbolic legal recognition without enforcement mechanisms remains hollow, leaving concerns of animal suffering mostly neglected.
The path to justice requires both individual and institutional change. Effective organisations like GiveDirectly demonstrate how direct cash transfers enable economic mobility in developing nations, while groups like Animals Australia and Four Paws, push for agricultural transparency despite legal obstacles. These movements need support through strategic donations and political pressure.
Writing to local MPs about these intersecting injustices—demanding increased foreign aid, agricultural transparency, and genuine welfare protections, challenges the legal status quo. MPs need to hear that constituents recognize the contradiction of criminalising activists while protecting industrial cruelty, of spending billions on border protection while contributing pennies to poverty alleviation.
During the three minutes you've spent reading this essay, about 500 people have died globally, a fair proportion from poverty related illness. In the same time, over 4500 animals were slaughtered for food in Australia alone. Behind Rawls' veil, knowing you could be any of them, the imperative for legal reform becomes undeniable.
True justice requires dismantling the species barrier as fundamentally as we must dismantle barriers of nationality and class. This means restructuring legal frameworks that currently protect the powerful — whether multinational corporations or agricultural industries — at the expense of the vulnerable. It means recognizing that in a just society, surveillance laws would target suffering, not those who expose it.
You had a 0.3% chance of being born in Australia, a 10% chance of extreme poverty, and if we include land animals, a 91% chance of being born to suffer and die for someone’s meal. Our laws are written by the lucky 0.3% — for the 0.3%.
References
1: The Sustainable Development Goals Report 2025, UN Doc A/80/81-E/2025/62 (14 July 2025).
2: OECD, ‘Development Co-operation Profiles: Australia’ (Report, Organisation for Economic Co-Operation and Development, 10 June 2025) <https://www.oecd.org/en/publications/ development-co-operation-profiles_04b376d7 -en/australia_b4d74d53-en.html>.
3: World Bank, ‘GNI per capita, Atlas method (current US$) - Australia’ World Bank (Website, 2 October 2025) <https://data.worldbank.org/indicator/NY.GNP.PCAP.CD?locations=AU>.
4: Prevention of Cruelty to Animals Act 1979 (NSW).
5: Australian Bureau of Statistics, Livestock Products, Australia, June 2025 (19 August 2025) <https://www.abs.gov.au/statistics/industry/agriculture/livestock -products-australia/latest-release>.
‘Justice’, ‘equity’, ‘resistance’. These terms are highly critical to any discussion surrounding legal systems. The latter two terms have been especially prominent in late 20th Century and 21st Century discourse. Yet, where did these terms originate? How did they come to embody principles of fairness, the rule of law and challenging structural failures? I seek to briefly explore the timeline of how these key terms have been understood, theoretically and practically. From early figures such as Aristotle to contemporary scholars like John Finnis, both Australia-wide and globally, the notions of justice, equity and resistance. I find these pre-modern conceptions fascinating, tracing back our historical roots regarding these terms and can even point to a common understanding of equality and affirmation of human dignity. I will also briefly demonstrate practical implementation of these terms in statutory law, common law and other legal mechanisms.
To understand modern law, gaining insights into how our ancestors viewed justice, equity and resistance is great in demonstrating how enduring issues have been answered in the past. Indigenous customary law, rooted in millennia of oral tradition and Dreaming, promotes models of restoration and dialogue to facilitate just and equitable outcomes. The Code of Hammurabi, one of the oldest surviving written legal texts from the 18th Century BCE, outlines 282 punishments for crimes and infractions. It emphasises that king Hammurabi ‘established law and justice in the land’, credited by modern scholars as a method of jurisprudence through ‘formulation of social criticism’. Aristotle, a proponent of natural law—whereby reason is able to discover universal legal principles derived from nature—addresses all three notions. In his Nicomachean Ethics, equity (ἐπιεικής) and justice are intertwined, where equity is a ‘correction of justice…where it is deficient. Moreover, ‘resistance’ in Politics is classified as the action of revolting against unjust rule, providing a foundation for a ‘right to resist’.
In the Bible, the Old Testament views justice, endowed by God’s divine command, as of utmost importance in the ‘Torah’ (Law). This is practically applied to the poor, widows and orphans. It also promulgates ‘righteousness, justice, and equity’ as wise values, implemented by figures like King David. The New Testament equivocates justice with, ‘mercy and faith’. The Institutes of Justinian, a major civil code from the 6th Century CE, provides an apt definition of justice: ‘the set and constant purpose which gives to every man his due.’ Few of these conceptions, however, explicitly uphold the rule of law or presumption of innocence as were later defined. Also, the concept of resistance is discussed infrequently compared to justice and equity within ancient times. Thus, these perspectives are foundational, but do not encompass the whole source of understanding justice, equity and resistance. Across continents and periods, however, these major concepts shared immense similarities, highlighting a preference for
predominantly Christian culture, presenting responses to new challenges and systematising jurisprudence through scholastic endeavours. Catholic philosopher Thomas
Aquinas posited justice as a voluntary, perpetual virtue, to render what one is owed, primarily in accordance with God, assisted by the natural senses and reason. He also affirmed a right of rebellion. Aquinas argued that tyranny was an act of ‘sedition’ by rulers, essentially invalidating just law through violent imposition of one’s will on citizens. This reformed ancient practices, empowering those who were disadvantaged from corrupt and inept rulers. During the Enlightenment, challenges to monarchies created discussion around resistance and redefining justice. John Locke upheld a right to resist regarding private property, as well as a right of revolution against governments abusing power, Defending ‘life, liberty and property’. A rise in private ownership and liberal thought necessitated this reassessment of justice, equity and resistance, opposing absolute rule that could be abused. Comparatively, renowned jurist Sir William Blackstone formulated the Blackstone Ratio, a cornerstone of modern equality through the presumption of innocence. These views on justice, equity and resistance would subsequently inform modern views and shape our laws, providing an interesting reminder of the roots of our legal structure and bearing striking resemblance to how we uphold the right of the individual in the face of injustice.
Equity has been primarily illustrated in 20th Century jurisprudence, with re-examinations of ‘justice’ and clarification of ‘resistance’. John Rawls equated justice with fairness, affirming all people are entitled to equal minimum rights and liberties. He defined equity as benefits for ‘the least advantaged’, which he formulated as critical to justice through principle 2a. Positivist H.L.A. Hart treated justice as requiring distributive equity applied to everyone impartially, founded on ‘treating like cases alike’ to promote fairness. In contrast, Australian legal philosopher John Finnis reformulated natural law through a modern lens and prioritised the common good as upholding ‘justice, equity and fairness’. Jurisprudence was re-evaluated across continents as globalisation intensified, though still resembling a Western view of justice in Australia and other European nations.
The popularity of Civil Rights movements in the post-WW2 era represented resistance to oppressive power structures. As a consequence, Critical legal theory developed during the 1970s opposed laws that upheld a discriminatory status quo, ergo advocating for dismantling the imbalances in justice. Critical Race Theory (CRT), rooted in combatting the more subverted elements of racism, commenced as an underground movement that has dominated legal academia, underscoring equity and resistance as being paramount for justice. Discussions surrounding the relations between race, sex, age and disability compounded into the framework of intersectionality, promoted by Kimberlé Crenshaw, examining how law both empowers and oppresses. CRT and intersectionality have represented an avenue of new jurisprudence that elevated previously marginalised voices and sought to dismantle both explicit and implicit bias. These modern philosophies on justice, equity and resistance have impacted our society considerably and are an intriguing indication of how far we have progressed compared to even centuries prior.
IV Pragmatic Application
Theoretical conceptions of justice, equity and resistance have led to a pragmatic application, yet failures in the system occur within totalitarian countries and towards those who are marginalised in the West. This limits justice and denies equitable access to remedies.
The Magna Carta stipulated due process and swiftness of justice, acting as a bedrock for legal documents for centuries. The inalienable rights of all humans are the ‘foundation of justice’ internationally through the Universal Declaration of Human Rights, binding on global Member States. Enforcement remains a contention, especially in balancing state sovereignty and the diverging views on justice with UN expectations. Such examples include the conviction of only 62 genocide perpetrators following the Rwandan Genocide.
Contemporary Australian law relies on these three terms. Though not explicitly mentioned, justice and equity are exemplified in Chapters 1–3 of the Australian Constitution, outlining the separation of powers between governmental arms, preventing abuses of powers and centralised authority. Clause 5 ascertains the rule of law, binding the Constitution and other laws to all Australians. Another example is the Judiciary Act 1903 (Cth), where appealing can remedy mistakes in law, thus providing a just and even equitable remedy. Resistance and equity were strongly considered in legal application in the latter 20th Century. Mabo v Queensland (No 2) categorically rejected ‘terra nullius’, recognising native title at common law. This landmark case incorporates equitable remedies and demonstrates resistance to previous legal norms against Indigenous land rights.
Moreover, the Australian Human Rights Commission and Legal Aid empower the marginalised, providing accessible avenues for just remedies and legal information, promoting social egalitarianism through intersectionality. This aligns with biblical principles of charity and care for the poor and disadvantaged, along with the Magna Carta in upholding due process for the accused. Though some areas of Australian law lack equitable remedies, the law has been overall successful in applying justice equally in Western territories, yet gaps exist in fully prioritising social justice.
V Conclusion
From ancient history through to the modern world, ideas surrounding justice, equity and resistance have been perceived differently, involving natural, religious and secular elements. Though contextually dependent,
REFERENCES
1: Peter R. A. Gray, ‘Do the Walls Have Ears? Indigenous Title and Courts in Australia’ (2000) 28(2) International Journal of Legal Information 185, 193.
2: Hammurabi, The Code of Hammurabi, tr L. W. King (University of Chicago Press, 1904) 9.
3: A. Leo Oppenheim, Ancient Mesopotamia: Portrait of a Dead Civilization, ed Erica Reiner (University of Chicago Press, rev ed, 1977) 158.
4: Aristotle, Nicomachean Ethics, tr Robert C. Bartlett & Susan D Collins (University of Chicago Press, 2011)
5: Aristotle, Politics, tr Benjamin Jowett (Oxford University Press, 1908) 187–193.
9: Proverbs 1:3. See Psalm 96:10; Jeremiah 22:3; Amos 5:24.
10: 2 Samuel 8:15; 1 Chronicles 18:14. See also Proverbs 29:14.
11: Matthew 23:23.
12: J. B. Moyle, The Institutes of Justinian (Oxford University Press, 5th ed, 1913) 4.
13: Thomas Aquinas, Summa Theologiæ (Burns, Oates & Washburne Ltd, 2nd ed, 1920) pt. 2–2, q 58, art 1.
14: Ibid, q 42, art 3.
15: John Locke, Two Treatises on Government (R. Griffin and Company, 1823) 163.
16: Ibid 222–223.
17: Sir William Blackstone, Commentaries on the Laws of England (J. B. Lippincott Company, 1st ed, 1893) ch 27.
18: John Rawls, A Theory of Justice: Revised Edition (Harvard University Press, rev ed, 1999) ch 1.
19: Ibid 266.
20: H.L.A. Hart, The Concept of Law (Clarendon Press, 1961) 160.
21: John Finnis, Natural Law and Natural Rights (Oxford University Press, 2nd ed, 2011).
22: ‘critical legal theory’, Cornell Law School (Web Page, August 2022) <https://www.law.cornell.edu/wex/critical_legal_theory>.
23: Brittney Cooper, ‘Intersectionality’ in Lisa Disch and Mary Hawkesworth (eds), The Oxford Handbook of Feminist Theory (Oxford University Press, 2016) 385.
24: Magna Carta (1297) cl 39.
25: Ibid cl 40.
26: Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, UN Doc A/810 (10 December 1948) preamble para 1.
27: ‘The Rwanda Genocide’, United States Holocaust Memorial Museum (Web Page, 5 April 2021) <https://encyclopedia.ushmm.org/content/en/article /the-rwanda-genocide>.
28: Australian Constitution, chs 1–3.
29: Ibid cl 5.
30: Judiciary Act 1903 (Cth) pt 5.
