Weed in the ACT

More potheads in the nation's capital or just more confused policing?

The Drugs of Dependence (Personal Cannabis Use) Amendment Bill 2018 (ACT) - likely to be passed in an amended form - seeks to amend the Drugs of Dependence Act 1989 (ACT) in relation to personal possession of cannabis, with consequential amendments to the ACT Criminal Code 2002.

The 2018 Explanatory Statement indicates

The Bill will amend criminal laws to allow for the personal use and carry of cannabis up to a limit of 50g. The Bill will also allow individuals to cultivate up to four cannabis plants (excluding artificial cultivation). This change will bring cannabis laws more in line with modern community standards and reflect global trends. The Bill will reduce the burden on our criminal justice system and bring us a step closer to a cannabis market. 

The Bill will retain penalties for possession above 50g at current levels, cultivation of more than four plants will remain illegal, artificial cultivation will remain illegal, sale will remain illegal and sale and supply to minors will especially remain illegal. 

Background 

In 1971 Australia signed the Single Convention on Narcotic Drugs of 1961 which extended importation controls over drugs like cannabis. Since then Australia has been a party to further international treaties on drugs and Section 300 of the Criminal Code (Cth) 1995 creates offences relating to drug trafficking and gives effect to the UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. States however retain power of laws regarding possession. 

In 1992, the ACT decriminalized cannabis possession under 25g through the Simple Cannabis Offence Notice (SCON) scheme. This scheme, according to the 2013 ACT Health Department report Evaluation of the Australian Capital Territory Drug Diversion Programs, aimed to

1. To minimise harms associated with unnecessary involvement in the criminal justice system (CJS) 

2. To strength partnerships (between law enforcement, courts, health and other stakeholders) 

3. To educate police and courts regarding what are the appropriate responses to Alcohol and Other Drugs (AOD) issues 

4. To fulfil the community expectation of community protection and the punishment of offenders 

5. To educate young people and families 

6. To deter encounters with the CJS 

7. To reduce AOD use 

8. To reduce cost to the CJS and reduce social cost of AOD 

9. To reduce AOD-related crime

The limit was subsequently increased to 50g to reflect the fact that almost universally individuals purchased cannabis at quantities above the 25g limit and therefore were ineligible to be diverted from the CJS.

Recent international developments have seen 9 US states and the District of Colombia legalise cannabis not just for personal use but legalising the industry. Canada has also legalized the sale and possession of cannabis and is in the process of setting up their market. New Zealand has also pledged a referendum on the issue before 2020. 

Community attitudes on cannabis are shifting and unbiased research has shown it is not a particularly harmful substance. According to the Australian Institute for Health and Welfare in their report, Impact of Alcohol and Illicit Drug Use on the Burden of Disease and Injury in Australia, alcohol represents 4.6% of the total burden of diseases and injuries in Australia, tobacco 9% and cannabis only 0.1%. 

Despite causing 46 times less harm than alcohol, cannabis remains illegal. And despite the decades long campaign waged against drug use, cannabis remains the most popular drug in Australia according to the Australian Criminal Intelligence Commission in their report Organised Crime in Australia 2017. The National Drug Household Strategy Household Survey 2016 found that 35% of Australians have used cannabis and 10% have used it in the last year. But the substantial profits of cannabis go to organised crime and away from health and education. 

The Bill will ease the burden on law enforcement who spend over $1.1 billion every year on drug law enforcement in Australia according to the UNSW based Drug Policy Modelling Program in their 2013 report Government Drug Policy Expenditure in Australia 2009/10. And according to the Australian Criminal Intelligence Commission’s 2016-17 Illicit Drug Data Report over 50% of drug related arrests in Australia (154 650 total) were cannabis related and 91% of those were consumer arrests i.e. small amounts. 

Cannabis is sometimes touted as a ‘gateway drug’ and that it will encourage people to try harder substances. A comprehensive review of scientific studies on this topic by the American National Academies of Sciences, Engineering, and Medicine titled The Current Health Effects of Cannabis and Cannabinoids states that ‘Additional studies are needed to determine whether cannabis use is an independent risk factor for, or causally contributes to, the initiation or use of and dependence on other drugs of abuse later in life’. 

Interaction with Federal Law 

This Bill does not affect the prosecution or enforcement of Commonwealth and Territory laws relating to the sale or trafficking of cannabis, including laws prohibiting the possession of amounts of cannabis over 50g and the cultivation of 5 or more cannabis plants.

The Statement does not engage with the crucial question of the Commonwealth's ability to override ACT legislation (a fact, evident in relation to the Territory's badly-managed same-sex marriage Act) and willingness to do so (likely, not leasr as a useful diversion).

The report on the Bill by the Standing Committee on Health, Ageing and Community Services features the following recommendations, of which R 11 is of particular interest -

 1 The Committee recommends that, subject to the following comments and amendments, the Drugs of Dependence (Personal Cannabis Use) Amendment Bill 2018 be supported. 

2  The Committee recommends that consequential amendment [1.2] (Section 168(2) of the Criminal Code 2002), in the Drugs of Dependence (Personal Cannabis Use) Amendment Bill 2018, be amended to increase the number of plants an individual can cultivate to a maximum of four, and the number of plants a household can cultivate to a maximum of six. 

3  The Committee recommends that an amendment be included in the Drugs of Dependence (Personal Cannabis Use) Amendment Bill 2018, to allow for soil cultivation in a greenhouse and/or with artificial light. 

4   The Committee recommends that Section 171AA(2) of the Drugs of Dependence (Personal Cannabis Use) Amendment Bill be amended to define plant weight, wet weight, dry weight and any other format in which cannabis can be possessed. 

5   The Committee recommends that the Drugs of Dependence (Personal Cannabis Use) Amendment Bill 2018 should also clarify that, while growing a plant, it is counted as a plant and its weight is not relevant for the purposes of this legislation. 

6  The Committee recommends that if artificial cultivation is not allowed, the dry weight (or equivalent) allowable be expanded to 100 grams as in South Australia. 

7  The Committee recommends that Section 171AB(1) of the Drugs of Dependence (Personal Cannabis Use) Amendment Bill 2018 be amended to adopt similar smoking offences as presented in the Smoke-Free Public Places Act 2003, as well as Smoking in Cars with Children (Prohibition) Act 2011 for smoking cannabis in public places. 

8   The Committee recommends that Section 171AB(2) of the Drugs of Dependence (Personal Cannabis Use) Amendment Bill 2018 be amended to adopt similar smoking offences as presented in the Smoke-Free Public Places Act 2003, as well as Smoking in Cars with Children (Prohibition) Act 2011 for smoking cannabis near a child. 

9  The Committee recommends that the ACT Government collaborate with ACT Policing to adopt a cannabis drug driving test that determines impairment. 

10  The Committee recommends that Section 171AA of the Drugs of Dependence (Personal Cannabis Use) Amendment Bill 2018 be amended to include express authorisation for the cultivation and use of cannabis by individuals for personal use. 

11  The Committee recommends that the ACT Government intervene in any prosecution by the Commonwealth of ACT residents who cultivate or possess cannabis in accordance with the Drugs of Dependence (Personal Cannabis Use) Amendment Bill 2018 to defend the intent of the Bill. 

12  The Committee recommends that, should cannabis for personal use be legalised in the ACT, the ACT Government considers appropriate measures for overturning convictions relating to possession and cultivation of cannabis for personal use. 

13  The Committee recommends that, regardless of whether or not the Drugs of Dependence (Personal Cannabis Use) Amendment Bill 2018 is passed, the ACT Government ensures that there are sufficient health resources available to treat cannabis dependence. 

14  The Committee recommends that the ACT Government develop a public health campaign about cannabis to be delivered on an on-going basis. 

15  The Committee recommends that strong public information about the provisions of the Drugs of Dependence (Personal Cannabis Use) Amendment Bill 2018 proceed or coincide with the implementation of the Drugs of Dependence (Personal Cannabis Use) Amendment Bill 2018. 

16   The Committee recommends Section 162 of the Drugs of Dependence (Personal Cannabis Use) Amendment Bill 2018 be amended to include a provision that allows group cultivation where: • The number of people in the group is between two and 10; • The cannabis must be cultivated on the premises of one of the members; • Every plant must be ‘owned’ by an individual ACT resident and the name and address of this individual must be made available to police if requested; • No one in the group can own more than the legal limit of plants for an individual; • Cannabis product in the group is owned by the individual owner of the plant that produced it; and • Cannabis product cannot be traded or exchanged with other individuals.

The Government's response last week states

The ACT Government does not condone or encourage the recreational use of cannabis or other drugs. This is a message we will continue to share with the Canberra community both in the context of this legislation, and more broadly. 