31: Mabo v Queensland (No 2) (1992) 175 CLR 1, [41]–[42] and [55]–[56].
32:Tom Campbell, ‘Can the Law Deliver Social Justice?’ (2001) 5(1) University of Western Sydney Law Review 43.
who pays for climate justice? corporporate power & resistance in Australia
by Aaditya Kadam
I INTRODUCTION
When Australians talk about climate inaction, governments bear the majority of the blame. Yet private corporations — particularly in fossil fuels industries — also drive much of the problem. Australia is the world’s third largest exporter of coal, oil and gas, which accounts for 80% of the nation’s global pollution. A handful of these companies are responsible for this output whilst influencing the very policies meant to regulate them.
The 2024-25 federal budget, which recorded a $9.3 billion surplus driven by fossil fuel profits, simultaneously promised clean energy investment whilst funding tens of billions in subsidies and support to the fossil fuel sector. This political choice entrenches dependence on carbon-intensive industries and delays meaningful decarbonisation.
Through lobbying and political donations, corporations protect profits whilst shifting the economic and social costs of climate change onto others. The result is an uneven burden: First Nations communities, our Pacific Neighbours and low-income households carry the heaviest impacts. This imbalance raises the question — who really pays for climate justice?
II CORPORATE CAPTURE AND WEAK LIABILITY
A Political Influence
Fossil fuel companies are among the largest donors to major parties, ensuring ambitious climate policies are watered down or delayed. This corporate capture allows industries to influence the very rules meant to regulate them.
B The Legal Gaps
Australia relies on fragmented laws and modest penalties which rarely shift corporate behavior. Hence, environmental fines are absorbed as a cost of business, not a deterrent. In Sharma v Minister for the Environment, the Federal Court recognised a duty of care to protect children from climate harms. The appeal overturned it, reflecting the courts’ reluctance to impose systemic liability.
C Consequences
Without stronger frameworks, corporations externalise costs while households, taxpayers and vulnerable communities bear the damage.
III CLIMATE JUSTICE AND EQUITY
A First Nations Communities
Resource projects such as gas expansions in the Northern Territory proceed despite strong Indigenous opposition. These developments threaten Country, undermine cultural rights and impose long-term environmental risks. The lack of consent highlights how corporations externalise costs onto First Nations people for the benefit of profits.
B Pacific Neighbours
For Pacific Island nations, climate change is not abstract but tangible. Rising sea levels have already been displacing communities and threatening state sovereignty. Australia’s continued reliance on fossil fuel exports shifts the region's heaviest burdens onto those least responsible for emissions.
C Low-Income Households
Domestically, the costs of decarbonisation fall hardest on low-income households. Rising energy prices and regressive transition policies mean that those with the least capacity to absorb costs subsidise both corporate profit and government inaction.
D The Equity Lens
True climate justice requires shifting responsibility upwards. Those who profit most from emissions should shoulder the greatest share of decarbonisation. The equity lens asks: who caused the harm, who benefits from it, who suffers the consequences, and who has the capacity to respond?
First, the polluter-pays principle demands that historic and large-scale emitters fund mitigation and adaptation, rather than externalising the burden to vulnerable groups.
Second, the capacity to pay recognises that wealthy corporations and high-income nations can better absorb transition costs than marginalised commutes.
Third, distributive and procedural justice emphasises that the benefits of clean-energy investment should flow to those most affected, while decision making must also include First Nation voices and frontline communities.
An equity-centered climate framework must be embedded into law: corporate actors should face binding liability
for emissions and governments should redistribute transition costs away from low-income households and towards major emitters. Without this rebalancing, climate policy will perpetuate rather than correct existing inequalities.
IV PATHWAYS FORWARD
A Stronger Laws
Australia needs liability frameworks that make corporations directly accountable for climate harms. Options include mandatory supply chain due diligence, enforceable climate risk disclosures, and stronger polluter-pays policies. Without this, corporate capture will continue to undermine meaningful reform.
B Indigenous Leadership
Indigenous governance provides a different model for environmental stewardship — one grounded in Country and survival rather than profit. Elevating Indigenous leadership in climate decision-making is not only a matter of justice but a necessary step in building sustainable futures.
C Beyond Law Reform
Even with legal frameworks, corporations find ways to comply on paper while continuing practices that drive environmental harm — for example, by outsourcing high emission activities to suppliers in less regulated jurisdictions or by using creative accounting practices to mask their impact on climate. This highlights that law alone is insufficient to shift entrenched corporate behavior.
Grassroots movements have played an important role in closing the gap. Community-led resistance — from protests at extraction sites to campaigns against local infrastructure — can delay or halt developments that threaten ecosystems and the frontline communities. Shareholder activism increasingly leverages investor power to demand corporate climate commitments, with resolutions on net-zero targets, emissions disclosure and board diversity gaining traction. Meanwhile, divestment campaigns have pressured financial institutions and superannuation funds to withdraw support from carbon-intensive sectors, reshaping investment flows.
These strategies are working because they challenge a
inaction as a reputational and financial risk. They also demonstrate that legitimacy precedes legality: when enough stakeholders — from consumers to institutional investors — demand accountability, corporate norms shift even before regulations catch up.
An effective climate response requires synergy between legal reform and civic pressure. While stronger laws establish enforceable baselines, persistent activism
Corporate power sits at the centre of Australia’s climate challenge. While governments play their part, it is also corporations that drive emissions and shape weak regulatory frameworks to their advantage. The result is an unjust system where First Nations communities, Pacific neighbors and low-income households bear disproportionate costs. Climate justice demands more than incremental reform — it requires tougher liability laws, resistance and Indigenous leadership. The question is simple: will those most responsible finally pay, or will justice remain out of reach?
What if the prisons that define our justice system weren’t inevitable? What if, instead of locking people away, we invested in healing, community, and restoration?
As of 30 June 2024, there were 44,403 adult prisoners in Australia. Yet prisons consistently fail to heal, fail to protect, and fail to deliver true justice. The system does not break cycles of harm, but rather deepens them. First Nations peoples, migrants, and other marginalised communities bear the heaviest toll, locked into a carceral logic that was never designed to serve justice.
But prisons are not a natural feature of society. They are a political choice. If they are a choice, then other choices are possible. Across the world, alternatives have already begun to show that justice can look like something else entirely.
The Myth of Imprisonment as Justice
The modern Australian prison system grew out of colonial ideas of punishment and exclusion. From the penal colonies of the 18th century to today’s sprawling carceral estate, the central idea has remained the same: justice is achieved by isolating those who cause harm.
Yet this approach rests on myths. Prisons do not reduce crime rates in any meaningful way. They do not deter harm, because harm so often emerges from unmet needs such as poverty, addiction, trauma, and social disconnection. They do not “rehabilitate”, as recidivism rates demon-
strate, with a Productivity Commission report indicating over half (53.1%) of released prisoners reoffend within two years.
Instead, prisons warehouse people, removing them from the community while leaving the conditions that gave rise to harm untouched. For First Nations peoples, the prison system is not only a site of exclusion but also an extension of colonisation itself. Aboriginal and Torres Strait Islander peoples make up just 3.2% of the population yet around 32% of the prison population. This is not incidental. It reflects systemic discrimination, the over-policing of communities, and a justice system designed to control rather than to heal.
Imagining Alternatives: Lessons from Around the World
If prisons are failing, what might work instead? Looking abroad reveals a myriad of approaches that refuse the cycle of injustice.
Norway treats incarceration as a temporary interruption as opposed to a life-defining sentence. Prisons like Halden are designed around dignity, education, and reintegration. The focus is not on punishment but on preparing people to return to society. Unsurprisingly, Norway has a recidivism rate of 20%. This is one of the lowest in the world and less than half that of Australia.
In post-apartheid South Africa, communities pioneered restorative justice practices that sought not only to punish wrongdoing
but to repair relationships. Restorative justice brings together victims, offenders, and communities in dialogue. In lieu of sidelining victims, it centres their needs, asking what will make them whole again. It requires accountability from those who caused harm while also offering pathways to redemption. Importantly, it builds stronger communities that are better equipped to prevent harm in the future.
In the US, where mass incarceration has reached staggering levels, abolitionist activists are challenging the very logic of imprisonment. Figures like Angela Davis and organisations such as Critical Resistance argue that imprisoning people is a symptom of deeper inequalities. Their work pushes beyond reform, demanding investment in housing, healthcare, education, and social supports, the very things proven to reduce crime in the first place. By addressing root causes and not symptoms, abolition imagines a society where prisons are unnecessary.
Could Australia Choose Differently?
The question for Australia is not whether alternatives exist, they do, but whether we have the courage to embrace them. Doing so would mean challenging deep-seated assumptions about justice and safety.
First, it would mean acknowledging that prisons have not made us safer. True safety does not come from locking people away. It comes from stable housing, accessible healthcare, strong community connections, and equitable opportunity. In fact, every dollar spent building another prison is a dollar not spent on the services
that could fundamentally reduce harm before it occurs.
Second, it would mean focusing on the voices of those most impacted: First Nations communities, migrants, and people with lived experience of incarceration. Aboriginal-led organisations like Sisters Inside and Change the Record already advocate for community-driven approaches. Listening to them means reducing incarceration whilst simultaneously dismantling the systemic racism that underpins it.
Third, it would mean shifting from punishment to restoration. Restorative justice initiatives already exist in Australia, particularly in youth justice settings, where conferencing programs have reduced reoffending and improved victim satisfaction. Scaling these approaches could transform how we deal with harm, as an opportunity for accountability, repair, and growth.
The Barriers to Change
Reimagining justice is not simple. Political narratives around “tough on crime” policies remain prominent. Prisons are often justified to the public as symbols of order and safety, even when the evidence shows otherwise. The UNSW article above argues that despite increasing prison populations, long-term trends in homicide (a reliable indicator of serious violence) have fallen — e.g., from ~1.9 per 100,000 in 1993 to ~1 per 100,000 in 2023 in Australia. Also, data from Victoria: in 2021-22, 39.3% of released prisoners returned to prison within two years; the
national rate is ~43%. This points to prisons less effective at ensuring long term safety or reducing re-offending.Private prison operators and correctional industries also have vested interests in maintaining the status quo.
Fear, too, is a barrier. It can be easier to believe that prisons protect us than to confront the uncomfortable truth that harm cannot be eliminated through punishment.
A World Absurdly, Impossibly Human
To ask “what if prisons weren’t inevitable?” is not to deny that harm exists. It is to ask whether the response to harm must always be prisons.
What if, instead of stripping people of dignity, we invested in their humanity? What if, instead of isolating them, we built stronger communities that could hold accountability without resorting to exile? What if, instead of perpetuating cycles of trauma, we chose healing?
Such questions may sound absurd, radical, and impossible. But as global examples show, they are already being answered in practice. Norway’s humane prisons, South Africa’s restorative justice, and the US abolitionist movement all show that another world is not only imaginable but within reach.
For Australia, the choice is clear. We can continue down the path of punishment, pouring billions into prisons that fail us. The Cost of Australia’s Prisons in 2024 shows that in 2022-23 federal & state
governments spent approx $6.4 billion on prison construction and operation. Or we can choose something else: a justice system rooted in dignity, accountability, and care.
REFERENCES:
1: Australian Bureau of Statistics, Prisoners in Australia (19 December 2024) <https://www.abs. gov.au/statistics/people/crime-and-justice/ prisoners-australia/latest-release>.
2: Australian Bureau of Statistics, Australia: Aboriginal and Torres Strait Islander population summary (1 July 2022) <https://www.abs.gov.au/articles/australia-aboriginal-and-torres-strait -islander-population-summary>; Australian Institute of Health and Welfare, The health and wellbeing of First Nations people in Australia's prisons 2022 (2022) 1–19.
3: Meagan Denny, ‘Norway's Prison System: Investigating Recidivism and Reintegration’ (2016) 10(10) Bridges: A Journal of Student Research 21, 21–37.
4: Angela Y. Davis, et al., ‘Critical Resistance: 20 Years of Strategy and Struggle for Abolition’ (Speech, Critical Resistance, 9 December 2018) <https://criticalresistance.org/resources/critical-resistance-20-years-of-strategy-and-struggle-for -abolition/>.
5: Emma Russell et al., ‘Prisons don’t create safer communities, so why is Australia spending billions on building them?’, UNSW Newsroom (Webpage, 23 January 2025) <https://www.unsw.edu.au/newsroom/news/2025/01/prisons-dont-create-safer -communities-so-why-is-australia-spendingbillions-on-building-them>.
6: Sentencing Advisory Council (Vic), ‘Released Prisoners Returning to Prison’, Sentencing Advisory Council (Webpage, 4 February 2025) <https://www .sentencingcouncil.vic.gov.au/sentencingstatistics/released-prisoners-returning-to-prison>.
7: Mia Schlicht, ‘The Cost of Australia’s Prisons in 2024’, Institute of Public Affairs (Research Note, 14 June 2024) 1–7 <https://ipa.org.au/wp-content/up loads/2024/06/IPA-Research-Note-June-2024 -Cost-of-Prisons-2024.pdf>.
In the late 1700s, Britain began transporting convicts to Australian shores. Forced into labour, these convicts, in addition to indentured Indigenous slave labourers, laid the foundations of modern Australian society and made up a significant portion of the population at the time. More than two centuries later, Australia appears unable or unwilling to let go of its penal legacy.
Modern Australia is facing a growing incarceration crisis. The facts show incarceration rates are rising, and recidivism remains high. In 1980, just 0.07 percent of the adult population was behind bars. By January 2025, that figure had more than doubled to 0.16 percent. More than one percent of the Northern Territory's adult population is now incarcerated, marking the first time any Australian jurisdiction has reached this level.
As of March 2025, 46,081 people were in custody. This marks a four percent increase from December 2024 and a nine percent rise over the past decade. The statistics are even more alarming for Indigenous Australians. Despite representing only 3.8 percent of the national population, they account for 37 percent of all people in custody. Indigenous Australians are a staggering 13.5 times more likely to be incarcerated than their non-Indigenous counterparts, placing Australia among the countries with the highest rates of Indigenous imprisonment and policing globally.
Having looked at the statistics, one might assume that rising incarceration rates would correlate with falling crime. The data tells a different story. In Victoria, crime has surged by 20.1 percent, the highest level since 2016. In New South Wales, three major offence categories increased between March 2023 and March 2025, while only one decreased. The rest remained stable. Queensland reported a 1.9 percent rise in crime
over the past year. Other states have yet to release updated figures.
Not only has crime shown no significant decrease, but reoffending rates remain stubbornly high. Nationally, 43 percent of people released from prison return within two years. This is despite the government spending more than $6.4 billion annually on prison operations, more than double the cost a decade ago.
The growth in incarceration is not an inevitable trend. It is avoidable, it is a policy choice. While the Australian government claims that prisons are meant to rehabilitate, the reality is starkly different. Many prisoners are confined to cells smaller than the average bedroom, often with little access to support services. A 2015 report in New South Wales showed that 65 percent of prisoners had experienced or witnessed at least one traumatic event. The conditions during incarceration often exacer-
bates these existing traumas and leads to an endless cycle of intergenerational poverty. Upon release, they are frequently left without housing, transportation or meaningful financial assistance even further perpetuating this cycle.
Rather than investing in rehabilitation, governments continue to pour money into prison construction. Prisons are erroneously promoted as economic drivers, yet the evidence suggests they do little to improve communities or community safety. The government has also allowed the commodification of the prison system, privately run prisons claiming to be more accountable and cost friendly to the taxpayer. Despite these claims many private facilities have failed to meet their obligations, failing to provide adequate support or healthcare and providing unsafe working environments. Privately run Clarence prison in New South Wales has failed to maintain
1: Emma Russel et al., ‘Prisons Don’t Create Safer Communities, So why is Australia Spending Billions on Building Them?’, The Conversation (online, 23 January 2025).
2: Ibid.
3: Australian Bureau of Statistics, Corrective Services, Australia, March Quarter 2025 (Catalogue, 12 June 2025).
4: Ibid; Justice Reform Initiative, Alternatives to Incarceration in NSW: Highlights Paper (Report, March 2024) 1, 2. <https://assets.na tionbuilder.com/justicereforminitiative/pag es/337/attachments/original/1710872167/J RI_Alternatives_Report_NSW_Highlights_EM BARGOED_32_.pdf?1710872167> (‘Justice Reform Initiative’).
5: Australian Bureau of Statistics, Estimates of Aboriginal and Torres Strait Islander Australians (Catalogue, 31 August 2023).
6: ABS (n 3).
7: Justice Reform Initiative (n 4).
8: Russel et al. (n 1).
9: Crime Statistics Agency Victoria, Family Incidents Recorded by Victoria Police July 2023 to June 2024 (Report, 2024) <https://www.crimestatistics.vic.gov.au/ family-incidents-recorded-by-victoria -police-july-2023-to-june-2024>.
10: NSW Bureau of Crime Statistics and Research, NSW Recorded Crime Statistics Quarterly Update: March 2025 (Media Release, 12 June 2025) <https://www.bocsar .nsw.gov.au/media/2025/mr-nsw-recorded -crime-statistics-quarterly-update-mar-2025 .html>.
13: Sentencing Council Victoria, Released Prisoners Returning to Prison (Web Page, 2025) <https://www.sentencingcouncil.vic. gov.au/sentencing-statistics/releasedprisoners-returning-to-prison>.
14: Mia Schlicht, The Cost of Australia’s Prisons in 2024 (Research Note, Institute of Public Affairs, June 2024).
16: Callum Godde, ‘Prisons Don’t Create Safer Communities, So Why Is Australia Spending Billions on Building Them?’, The Conversation (online, 22 January 2025) <https://the conversation.com/prisons-dont-createsafer-communities-so-why-is-australiaspending-billions-on-building-them-247238>.
adequate staffing due to low pay and unsafe working conditions. The real solution lies in redirecting funds toward housing, healthcare, education and employment. These are investments that strengthen communities and reduce the root causes of crime.
Mental health care in prisons is another area of deep concern. In 2022, more than half of those entering custody reported a prior mental health diagnosis, including substance use disorders. Nearly 43 percent reported high or very high levels of psychological distress. Yet many receive little or no treatment. Under-resourced prison mental health services are often forced to prioritise only the most severe cases, leaving others without care. This neglect not only violates human rights but also contributes to the cycle of incarceration. Research shows that untreated mental illness is linked to poorer outcomes after release.
lias-welfare/adults-in-prison> (‘AIHW’).
20: Ibid.
21: Matilda Boseley, ‘Prison Mental Health Services Woefully Underfunded, Experts Say’, ABC News (online, 23 March 2023) <https://www.abc.net.au/news/2023-03 -23/prison-mental-health-woefully-under -funded-experts-say/10197227>.
22: United Nations General Assembly, Basic Principles for the Treatment of Prisoners, GA Res 45/111, UN Doc A/RES/45/111 (adopted 14 December 1990).
23: Boseley (n 21).
24: AIHW (n 19).
25: Roger Wilkins and Inga Lass, The Changing Profile of Poverty in Australia (Working Paper No 7/23, Melbourne Institute: Applied Economic & Social Research, University of Melbourne, July 2023) 1, 18.
26: Ibid.
27: Astrid Prange de Oliveira, The Story Behind the Netherlands’ Empty Prisons (DW, 20 October 2024) <https://www.dw.com/en/the-story-behind-the-netherlands-empty-prisons/a-70544397>.
28: First Step Alliance, Rehabilitation Lessons from Norway’s Prison System (Web Page, 3 January 2022) <https://www.firststepalliance.org/post/norway-prison-system-lessons>.
29: Ibid.
30: Ibid.
But the entire blame cannot be placed on the government, as social stigma also plays a powerful role. Despite Australia’s convict origins, society remains deeply prejudiced against those with criminal records. Many incarcerated individuals already face significant disadvantages, including low education levels, poorer literacy, poor mental health and limited work history. Once labelled a criminal, finding employment becomes even harder, compounded for Indigenous ex-prisoners who face intersecting forms of disadvantage. Yet stable employment is one of the most important factors in successful reintegration.
Australia has the potential to reduce recidivism by investing in community support and post-release services, including stable housing, job training and early access to employment assistance. This is not an impossible problem to solve. Countries like Norway and the Netherlands have shown that
meaningful reform is possible.
The Netherlands offers a compelling example through targeted investment in mental health care and psychological rehabilitation programs tailored to individual needs, the Netherlands cut its prison population by 44 percent and saw a decline in serious crime.
Norway has taken a similar path. By overhauling their prison system and focusing on rehabilitation rather than punishment, they have reduced their recidivism rate from 70 percent to 20 percent. The country opted out of large, centralised facilities, choosing instead to develop small, community-based facilities designed to keep families connected. These centres provide education, drug and alcohol counselling, and vocational training in areas such as mechanics and carpentry. The Norwegian model prepares individuals for life after prison, not just by addressing behavioural issues but by improving employability. The result has been a sharp decline in recidivism and a stronger, more inclusive economy.
Australia has the capacity to follow suit. The evidence is clear. Prisons, as they currently operate, are not working. Real change requires a shift in priorities from punishment to rehabilitation, from isolation to reintegration. It is time for the government to confront the facts and commit to meaningful reform, recognising intersecting forms of disadvantage that create less prominent biases against marginalised groups. A better future is possible, but only if we choose to build it.
FROM CLIMATE CHANGE TO COLONIALISM: RISING HEAT, RISING RESISTANCE
by Nadine Mohammed
Contemporary and historic narratives of climate change have failed to appropriately address the disastrous link colonialism had and continues to have on the climate crisis. Irrespective of the dire need for collective activism amidst the worsening climate condition as temperatures soar, sea levels rise and extreme weather events become commonplace, the cause has failed to harness intersectional support and recognition of the link between climate and Indigenous justice. The constant segregation of the climate crisis from other social justice movements is a key contributor to this lack of acknowledgment, positioning the cause as separate from public politics, when it is inherently a political issue.
Climate change and colonialism
The imperialist legacy of colonialism directly contributes to the climate crisis through its practices of resource extraction, land dispossession, environmental degradation and militarisation. The Intergovernmental Panel on Climate Change (IPCC) is the United Nations body for assessing the science behind climate change. The IPCC prepares comprehensive assessment reports on climate change, its causes, potential impacts and response solutions. Whilst the reports themselves are not legally binding, they are used to influence international negotiation and policy regarding climate change like the Paris Agreement. The IPCC conducted five assessment reports since 1990 which all failed to address this key element of colonial contribution, until the sixth report which was published in 2022.
The report attributed vulnerability of ecosystems and people to patterns of intersecting socioeconomic development, unsustainable land and sea use, inequity, marginalisation, historical and ongoing patterns of inequity such as colonialism, and governance. This was the first time this link had been officially recognised. Historically, Indigenous communities across the globe have maintained a reciprocal connection to land, one intrinsic to identity and culture. This perception is absent from colonial interpretations which prioritise resource extraction, land degradation and military emissions for economic and political benefit. The dangers of these conflicting dichotomies continue to play out within modern society.
A national perspective
White Australia has a black history. Embedded within our publicised national identity of multiculturalism, acceptance and inclusivity is a plethora of discriminatory and oppressive systems and ideologies. The British invasion of modern-day Australia initiated mining and harvesting of extracted resources on an immense scale, driving habitat loss for countless species and collapse of native
ecosystems underpinned by deliberate, economically-driven imperial influences. Extractive colonialism not only drives wealth inequality between settler colonists and indigenous peoples, but directly contributes to global warming and pollution that disproportionately affects poorer, often Indigenous communities worldwide.
Indigenous Australian communities established land conservation practices that allowed Australian ecosystems to thrive for millennia. These practices included cool burns, weed control, fish traps and seasonal harvesting all carried out sustainably with respect to the availability of natural resources. These methods evolved from a sophisticated understanding Indigenous communities had of the environment and their overarching respect for the land. Colonial ideologies rejected the immense ecological knowledge held by First Nations communities, consequently resulting in poor management of ecosystems and climate destruction. European colonists introduced plant and animal species to the Australian environment without an understanding of the impact this may have on native ecosystems, leading to habitat destruction and spread of disease.
The absence of appropriate land management resulted in catastrophic bushfires across Australia, particularly between 2019-20 where up to 19 million hectares of land were burnt, impacting approximately 3 billion animals. This led to the development of the National Bushfire Recovery Fund which cost the Government $2.2 billion. Australia is also a leading contributor to extractive colonialism with its mining industry amounting to 75% of its export revenue. This industry directly causes deforestation and a loss of wildlife and biodiversity, soil erosion and degradation on surrounding areas of mining sites, the release of harmful substances into the air and water that cause serious health issues if inhaled, drastic greenhouse gas emissions and the disruption of lands of Indigenous communities.
An International perspective
These colonial practices are not unique to Australia but rather prevail on an international scale through settlement, forced displacement and militarism, all of which
contribute signficantly to the climate crisis. The Paris Agreement is a legally binding treaty that entered into force on 4 November 2016 with 195 joining parties which establishes long term climate goals guiding all nations to:
Substantially reduce global greenhouse gas emissions to hold global temperature increase to well below 2°C above pre-industrial levels and pursue efforts to limit it to 1.5°C
• Periodically assess collective progress towards achieving the purpose of this agreement and its long-term goals
• Provide financial assistance to developing countries to mitigate climate change, strengthen resilience and enhance abilities to adapt to climate impacts.
The state of Israel is a joining party to the Paris Agreement, yet its contribution to the climate crisis is catastrophic. Israel’s occupation and ongoing bombardment of the Gaza strip alone has polluted the land with approximately 37 million tons of debris, contaminating soil and water with toxic substances that leave them unfit for human consumption and use. The conflict emissions in the two months proceeding October 2023 alone equated to the burning of at least 150 000 tonnes of coal. Forced power removal resulted in all five of Gaza’s wastewater treatment plants being forced offline resulting in sewage flooding the streets, whilst at least 130 000 cubic meters of wastewater was discharged into the Mediterranean Sea daily, impacting not only Palestinians, but also surrounding Arab nations.
The Russia-Ukraine war continues to cause disastrous damage in the Black Sea as Russia continues to occupy approximately 20% of Ukraine. These military operations have left numerous oil tankers leaking approximately 6,300 tons of mazut oil into the sea which is highly toxic for marine life and contaminates food chains over a prolonged period. The occupation of Xinjiang as a Chinese territory led to mass exploitation of coal, oil and natural gas by China which resulted in air and water pollution, along with forced removal of the Indigenous Uyghur and Turkic population through violent means. Despite these practices demonstrating clear violations of the Paris agreement, unfortunately, there is no enforcement for failing to adhere.
Future Directions
In 2023, climate activist Greta Thunberg advocated for the freedom of Palestinians from occupation at a climate rally only to be ambushed on stage by a protest attendee who claimed he “came here for a climate demonstration, not a political view”. This rhetoric is inherently dangerous. Not only does it eradicate climate change issues from mainstream narratives that invoke radical change, but it fails to acknowledge the genuine fact that climate change is an inherently political issue. With its foundations stemming from colonisation and the deliberate targeting and erasure of Indigeneity, it is senseless to determine ways to progress that fail to consider the historic evolution of this calamity. With political tensions rising and resistance from marginalised communities gaining traction, it is important now more than ever to force the climate crisis into conversation and dismantle the structures that exist which encourage the continuous degradation of our planet.
3: Department of Climate Change, Energy, the Environment and Water, Intergovernmental Panel on Climate Change https://www.dcceew.gov.au/climate-change/international -climate-action/intergovernmental-panel.
4: Intergovernmental Panel on Climate Change, ‘Summary for Policymakers’ in H-O Pörtner et al (eds), Climate Change 2022: Impacts, Adaptation and Vulnerability — Contribution of Working Group II to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge University Press, 2022) 3, 12.
5: Evolve Communities, NAIDOC Special on Australia’s History: Why White Australia Has a Black History and How It’s Impacted Australian People (Webpage, 2020) <https://www.evolves.com.au/naidoc-special-why-white -australia-has-black-history/>.
6: Reconciliation Australia, What It Means to Be Australian (Web Page, 1 June 2012) <https://www.reconciliation.org.au/what-is-means-to-be-australian/>.
7: Nature Australia, ‘How Humans Have Impacted Australia’s Nature Over Time’ (Web Page, Nature Australia, 2 October 2019) <https://www.natureaustralia.org.au/what-we-do/ our-insights/perspectives/human-impact-nature-australia/#:~:text=With%20the%20arrival%20of%20Europeans, extracted%20resources%20like%20never%20before>.
8: Binthi Land Holding Group Aboriginal Corporation, ‘Aboriginal Land Management Practices’ (Web Page, Binthi Land Holding Group Aboriginal Corporation, 27 June 2023) <https://binthi.org.au/land-management-practices/>.
9: National Library of Australia, ‘Colonising the Environment’ (Web Page, National Library of Australia, 17 October 2024) <https://www.library.gov.au/learn/digital-classroom/ legend-and-legacy-james-cook/colonising-environment>.
10: WWF-Australia, Australian Bushfires of 2019/2020 (Web Page, WWF-Australia, n.d.) <https://wwf.org.au/what-we -do/australian-bushfires/>.
11: Australian National Audit Office, Administration of the National Bushfire Recovery Agency (Report No 46 of 2020–21, Australian National Audit Office, 28 June 2021) <https://www.anao.gov.au/work/performance-audit/ administration-the-national-bushfire-recovery-agency>.
13: United Nations, The Paris Agreement (Web Page, United Nations, n.d.) <https://www.un.org/en/climatechange/ paris-agreement>.
14: Amira Shaheen, Rana Dajani, Kate Zinszer, Yara Ashour and Samer Abuzerr, ‘The War on the Gaza Strip and Its Consequences on Global Warming’ (2024) 6 Frontiers in Humanities and Digital Humanities 1–3.
15: Ibid 2.
16: Council on Foreign Relations, War in Ukraine (Web Page, Center for Preventive Action, 15 September 2025) <https://www.cfr.org/global-conflict-tracker/conflict/conflict-ukraine>.
17: Andriy Zagorodnyuk, Ukraine’s New Theory of Victory Should be Strategic Neutralization (Research Paper, Carnegie Endowment for International Peace, 18 June 2025) <https://www.frontiersin.org/journals/human-dynamics /articles/10.3389/fhumd.2024.1463902/full>.
18: Anti-Slavery International, Uyghur Forced Labour in Green Technology (Report, Anti-Slavery International, January 2024) <https://www.antislavery.org/reports/uyghur-forced-labour-green-technology/>.
19: BBC News, ‘Man grabs Greta Thunberg's microphone after pro-Palestinian chants at climate rally’, BBC News (online at 13 November 2023) <https://www.bbc.com/news /av/world-europe-67399096>. 19
Consequences: The Politics of f
Pornography does not depict desire; it manufactures it. It is patriarchy’s pedagogy, rendering women’s degradation indistinguishable from sex. This is the fundamental critique of the feminist deconstruction of pornography; conflation of porn as sex itself. To excuse sexual violence as male essence is to mistake the patriarchy for nature, casting girls as victims in waiting, and boys, predators in waiting. For an industry built on exploitation to remain completely unregulated is a profound disregard for the safety of women and children.
Porn is a primary form of sexual education in Australia. Boys typically watch it three years before their first sexual experience, and girls, two. Pornhub and X-videos received 6.5 billion visits in August 2025, more than Twitter, Netflix, and Amazon combined. Violence against women is the crux of pornography, depicted in at least 90% of content. The message is clear; women are ‘always ready for sex and… whatever men want, irrespective of how painful, humiliating or harmful the act is’. Focused on male pleasure and power, porn is the visual manifestation of misogyny. Nowhere else is this ideology ‘so crisply, so cleanly and so succinct’. The prevalence of misogynistic beliefs in Gen Z men is rising in-step.
Consumers of violent pornography are almost four-times more likely to perpetuate serious sexual violence. Risk only slightly decreases with consumption of ‘non-violent’ pornography, as mainstream content contains enough ‘degrading, objectifying, problematic material’. Perpetrators of child sexual abuse are 11
Porn Private Desire, Public Consequences: The Politics of Porn Private Desire, Public Consequences: The Politics of Porn. PriPublic Consequences: The Politic rn. Private Desire, Public Consequences: The Politics of Porn. Private Desire, Public Consequee Desire, Public Consquences: The Politics of Porn. Private Desire, Public Consequences: The Politics ces: The Politics of Porn. Private Desire, Public Consequences: The Politics of Porn. Private Desire, Public Consequences: The Politics of Porn. By Elizabeth Cullen. Private Desire, Public Consequences: The Politics of Porn. Private Desire, Public Consequences: The Politics of Porn. Private Desire, Public Consequences: The Politics
times more likely to watch violent porn, 17 times more likely to purchase porn, and 27 times more likely to seek-out bestiality. In 2024, sexual assault in Australia has surged to a record high, despite reporting rates decreasing. NSW reported its thirteenth consecutive annual increase, with women comprising 84% of victims, the most common age group aged 10–17.
Porn has mainstreamed strangulation so thoroughly that a third of young American women report being strangled the last time they had sex. This is no innocent experimentation: strangulation is fatal; brain scans of women frequently strangled show serious damage, and a history of strangulation is one of the strongest predictors of intimate partner homicide. Nearly a quarter of women feel fearful during consensual sex. Reasons include choking, rape, forced anal sex, painful sex where their partner doesn’t stop despite asking, being pinned down, threatened with a gun or knife, being killed. Often, men’s fears included menstruation and whether the woman they’re having sex with has had ‘many prior sexual partners’. No comparison captures the pornographic ideology so perfectly. While he recoils her
1: Now & Men, ‘Episode 55: Is Masculinity Worth Saving? And How is Radical Feminism Relevant to Men? - Dr Finn Mackay’ (with Dr Finn Mackey, Podcast, 12 June 2025)
2: Childlight, Childlight Annual Report: Year 1 (Report, July 2023).
3: Semrush, Trending Websites: Global (All Industries) (Web Page, August 2025) <https://www.semrush.com/ trending-websites/global/all>.
4: Annick Billon et al, Porn: Hell Behind the Scenes (Information Report, Women’s Rights Delegation, French Senate, September 2022)
5: Gail Dines, Pornland: How Porn Has Hijacked Our Sexuality (Beacon Press, 2010) xviii.
6: Fiona Vera-Gray et al, ‘Sexual Violence as a Sexual Script in Mainstream Online Pornography’ (2021) 61(5) British Journal of Criminology 1243, 1243–60.
7: The Female Dating Strategy Podcast, ‘Episode 170: Dr Gail Dines Returns to Discuss Porn, Power, and the Collapse of Masculinity’ (with Gail Dines, Podcast, 14 May 2025).
8: Erin Clarke, ‘Gen Z Men Are Emerging as an Outlier on Gender Norms: New data shows Gen Z men are more likely to hold traditional gender beliefs than older men — and far more so than their female peers’ e61 Institute (Web Page, 17 April 2025) <https://e61.in/new-data-shows-gen-z-men-are-more -likely-to-hold-traditional-gender-beliefs-than-older-men- and-far-more-so-than-their-female-peers/>
9: Written evidence submitted by Professor Clare McGlynn (Durham University) (VAWG0038) citing Ybarra, M., et al. (2024) ‘Predictors of the Onset of Sexual Violence Perpetration in Adolescence and Emerging Adulthood’, Prevention Science, 25, pp. 1284–1297. Study of 778 youth 13-18 years old.
10: Ibid citing Mori, C., et al. (2023) ‘Exposure to sexual content and problematic sexual behaviors in children and adolescents: A systematic review and metaanalysis’, Child Abuse & Neglect, 143 (September 2023), 106255.
11: Ibid, citing Michael Slater et al, Identifying and Understanding Child Sexual Offending Behaviours and Attitudes among Australian Men
humanity, terrified she might be a ‘slut’, she fears being tortured, raped, murdered.
Feminists fought tooth and nail for the sexual revolution, to not be confined by law to the roles of wife and mother. This activism was accompanied by landmark reforms: the Married Women’s Property Act 1884 (NSW), the Sex Discrimination Act 1984 (Cth), and recently, the Abortion Law Reform Act 2019 (NSW). The billion-dollar porn industry adopts the rhetoric of ‘empowerment’ to exploit these freedoms women fought for, channeling women back into submission. If composing yourself as an object of sexual desire is so empowering, why is it almost exclusively women who do so? Perhaps because women’s ‘self-loathing is big business’ for beauty and technology industries when the pornographic ideal dominates western culture.
Any woman can now monetize her body through platforms like OnlyFans, and in a time of increasing economic instability, it's more appealing than ever. But even when promised self-ownership, women are exploited, coerced, and trafficked, their labour siphoned off by pimps, partners and networks. Reuters’s recent
12:Australian Bureau of Statistics, Recorded Crime – Victims, Latest Release (Web Page, 3 September 2025) <https://www. abs.gov.au/statistics/people/crime-and-justice/recorded- crime-victims/latest-release>
13: Ibid.
14: Debby Herbenick et al., ‘Frequency, Method, Intensity, and Health
Sequelae of Sexual Choking Among U.S. Undergraduate and Graduate Students’ (2022) 51(6) Archives of Sexual Behavior 3121. See also, for Australia, Written evidence submitted by Professor Clare McGlynn (Durham University) (VAWG0038) citing Leah Sharman et al, ‘Prevalence of Sexual Strangulation/Choking Among Australian 18–35 Year-Olds’ (2024) Archives of Sexual Behavior (advance)
15: Douglas, Heather and Leah Sharman, Choking during sex: many young people mistakenly believe it can be done safely, our study shows (6 February 2025) University of Melbourne Find an Expert <https://findanexpert.unimelb.edu.au/news/ 99230-choking-during-sex--many-young-people-mistakenly-believe-it-can-be-done-safely--our-study-shows>.
16: Written evidence submitted by Professor Clare McGlynn (Durham University) (VAWG0038) citing Hou, J., et al. ‘Structural brain morphology in young adult women who have been choked/strangled during sex: A whole-brain surface morphometry study’ (2023) 13(8) Brain Behaviour 1; Huibregtse, M., et al. (2022) ‘Frequent and Recent Nonfatal Strangulation/Choking During Sex and Its Association With fMRI Activation During Working Memory Tasks’ 16 Frontiers in Behavioral Neuroscience.
17: Women’s Health NSW, Non-Fatal Strangulation and Acquired Brain Injury in the Context of Sexual Violence: An Evidence Brief (Evidence Brief, 2024) WHNSW <https://www.itleftnomarks.com.au/an-evidence-brief/>; 18: Herbenick (n 14) 424–439.
investigation uncovered multiple cases of sexual slavery, child abuse, and nonconsensual or ‘revenge’ porn on OnlyFans between 2019 and 2024. Prostitution repackaged as ‘content creation’ works to circumvent regulatory frameworks that aim, at least in principle, to protect workers from danger. Out of the estimated 40.3 million people enslaved globally through trafficking, 79% are sexually exploited. Pornography is the 3rd-most common form of sex trafficking, after escort and sexual massage services. As Andrea Dworkin put it: ‘any violation of a woman’s body can become sex… this is the essential truth of pornography’. Any elements of a woman’s life are now a specific porn category, sexualising and violating women’s every sense of being; job, race, age, religion, health, school uniform. Child or woman, awake or asleep, alive or dead, it does not matter to pornographers.
The porn industry resists regulation because oversight threatens their bottom line: profit. Yet they have clung to the defence of ‘free speech’ since the 1970s. This concept stems from Locke’s philosophy; one is inherently entitled to life, liberty, and the fruits of their labour, and the
19: Ibid 435.
20: Ibid.
21: Married Women’s Property Act 1884 (NSW); Sex Discrimination Act 1984 (Cth); Abortion Law Reform Act 2019 (NSW).
22: Gail Dines and Julia Long, ‘Moral Panic? No. We Are Resisting the Pornification of Women’ The Guardian (UK), 1 December 2011.
23: Kristel Anciones Anguita and Mirian Checa Romero, ‘Making Money on OnlyFans? A Study on the Promotion of Erotic Content Platforms on Social Media and their Influence on Adolescents’ (2025) Sexuality & Culture (advance).
24: Linda So, Andrew R.C. Marshall, Luiza Ilie and Jason Szep, “Enslaved on OnlyFans: Women Describe Lives of Isolation and Torture”, Reuters Investigates, 22 November 2024.
25: Ibid.
26: Sex Work Decriminalisation Act 2022 (NSW); Summary Offences Act 1988 (NSW); Crimes Act 1900 (NSW) see also Sex Work Act 1994 (Vic) as amended by the Sex Work Decriminalisation Act 2022 (Vic). For discussion, see Barbara Sullivan, What Happens When Prostitution Becomes Work? Prostitution and the Shift to a Service Paradigm (Routledge, 2010).
27: Tammy J Toney-Butler, Megan Ladd and Olivia Mittel, ‘Human Trafficking’ in StatPearls (StatPearls Publishing, online at 11 January 2025) <https://www.ncbi.nlm.nih.gov/books/NBK430910/>.
28: Polaris, 2019 Data Report: The US National Human Trafficking Hotline (Report, 2020) <https://polarisproject.org/wp-content/uploads/2019/ 09/Polaris-2019-US-National-Human-Trafficking-Hotline-Data-Report. pdf>.
29: Andrea Dworkin, Intercourse (Free Press, 1987).
30: Susanna Paasonen and Laura Saarenmaa, ‘The Golden Age of Porn: Nostalgia and History in Cinema’ in Feona Attwood (ed), Pornification: Sex and Sexuality in Media Culture (Intellect, 2007) 23, 23–32.
government exists to protect these rights. Yet Mill’s ‘harm principle’ warned that such freedom is not without dangers. In as much as a private vice affects us, will it affect our public obligations. Porn is a perfect case study.
Australia’s Broadcasting Services Act 1992 (Cth) attempted to regulate ‘offensive’ material online, but failed to address ‘gender-based harms caused by the mass dissemination of pornography’. Little has been done from 1992 until now, with age verification and automated moderation being trialled in March 2026. Australia recently introduced the world’s first eSafety Commissionerer, Julie Inman-Grant, under the Online Safety Act 2021. Grant is most known for her recent policies banning social media for children and moderating adult content and extreme violence. But with digitally-native children, almost a quarter of teenagers routinely mitigate age verification barriers. These approaches have further been criticised for the potential compromise of user privacy. Yet the parallel violations endured by porn-workers remains invisible. Mia Khalifa's story is a case in point. She remains one of the most-watched pornstars and
has endured a life-time of public vilification for her three-month stint in porn. Khalifa described the contracts as so exploitative that any competent lawyer would advise, ‘do not sign this, you are giving away your life, this is a terrible, one-sided contract’.
Mill’s argued not for legislating private morality, but prosecuting the consequences of private life where it intersects with the public. Dworkin and MacKinnon’s 1983 Civil Rights Ordinance offered a valuable alternative to censorship, in line with Mill’s theory; treat violent pornography as sex discrimination, and individuals harmed can sue on this basis. In 2007, scholar Michelle Evans proposed the application of the ordinance to Australian law, highlighting the flaws of censorship. Digital rights advocate Kathryn GledhillTucker has repeatedly called for meaningful legislation to ‘temper the power of large technology companies’. Censorship policies are limited in effectiveness on a scale as vast as the internet, where porn can easily be reproduced and the global reach raises problems of legal jurisdiction. Yet, they continue to be adopted globally.
Radical feminist Gail Dines argues porn is a ‘public health
42: Ibid.
43: Ibid.
44: Ibid.
34:
and Morality in Cyberspace: Regulating the gender-based harms of pornography online’ (2007) 11 (Southern Cross University Law Review).
35: Online Safety Act 2023 (UK); Online Safety Act 2021 (Cth) 36: Xanthe Gregory, ‘Australians Will Verify Age, Photo ID, Facial Recognition to Watch Pornography from December’ The Guardian Australia, 13 September 2025.
37: Neil McArthur, ‘New age-gating laws aimed at making the internet safer actually threaten free speech’ The Conversation Canada (Web Page, 25 August 2025) <https://theconversation.com/new-age-gating-laws-aimed-at-making-the-internet-safer-actually-threaten-free -speech-263401>
38: Maya Allen, ‘The Reinvention of Mia Khalifa: TikTok Interview’ Dazed Digital (Web Page, 23 November 2020) <https://www.dazeddigital.com/life-culture/article/51545/1/the-reinvention-of-mia-khalifa -tiktok-interview>
39: Ash Sarkar, ‘Inside HEROINE 12: Mia Khalifa on Racism, Sexism and Exploitation’ HERO (Web Page, 16 June 2020) <https://hero-magazine.com/article/168477/mia-khalifa-on-racism-sexism-and-exploitation>
40: Ibid.
41: Michelle Evans, ‘Pornography and the Internet: Civil Rights for Women or the Emperor’s New Clothes?’ (2005) 30(1) Melbourne University Law Review 145, citing Catherine MacKinnon and Andrea Dworkin, In Harm’s Way: The Pornography Civil Rights Hearings (Westview Press, 1997).
45: Gail Dines & Ashley Judd, ‘How Violent Porn Initiates Young Boys in Violence Against Women’ Ms. Magazine (Web Page, 6 May 2025) <https://msmagazine.com/2025/05/06/male-violence-pornwomen-manosphere-incel-adolescence/
46: Clare McGlynn, Written Evidence (VAWG0038) (Durham University) to the Joint Committee on Violence against Women and Girls, Evidence 138227, 1.
47: Siobhan Marin and David Rutledge, “Degrading behaviour towards women is part of ‘mainstream’ pornography. What are the risks of this?” ABC News (Web Page, 25 May 2024) <https://www.abc.net.au/news /2024-05-25/degrading-behaviour-women-pornography-risksaustralian-teenagers/103827668>.
48: Julie Bindel, ‘What Andrea Dworkin, the feminist I knew, can teach young women’ The Guardian (UK), 30 March 2015 <https://www. theguardian.com/commentisfree/2015/mar/30/andreadworkin-the-feminist-knew-teach-young-women>.
issue’, and ‘society, culture, government, healthcare providers, educators and families’ must ‘hold Big Tech accountable’. This approach of totality has fundamentally been neglected. As Clare McGlynn argues, issuing ‘consent training’ is largely pointless where the minute the course is finished, students access porn that promotes non-consensual, violent sex. Sex education alone cannot compete with an industry that markets pain as pleasure and degradation as desire. Even ‘ethical porn’ cannot escape this logic when the repeated script is one of degradation. Without dismantling the ideology, lessons in equality will be drowned out by the roar of an industry profiting from women’s subordination.
Radical feminist activism threatens the foundations of the patriarchy and pornography, so it goes wilfully unheard. In 2004, the year before she died, Dworkin offered a warning to the world; ‘if we give up now, younger generations of women will be told that porn is good for them, and they will believe it’. Her prophecy has come to pass, and the consequences are everywhere.
31: John Locke, Two Treatises of Government (Peter Laslett ed, Cambridge University Press, 1988).
32: John Stuart Mill, On Liberty (Oxford University Press, 1998)
33: Ibid.
Michelle Evans, ‘Censorship
The Australian law has sparked reform and conversation with its attempts to achieve gender equality within frame(Cth) (‘PPL Act’) and surrogacy laws. While these legislative instruments have been a step in the right direction in many respects, the voices of women and especially mothers are not adequately addressed despite being the most critically affected demographic by these laws. Equality for mothers is currently being sought through anti-discriminatory and neutral stances. Yet, with the prevalence of gender inequality in Australia, sex-specific support that recognises the needs of mothers is necessary to close the gap. Considering the innovations and drawbacks of international schemes compared to domestic regulations is essential guidance in constructing better frameworks that elevate their voices.
Current gender-neutral provisions under the PPL Act are built upon the sentiment of avoiding outdated gender roles within parenthood. Though the government is committed to extending the period to 26 weeks from 2026, the scheme currently allows for any parent to claim a consolidated payment of up to 24 weeks under the Act. Additionally, under the Fair Work Act 2009, a parent is entitled to 12 months of unpaid parental leave. While the scheme has made significant amendments to improve gender equality and encourage fairer distribution of caregiving responsibilities, gender-neutral rules are not necessarily a sound means of achieving substantive equality in a society where women have not yet achieved full parity with men.
Japan offers one of the world’s longest paid paternity leave, separate to leave granted to mothers, yet only 7.48% of eligible men took it as of 2019. This deterrence stems from cultural norms and the fear of facing the same career penalties that have historically limited mothers from re-entering the workforce full-time. The term ‘maternity harassment’ has been coined by Japanese lawmakers to define the adverse treatment faced by women in the workplace based on pregnancy and childbirth. There is a gender gap of 14% in the Australian workforce, with 32% of mothers who were discriminated against at some point resigning from their positions. Arguably, while not to the same extent as Japan, there are similar stigmas surrounding the contribution of pregnant women and mothers to the Australian workforce that deter parents from equally sharing caregiving responsibilities.
In the year 2000, Iceland became one of the first countries to implement a nine-month, sex-specific, parental leave scheme, allocating three non-transferable months to each parent. This led to an immediate increase in use of paternity leave, and the new legal framework helped to progress structural attitudes by reframing the involvement of fathers as equally necessary and natural to the role of mothers. The gender-neutral PPL Act comparatively highlights the disproportion between men and women by continuing to be set at the minimum wage, highlighting our substantial wage gap. Parents earning above the minimum wage are less likely to utilise the scheme because of the amount of pay they sacrifice in doing so. The PPL Act’s explanatory memorandum acknowledges that the higher-earning partner, likely the father, will return to work earlier to preserve the family’s financial stability.
As such, while neutrality attempts to achieve equality, the social and physical differences between men and women mean that sex-specific accommodations during pregnancy and maternity leave will better serve women’s equality. This will consequently help in facilitating women’s long-term connection to the workplace while also protecting the health of both new mothers and babies.
The issue of surrogacy laws is complex and controversial, hence this discussion will be limited to examining their implications for the recognition of mothers. Currently, the Surrogacy Act 2010 only permits altruistic surrogacy to safeguard against potential unethical practices and a potentially disproportionate relationship between the ‘intending parent’ and the surrogate. However, surrogacy without compensation fails to acknowledge the significant physical and emotional strain surrogates undertake during pregnancy,.This includes but is not limited to the loss of both economic and non-economic opportunities, the burden of treatment, and the inability to undertake a wide range of activities inhibited by pregnancy. It additionally fails to account for the higher risk of severe maternal complications compared to those who become pregnant naturally.
In Australia, private IVF clinics act as intermediaries that take an unfair proportion of the overall cost paid by intended parents, whilst simultaneously constraining the surrogate’s capacity to negotiate fair remuneration for their work. The UK, which offers a similar surrogacy model to Australia, commonly assists surrogacy through non-for-profit or community organisations, which offers a centralised experience at the expense of professionalism due to lack of funding and resources. However, the U.S. allows for commercial surrogacy and a common set of standards have developed among clinics to safeguard against unethical practices, including ‘psychological screenings, counseling, and support services’ for surrogates.
However, recent accounts of commercial surrogacy in the U.S., such as that of Cindy Bi, reveals that these standards and regulations have been insufficient in protecting the interests of surrogates. As surrogacy is still legal and continually gaining popularity in Australia, recognising that exploitative surrogacies are prevalent and creating a legally enforceable set of common standards that recognises and fairly compensates the labour of surrogates could hence be a means of challenging the misconception that motherhood is a private responsibility.
Ultimately, recognising the voices of mothers is a difficult and sensitive task that requires greater recognition of their labour and their disadvantages within Australian society at present. The PPL Act’s gender-neutral design, while shaped around egalitarian principles, failed to adequately address structural inequalities that entrench traditional gender roles. Provisions tailored to both caregivers as separate individuals can better assist in the continued workplace participation of mothers while also reshaping ideals regarding parenthood. Similarly, altruistic surrogacy laws conceal the significant labour of pregnancy and motherhood, undervaluing women’s contributions. While a system of fair compensation could better acknowledge that motherhood is not a private duty, ethical controversies surrounding surrogacy require careful consideration of how to reform legally enforceable standards. Legislation shaped around and directed to mothers underscores a need for legal approaches that better confront the gendered realities of caregiving.
Mark Crawford, ‘Abe’s Womenomics Policy, 2013-2020: Tokenism, Gradualism, Or Failed Strategy?’ (2021) 19(4) Asia-Pacific Journal 1, 8.
Ibid.
Yuko Kachi et al, ‘Association between maternity harassment and depression during pregnancy amid the COVID‐19 state of emergency’ (2021) 63(1) Journal of occupational health 2, 8.
‘Chapter 1: The case for addressing workplace discrimination related to pregnancy, parental leave and on return to work after parental leave’, Australian Human Rights Commission, (Webpage, 1 August 2014) <https://humanrights.gov.au/our-work/chapter-1-case-addressing-workplace-discrimination-related-pregnancy-parental-leave-and>.
Amanda Darshini Selvarajah, ‘The Regulation of Paid Parental Leave in Australia: Delivering Gendered Patterns of Care’ (2024) 52(4) Federal Law Review 412, 417.
Mark Crawford, ‘Abe’s Womenomics Policy, 2013-2020: Tokenism, Gradualism, Or Failed Strategy?’ (2021) 19(4) Asia-Pacific Journal 1, 8.
Ibid.
Yuko Kachi et al, ‘Association between maternity harassment and depression during pregnancy amid the COVID‐19 state of emergency’ (2021) 63(1) Journal of occupational health 2, 8.
‘Chapter 1: The case for addressing workplace discrimination related to pregnancy, parental leave and on return to work after parental leave’, Australian Human Rights Commission, (Webpage, 1 August 2014) <https://humanrights.gov.au/our-work/chapter-1-case-addressing-workplace-discrimination-related-pregnancy-parental-leave-and>.
Amanda Darshini Selvarajah, ‘The Regulation of Paid Parental Leave in Australia: Delivering Gendered Patterns of Care’ (2024) 52(4) Federal Law Review 412, 417.
The importance of the legal system in delivering just and safe outcomes is critical to victims and survivors of domestic and family violence. The treatment of such vulnerable people in the legal system and their ability to access justice is inextricably linked, as the States’ failure to properly identify and respond to violence against women in the legal system implicitly enables the power of the preparator and allows for such violence to be vindicated.
Men are victims of domestic and family violence (DFV) too. However, the impact and consequences of such violence is not consistent between men and women. Women are nearly 3 times more likely than men to experience violence from an intimate partner and almost 4 times more likely than men to be hospitalised after being assaulted by their spouse or partner.
But it is this acknowledgement of the disproportional impact of DFV on women that will allow for a better understanding of the motivations of perpetrators, forming the cornerstone for effective resourcing of support in legal services.
INTIMIDATION IN DISGUISE
In a 2019 report by the NSW Law and Justice Foundation, Quantifying the legal and broader life impact of DFV, it was noted that victims/survivors
had struggled in navigating the family court system without adequate representation, applying to NSW Victims Services for Victims Compensation and accessing help with consumer and credit debt. Findings such as these are crucial in legitimising the reality of victims and survivors of DFV, who require accessible, streamlined services that address these impacts. This is where we need to see the intersection of the law, a desire for justice and humanity’s service to protect the vulnerable.
However, these legal problems experienced by survivors exist in part because of perpetrators using the legal system against them. Abuse of litigation and the system are part of the broader narrative of perpetrators exerting power and control over those who are vulnerable. This commonly forms part of what is known as ‘coercive control’. In response, the NSW Parliament made coercive and controlling behaviors in intimate partner relationships a criminal offence. This commenced as of the 1st of July 2024. The criminalization of coercive control is empowering for victim-survivors, especially for those seizing opportunities to go through the criminal legal system. It also serves an educative function in raising awareness about the realities of DFV being more than just physical violence. However, the idea of the legislation's successful effects depending on women’s access to police, the retrieval of adequate 1
evidence and the legal frameworks of the inherently patriarchal court system is a presumption that not all are confident in. It is a lot to expect from one piece of legislative law reform.
Hence, although the new offence is now in force, questions remain about its functionality and whether it will maintain the attention on victim’s safety while simultaneously focusing on offender accountability in the context of victim-blaming. A key concern of such criminalisation of coercive control is whether it will be used by perpetrators to commit legal systems abuse and have the victim-surivor misidentified.
It is imperative that our legal system and those who operate within it are engaging in response mechanisms that are informed with a heightened awareness and understanding of the dynamics of DFV and the perpetrator tactics of manipulating their image. It is the lack of accountability of perpetrators’ intimidation tactics under the law that implicitly enables abusers to go unscathed as their behaviour becomes increasingly normalised. Just one example of such manipulation is seen in perpetrators misinformed claim proceedings and interlocutory proceedings in Violence Restraining Order (VRO) applications which protect victims-survivors from further violence and those
law and litigation for their benefit, masking their true motives while ostensibly pursuing their legitimate legal rights.
But how many more women are we to watch be hurt by the system that they are supposed to trust before we can improve their access to justice?
RE-EDUCATE AND REFORM
To re-form professional knowledge of DFV and its impacts on women in accessing justice, we can turn to other countries’ commitment to combatting such issues. Like other nations such as the United Kingdom, which aren’t a part of the EU, Australia should be encouraged to ratify and implement notions of the Istanbul Convention. This international treaty sets a high standard for protecting those affected by domestic violence and if Australia was to further strengthen their stance against the rise in domestic violence, they could take this step. By implementing the Istanbul Convention in practice we could see changes beyond the legal system where the expansion of support services available to women victims could offer specialised help to those in need. Such implementation could be key in creating momentum in the nation's awareness of such issues and guide governments to further build
at implementing those initiatives of Europe's Group of Experts on Action against Violence Against Women and Domestic Violence (GREVIO). Our own legal system should turn to GRIEVO’s appraisal of, for example, Spain's steady commitment in combating violence against women with their implementation of mandatory training programs for judges presiding over DFV cases involving custody and visitation rights. Initiatives such as these in the legal field would help the judiciary and legislature become more aware of patterns alluding to the manipulative tactics used by perpetrators amidst the sensitive nature of cases involving DFV.
LEGAL AID?
Access to legal representation in family law matters has been a well-recognised gap in the service system response to domestic and family violence in Australia. For women who are victims and survivors of domestic and family violence (DFV), accessing justice continues to be overwhelmingly urgent. Underfunding of legal aid and ongoing gender bias in legal aid funding leads women suffering from DFV in high need for responsive legal representation.
In response to a previous ALRC’s Equity before the Law Report, the Attorney-General’s Department commissioned its own investigation into legal aid funding and recognised that the unequal distribution of legal aid was a form of indirect discrimination against women.
In the almost 30 years of identifying this inherent gender bias, there has been little meaningful change concerning the inequity that is breaching women’s human rights. The National Legal Aid statistics show that in 2020/2021 women still only received 32% of the approved grants and men 65.7%. This inequality infringes upon women’s use of the civil justice system as a primary means of protecting themselves and/or their children from DFV.
Gender bias in legal aid funding forces many vulnerable women into negotiating for themselves where they are at high risk of unsafe arrangements. The potential for those who are vulnerable to agree to alternate dispute resolutions without professional support and allow perpetrators to go unscathed.
In legal aid, the scales need to be rebalanced to help prioritise female victims and survivors access to the protection and justice they rightfully deserve. However, it must not be forgotten that men can also be victims of domestic violence too. Men are often reluctant to report abuse because many feel embarrassment or fear they won’t be believed as a stigma around domestic violence regarding males has led to a belief that authorities minimise men’s experience of abuse because
they’re male. It is imperative to recognise that victims -survivors of domestic violence can be from all walks of life, regardless of gender.
A SOCIALLY ENTRENCHED PROBLEM
But how much institutional reform can improve victims/survivors access to justice when a deeper cultural problem is at play here?
Domestic abuse against women is rooted in sexist ideology, male domination and women’s unequal status in society. These factors set the underlying context for violence against women and have enabled men’s coercive behaviour to become an entitlement. Patriarchal abuse is perceived as part of society’s culture as a clear narrative persistswomen are too emotionally over sensitive, people of colour experience more barriers to have their voices heard and men are not to be seen as weak.
As a society, we need to take the initiative to better understand gendered violence as a form of violence. But in equal importance, we need to better recognise gendered violence as just one of the many problems concerning society’s hegemonic, harmful gender norms and attitudes. While governments and mass media have greater control over institutional change compared to cultural attitudes, it is still imperative to recognise that an amelioration of Australia’s DV crisis will only occur once both the legal system and society’s perspectives are reformed together. Education about gender inequality and violence must begin with the youth in order to address the problem of misogyny which undeniably plagues the toxic stigma around domestic and family violence, as patriarchy serves to implicitly harm both women and men.
REFERENCES
‘Family, Domestic and Sexual Violence summary’, Australian Institute of Health and Welfare (Web page, 2025) <https://www.aihw.gov. au/family-domestic-and-sexual -violence/resources/fdsv -summary>.
Angela Lynch, ‘The Justice Gap for Women: The Impact on Victims of Partner Violence’ [2022] 170 (May/ June) AustLII 20. Ibid 24.
These factors set the underlying context for violence against women and have enabled men’s coercive behaviour to become an entitlement.
Patriarchal abuse is perceived as part of society’s culture as a clear narrative persistswomen are too emotionally over sensitive, people of colour experience more barriers to have their voices heard and men are not to be seen as weak.
Hate Speech, Free Speech and Online Jurisprudence
Jurisprudence
Previously, I have written and thought much about how we might realise justice online – how we might bring the perpetrators of hate speech and disinformation to their knees, or how fines and other punishments for corporate actors will ever be ‘proportionate’ or effective deterrents to enabling behaviour. I have spent an unusual number of hours pondering a design that might impose appropriate liability on social media network providers, the need for which I have fully realised, knowing the harms that originate online and the ease with which they accelerate into real-world violence. Yet, these worries seem to have been formed under an overly optimistic assumption that the notions of justice developed in a physical world can be aptly translated into a digital landscape, thus prompting a consideration of what, then, justice can realistically look like in online environments.
Seventy-six years ago, Lon L. Fuller developed the fictional Case of the Speluncean Explorers, in which four cave divers are sentenced to death for cannibalising their peer after casting lots to decide which of them will be sacrificed to save them from starvation. Fuller’s article goes on to span the judgments of five judges, each reflecting different common law philosophies applied to the material facts, where, in addition to the death of one cave explorer, ten men died in the rescue effort. Paralleling the new environment unlocked upon entering into the twinkling cave of online spaces, Foster J reasoned that the applicability of positive law relies on the possibility of humanity’s coexistence in civil society within certain territorial borders. Accordingly, Foster J asserts that this pervasively ordinary factor of our lives is disrupted by the men’s apparent removal from Fuller’s Commonwealth laws, ‘morally … as well as geographically … separated from our courts … by a solid curtain of rock’ impenetrable by the assumption of civil society, later disputing this ground and arguing for an ‘intelligent fidelity’ to the laws of the statute mandating the death penalty for the survivors. A similar question arises when we open our apps and morph into our online personae – should the same laws and expectations of justice that govern our ordinary, physical lives translate into the digital sphere? As an aspiration, perhaps; a better question to ask may be whether any or which conceptions of justice we hold dear in physical society can be applied to the online world.
Certainly, much recent legislation targeted at regulating online spaces has focused on creating accountability and punishment measures for large corporate bodies, such as our Online Safety Act 2021 (Cth) and the Online Safety Amendment (Social Media Minimum Age) Act 2024 (‘the Australian Acts’) commencing 10 December 2025. Adopting similar measures to international legislation such as Germany’s NetzDG and the UK’s Online Safety Act 2023, the Australian Acts cap fines at a civil penalty of $49.5 million AUD for non-compliance issues, with the UK’s Act instead adopting a proportionally-determined fine of 10% of the offending company’s global revenue in addition to a daily penalty rate for continuous failure to comply. Indeed, much of the body of legislation aiming to regulate the myriad negative consequences arising from online spaces, such as hate speech, declining user mental health and the propagation of extremism, seemingly operating under the unconscious assumption that notions of punishment and deterrence attributable to the physical world are translatable to the online world. Yet, much meaning and effectiveness is inevitably lost in this translation between ordinary society and the redeveloped social contracts of online networks, challenging pre-existing ideals of social obligation, rights and liberties, particularly in regard to our regular responsibilities to others shifting online due to the new forms of globalised communication afforded by digital media networks. As digital social norms emerge to govern users’ behaviour, the distinctive codes of conduct defining online spaces prompt us to ask whether we should form the same expectations of justice that we do of our ordinary, tactile world.
In order to provide a sense of control to users, models of justice in our physical world emerge in digital spaces through reporting and sanction systems, with users’ ability to report posts and sanction offending users mirroring traditional forms of retributive justice. The effectiveness of these measures is undoubtedly questionable, as reporting systems are challenged by the scale of violent and hateful content reported through inaccessible user interfaces intended to give users the sensation of perceived control whilst
accountability mechanisms struggle to deplatform hate speech and misinformation. Outsourcing the intervention and monitoring of inappropriate online behaviour to government or other specialised corporate bodies tasked with reviewing user reports may be one way to increase the timely administration of justice online, although this poses major free speech concerns as constrictive surveillance systems encourage users’ migration to even more unregulated sites, including extremist-operated dark web platforms. Additionally, the question arises of who is accountable for inappropriate online behaviour due to the multifarious individual, corporate and algorithmic actors through which poor online conduct rapidly spreads, especially that which escalates into real-world harms. Yet, pessimistically accepting the inadequacies of reporting systems and forfeiting any expectation of the administration of justice online may risk the normalisation of hateful conduct and misinformation as part of internet culture, the effects of which may feel negligible on a daily basis, but have resulted in substantial declines in user wellbeing over time.
All is not lost, though, as new technologies emerge that may aid in the facilitation of justice online, increasing user empowerment whilst administering effective reporting systems that can handle graphic and violent content instead of delegating full responsibility to human workers. The potential of Artificial Intelligence software to detect and deplatform inappropriate conduct online is promising, enabling a higher number of reports to be received and dealt with whilst storing the ‘digital fingerprints’ of illegal and extremist content, although the definition of such is subject to change and debate across jurisdictions. Yet, the relative infancy of this technology and the unique privacy challenges raised by AI moderation raise a need to temper our expectations toward the effectiveness of the administration of justice online, not only to reduce the emotional burnout of witnessing hate speech and misinformation, but to allow room for an individualised system that allows users to agree to specific accountabilities without opposing privacy. So, let me ask you this: what aspects of justice would you sacrifice to retain the benefits of online
Lon L. Fuller, ‘The Case of the Speluncean Explorers’ (1949) 62 Harvard Law Review 616, 616–645.
Ibid 631.
Ibid 620–621.
Ibid 621.
Ibid 623–626.
Department of Parliamentary Services, Parliament of Australia, Online Safety Amendment (Social Media Minimum Age) Bill 2024 (Digest No 39, 2024–2525, 25 November 2024) 12.
Online Safety Act 2023 (UK) s 143 para 4(1).
Ibid s 137 para (1)(b).
Ozge Ozduzen, Nelli Ferenczi and Isabel Holmes, ‘‘Let us teach our children’: Online racism and everyday far-right ideologies on TikTok’ (2020) 38(5) Visual Studies 834, 834–850.
Quynh Lien Le, Jing Tiang and Navneet Natt, ‘The Social Contract Model in the Digital Era: Revisiting Rousseau and Locke’ (2023) 2(3) Interdisciplinary Studies in Society, Law, and Politics 15, 18–29.
Joni Salminen, Nicolas Gach and Valtteri Kaartemo, ‘Platform as a Social Contract: An Analytical Framework for Studying Social Dynamics in Online Platforms’ in Anssi Smedlund, Arto Lindblom and Lasse Mitronen (eds), Collaborative Value Co-creation in the Platform Economy (Springer, 2018) 41, 48–54.
Jim Macnamara, ‘Beyond voice: audience-making and the work and architecture of listening as new media literacies’ (2012) 27(1) Continuum Journal of Media & Cultural Studies 160, 170.
Maxi Heitmayer and Robin Schimmelpfennig, ‘Netiquette as Digital Social Norms’ (2024) 40(13) International Journal of Human -Computer Interaction 3334, 3336.
Rob Cover et al., ‘Reporting online abuse to platforms: Factors, interfaces and the potential for care’ (2025) 0(0) Convergence: The International Journal of Research into New Media Technologies 1, 9–14.
Hong Zhou et al., ‘Effective reporting system to encourage users’ reporting behavior in social media platforms: an empirical study based on structural empowerment theory’ (2024) 43(14) Behaviour & Information Technology 3490, 3492.
Arthur Bradley and Deeba Shadnia, ‘Examining Online Migration to Terrorist and Violent Extremist-Owned Domains’ (Research Paper, George Washington University Program on Extremism, July 2022) 4–22.
Debbie Ging, ‘Alphas, Betas, and Incels: Theorizing the Masculinities of the Manosphere’ (2017) 22(4) Men and Masculinities 638, 645.
Michał Bilewicz and Wiktor Soral, ‘Hate Speech Epidemic. The Dynamic Effects of Derogatory Language on Intergroup Relations and Political Radicalization’ (2020) 41 Advances in Political Psychology 3, 8–11.
Atallah Alenezi et al., ‘Association between Facebook Addiction, Depression, and Emotional Regulation among Women’ (2023) 11(12) Healthcare 1701; Chloe N. Jones et al., ‘Investigating the links between objective social media use, attentional control, and psychological distress’ (2024) 361 Social Science & Medicine 1, 1–9.
Vaishali U. Gongane, Mousami V. Munot and Alwin D. Anuse, ‘Detection and moderation of detrimental content on social media platforms: current status and future directions’ (2022) 12(1) Social Network Analysis and Mining 1, 34–37. Ibid 34.
In a world of ethnic and religious prejudice, xenophobic discrimination, and freedom fighting, how do we differentiate between the crimes and liberties of individuals? Who constitutes whether a person is acting in hatred of another? Is it possible for words to hold moral superiority over other words? By understanding what legally constitutes hate speech and free speech, we can then ensure that these concepts are utilised accurately in the legal system.
What is meant by this?
Before any particular discussion is set out, it is important to delve into the true meaning of these terms. Firstly, words are defined by “a single distinct conceptual unit of language, comprising inflected and variant forms.” Furthermore, freedom of speech was established in numerous legal documents from the US Bill of Rights to the United Nations International Covenant on Civil and Political Rights (1966), where in Article 19.2 it states that ‘everyone shall have the right to freedom of expression… (including) freedom to impart information and ideas of all kinds…’ Ulterior to this, hate speech is ‘abusive or threatening speech or writing that expresses prejudice on the basis of ethnicity, religion, sexual orientation, or similar grounds.’
What can we retain from this?
Inherently in these definitions, it is comprehensible that hate speech constitutes itself as amongst what is considered to be freedom of expression. In spite of this, the United Nations ICCPR universal instrument has made clear in Article 19.3 (a)(b) that this right is not required to be enforced through law when it inhibits against the rights and reputation of others, or impairs protections of national security, public order, public health or morals. Thus, in international legal terms, hate speech is a distortion of free speech that incites violence and prejudice. Nation states have a responsibility to maintain rights of freedom of expression whilst protecting the public from dialogue that impedes on other rights that are equally attributed to the people.
What’s the issue, then?
By understanding how freedom of speech is applied as a legal right, it can be expressed that words are not always ingenuous, and there are ethical restrictions in the global legal system to ensure that discussion is exhibited in a manner that is safe in maintaining the rights of all people in society. In practice, however, this remains to be unclear in the eyes of the general population. Some fears exist that the concept of hate speech is being manipulated to enforce limitations to the inherent freedom of expression that is provided to the people by all spheres of the legal system, from the executive policing public freedoms to parliamentary legislation that does not ensure the maintenance of free speech if wielded incorrectly. Dialogue that— ironically is protected by the freedom of speech— arose amongst the political tensions in recent years that have been brought forth by a 2025 amendments bill to the Criminal Code Act 1995 (Cth).
This amendment bill, the Criminal Code Amendment (Hate Crimes) Act 2025, has made it so that recklessness, not intention, is the new standard of committing a criminal offence regarding any form of possibly “threatening” behaviour. On the surface, this may seem completely reasonable, however, the implications have been observed by public discourse. Many seem to presume that this law can be anticipated to be harmful to our freedoms, particularly that of expression, as the term recklessness under this legislation lowers the bar for a criminal offence. This has been deemed as unnecessarily dangerous, where intent was previously a perfectly reasonable and capable standard to uphold the rights of safety afforded to the people.
Sky News in ‘New hate crime laws will ‘further limit speech’ in Australia’ further questions the laws’ necessity. The Nationals senate leader, Bridget Mckenzie, answers that the standard of intent diminishing to recklessness was vital in the face of antisemetic attacks early this year. Furthermore, she claimed that when implementing the new laws,
the term ‘violence’ was intended to explicitly refer to “physical violence”. She stated this when questioned on the dangers of limiting free speech with the legislation, and claimed that the meaning of violence to be ‘physical’ makes it so that the laws do not impede on free speech. Offences by a difference in opinion do not count. Despite this, the amendments have been perceived to possibly promote and facilitate people to be convicted of advocating force or violence unintentionally, as intention is no longer a requirement in pursuing charges.
How might this play out in real life? Part 1.
It is unabashedly human to implement personal biases into our understanding of situations. By changing intent to recklessness to instigate a criminal offence for these laws, it allows for individuals in executive or judicial positions to implement their inherent perceptions of communities who do not align with their own views. This influences them as they determine whether the accused were ‘advocating’ for force or violence. The ABC News ‘Video analysis finds no evidence of 'gas the Jews' being chanted at Sydney Opera House protest, despite witness statements’ article showcases this risk of assumption based on preceding bias. To explain, the article states that NSW Police entirely failed to find any forensic evidence corroborating the claim that the pro-Palestinian protests at the Opera House had included hate speech such as “gas the Jews”. Instead, the statements were “where’s the Jews”, which do not advocate for violence of any kind. Despite this, NSW Premier Chris Minns described the protests as "abhorrent", specifically accusing the protestors of advocating for violence. Under these new laws, if individuals with a similar perception as Mr Minns were responsible for
convicting these protestors, they would be sentenced with a criminal offence by simply protesting against one-sided solidarity amidst a highly political landscape, an action which seemed unjust to the pro-Palestinian community.
How might this play out in real life? Part 2.
Furthermore, amidst the Nationalist Socialist Network rallies, there were explicit incitements of violence and the carrying out of violent behaviour by attacking an Indigenous encampment in Melbourne. Despite this, the Guardian reported that “Peter Wertheim, the Executive Council of Australian Jewry’s co-chief executive, said he “did not believe the National Socialist Network met the threshold for a listed terrorist organisation because they had not engaged in terrorist activity.” By removing the standards of intention, the amendments dishonor the rule of law ensuring that all civilians are treated equally under the law. By having laws which deem perception to be seen as fact, this equality is shattered.
So, what now?
It is unreasonable to presume that every individual who holds a deviant opinion, participates in unregulated discourse without appropriate communication skills, or expresses factional claims should be held criminally responsible for others causing harm. If the Australian government takes action in attempting to minimise hate crime, they must ensure that the laws do not allow legal bodies to implement personal bias. Personal views on highly controversial topics risk an unequal reasoning being applied in convictions and should be prevented. 4
Complex Consent in Tech. by Lauren Eyers
REFERENCES:
‘Consent to the handling of personal information’, Officer of the Australian Information Commissioner (Web Page, n.d.) <https://www.oaic.gov.au/ privacy/your-privacy-rights/your-personal-information/consent-to-the-handling-of-personal-information>.
Privacy Act 1988 (Cth) s 6, sch 1.
Ibid sch 1.
‘The role of consent in collecting and using personal information in Australia and Europe’, Spruson & Ferguson (Web Page, 31 May 2023) <https://www.spruson.com/the-role-of-consent-in-collecting-and-using-personal-information-in-australia-and-europe/>. Lee v Superior Wood Pty Ltd (T/A Superior Wood) [2019] FWCFB 95. Ibid.
Cathy Lyndon and Mikayla Durham, ‘The impact of Lee v Superior Wood’, MinterEllison (Web Page, 17 may 2019) <https://www.minterellison.com/articles/the-impact-of-lee-v-superior-wood>.
Dawn Lo, ‘Should you know (or care) how your data is being used before you consent?’, UNSW Newsroom (Web Page, 27 Aug 2020) <https://www.unsw.edu.au/newsroom/news/2020/08/should-you-know--or-care--how-your-data-is-being-used-before-you>. Ibid.
Shara Monteleone, ‘Addressing the 'Failure' of Informed Consent in Online Data Protection: Learning the Lessons from Behaviour-Aware Regulation’ (2015) 43(1) Syracuse Journal of International Law and Commerce 70, 75.
Ibid.
Ibid. Ibid.
Sacha Molitorisz, James Meese and Jennifer Hagedorn, ‘From Shadow Profiles to Contact Tracing: Qualitative Research into Consent and Privacy’ (2021) 3(2) Law, Technology and Humans 46, 47.
Complex consent in tech. In an age of digital everything, data is a hot commodity, ready to be bought by companies like Google or ChatGPT to train AI and track user behaviour. From AI models to web analytics, data has become one of the fundamental requirements for the continued existence of the online world. And, typically, that data has to come from us, the users of this online world. One of the fundamental ideas behind data usage is consent to the use of the data. For companies to use our data, our consent is required by law. Consent in the online world not only includes the knowledge that one’s patterns are being harvested and collected, but also bought and sold by multifarious actors driven by profit and surveillance incentives. Complex consent in tech. In an age of digital everything, data is a hot commodity, ready to be bought by companies like Google or ChatGPT to train AI and track user behaviour. From AI models to web analytics, data has become one of the fundamental requirements for the continued existence of the online world. And, typically, that data has to come from us, the users of this online world. One of the fundamental ideas behind data usage is consent to the use of the data. For companies to use our data, our consent is required by law. Consent in the online world not only includes the knowledge that one’s patterns are being harvested and collected, but also bought and sold by multifarious actors driven by profit and surveillance incentives.Complex consent in tech. In an age of digital everything, data is a hot commodity, ready to be bought by companies like Google or ChatGPT to train AI and track user behaviour. From AI models to web analytics, data has become one of the fundamental requirements for the continued existence of the online world. And, typically, that data has to come from us, the users of this online world. One of the fundamental ideas behind data usage is consent to the use of the data. For companies to use our data, our consent is required by law. Consent in the online world not only includes the knowledge that one’s patterns are being harvested and collected, but also bought and sold by multifari ous actors driven by profit and surveillance incentives. Com plex consent in tech. In an age of digital everything, data is a hot commodity, ready to be bought by companies like Google or ChatGPT to train AI and track user behaviour. From AI models to web analytics, data has become one of the fundamental requirements for the continued existence of
In an age of digital everything, data is a hot commodity, ready to be bought by companies like Google or ChatGPT to train AI and track user behaviour. From AI models to web analytics, data has become one of the fundamental requirements for the continued existence of the online world. And, typically, that data has to come from us, the users of this online world. One of the fundamental ideas behind data usage is consent to the use of the data. For companies to use our data, our consent is required by law. Consent in the online world not only includes the knowledge that one’s patterns are being harvested and collected, but also bought and sold by multifarious actors driven by profit and surveillance incentives.
Currently, the Australian Privacy Act 1988 (Cth) (‘the Act’) and the Australian Privacy Principles (APPs) govern the use of data, including personal privacy and the processing of personal information by entities defined generally as organisations that have earnt more than $3 million, and Australian government agencies. The Act defines consent as express or implied consent. In the context of implied consent, a company needs to reasonably believe that they have your consent to use your data. The two major APPs involving consent are APP 6 and APP 3. APP 3 establishes that an agency may not solicit, that is, request personal information of another entity, or collect, that is if the entity itself gathers the personal information, excluding sensitive information, personal information. Similarly, APP 6 prevents the use and/or disclosure of personal information for any secondary purpose without the individual's consent or for similar exempting reasons to APP 3.
The main concern with the Australian legal methodology to consent is the inclusion of implied consent, which allows companies to potentially circumvent consent requirements on the argument that they had implied consent, and where the evidence of such implied consent was compelling enough. Additionally, implied consent is nuanced, and leaves room for misunderstanding where express consent does not. For example, the case of Lee v Superior Wood Pty Ltd, where an appeal was raised partly on the basis of the complexity implied consent. The original ruling showed that biometric fingerprint data implies consent when a person scans their finger, however, the person's privacy can only be breached if they scan their finger, resulting in the implication of potential employer duress as consent is not likely to be ‘freely given’ if a refusal to consent may result in disciplinary action against an employee. Indeed, the Full Bench’s decision parallels how users’ failure to provide consent on online platforms forms a major barrier to accessing information, entertainment and connection, as almost all websites now require consent to cookies, without which, makes full functionality inaccessible.
Many people will simply allow access to cookies, and consent to their usage simply to access this information or these tools. However, people don’t necessarily know what they are agreeing to, especially in regard to privacy policies. When was the last time you actually read a privacy policy all the way through, and understood it all? On one hand, it has been shown that people are concerned about their privacy, however, most of these people will not read privacy statements, continually consenting to the use of their own data. This creates what is known as the “privacy paradox”, whereby Internet users remain concerned about their own privacy while willingly and easily allowing access to it. The reality is that for most people, even if they were to read a privacy policy, the wording is often too hard or confusing for them to understand. The result is that, for people that do read the privacy policies, their understanding of the way their data is collected, used and disclosed, as well as the risks associated with this, does not achieve the depth that could be classed as required for informed consent.
Additionally, the reality of an ever-changing technological landscape means that these challenges associated with capturing informed consent will only be amplified, as privacy laws lag behind transformative evolution of data harvesting tools. For example, studies have shown that ‘shadow profiles’ can be created of people, whereby online social networks have such strongly embedded information that, potentially, profiles can be made of an individual based on their social ties without that individual ever having to use that same social platform. Shadow profiles can prove beneficial, largely for fueling tools that rely on data to improve and learn, such as crowd-favourite ChatGPT. This creates a lack of control over your own digital identity and information, chipping away at one's own privacy. Additionally, users are likely to be unaware what information is being added to their profiles, fundamentally undermining the key role of consent on digital platforms. Whilst it has not been proven that any platforms create and manage any shadow profiles, the practice is possible, and with the need for data to build machine learning technology and AI tools, who is to say that shadow profiles are far from being the norm? There may be a rise in the creation and usage of shadow profiles given that technology thrives on data, with tools like AI models needing data to improve. Shadow profiles provide an easy form of data that companies like Facebook and Instagram can sell, commodifying data that you don’t even know they have. In essence, social platforms can create profiles of people with uncanny accuracy without their knowledge, and more importantly, without their consent. Ultimately, it is up to the APPs and Privacy Act to control how companies deal with data for non-users, and to regulate how individuals have control over what online information about them exists.
The reality of the constantly changing technological age means that consent needs to be reconsidered through laws that not only consider how to accommodate present challenges to Australians’ privacy rights, but how the process of law reform itself may need to adapt to better accommodate transformative changes to social networking as they come. The legal lag created by our present laws and systems of reform leaves much to be desired, amongst an already concerning legal landscape where laws aimed at monitoring and punishing malicious actors online are instead imposing non-deterrent limitations on well-meaning consumers, an aspect of recent online safety legislation that privacy reforms must avoid.