We must acknowledge, though, that the outright prohibition model of drug policy is not working, as cannabis use is prevalent both across Australia and within the Canberra community. There is good evidence from drug law reform around the world that a harm minimisation approach delivers better outcomes both for individuals and communities. 

This is why the ACT Government has indicated we intend to take a harm minimisation approach by supporting the Drugs of Dependence (Personal Cannabis) Amendment Bill 2018 with a range of amendments to add further safeguards and protections for the community. The Government’s view is that the Bill is a logical next step of the Simple Cannabis Offence Notice (SCON) scheme rather than a revolutionary change. Its effect will be to remove penalties for the use and possession of small amounts of cannabis by individuals over 18 years, in line with the ACT’s harm minimisation objectives. The SCON scheme is intended to continue for individuals under 18 years old. 

In this context, the Government offers the following response to the Committee’s report and recommendations. This re-states and expands upon a number of important points made in our original submission to the inquiry, as well as responding to the Committee’s individual recommendations. 

ACT drug policy 

The ACT Government’s policy regarding the harms caused by alcohol, tobacco and other drugs is clearly articulated in the ACT Drug Strategy Action Plan 2018–21 (the ACT Action Plan). The Action Plan, which aligns with the National Drugs Strategy, outlines a commitment to evidence-based and practice-informed responses to drug use that minimise harm in our community. 

The Government has been clear that we do not condone nor encourage the recreational use of cannabis, which we know presents health risks. However, outright prohibition clearly does not work as an effective strategy for dealing with drug use in our community. Despite currently being illegal, 8.4 per cent of Canberrans have reported using cannabis in the previous 12 months. 

The ACT has a long history of taking progressive steps and trying new ideas to minimise the harm of drugs in our community. This includes being one of the first jurisdictions in Australia to decriminalise the personal possession of small amounts of cannabis. The Government intends to continue taking well considered steps to improve our drug laws. 

It is important to note that, even after the passage of this Bill, possessing and growing cannabis will carry a degree of risk arising from interactions between Territory and Commonwealth law. We believe the ACT is able and entitled to make our own laws on this matter. However, we would be the first jurisdiction in Australia to legislate in this way, and the interaction with existing Commonwealth law remains untested. The amendments proposed by the Government aim to reduce the risk to individual Canberrans but cannot remove this entirely. 

There is also uncertainty as to how a Commonwealth Government may react to the ACT passing this Bill. We cannot guarantee the Commonwealth Government would not intervene to prevent reforms – as has occurred in the past when the ACT has attempted nation-leading progressive reform on issues like marriage equality. 

There are a range of health implications that must be considered. It is clear that some people experience adverse mental health effects from using cannabis, and that its use can become problematic over time. These health risks already exist for anyone who uses cannabis under current legislative settings, but it will be important to continue raising community awareness of these risks in parallel with the legislative process. 

The Government believes implementation of this Bill may assist in addressing some of these health risks. For example, the stigma and risk of punishment associated with illegal drug use may mean that people do not seek medical or other types of help when they need it. Legalising the personal use of small amounts of cannabis will create opportunities to better reach people who are already using the drug and connect them with the services or supports they need. 

Proposed Government amendments 

In light of these and other issues, the Government will move a number of amendments to the Private Members Bill.

1. Personal plant limits 

Whereas the Bill proposes to allow an individual to possess four cannabis plants, the Government will move amendments to limit this to a maximum of two plants. This is consistent with the settings of the current SCON scheme and is considered a reasonable limit for personal use. 

2. Household plant limits 

The Bill does not currently include a limit on the number of plants that would be allowable in any single dwelling. This gives rise to potential situations where share houses (or properties that otherwise have multiple residents) could effectively be used as larger scale ‘grow houses’. The Government will move amendments introducing a household limit of four cannabis plants, regardless of how many individuals are resident. 

3. Restrictions on where cannabis can be grown 

The Government will move amendments to restrict where personal cannabis plants can be grown. These amendments will address two separate issues. First, cannabis plants will only be able to be legally cultivated on parts of residential property not generally accessible by the public. This would exclude cannabis being grown in areas such as verges or community gardens. This restriction is intended to minimise access to cannabis plants by people other than the legal owner or resident. This would also have the effect of preventing cannabis being legally cultivated on commercial or community property. Second, cannabis plants would only be able to be legally cultivated by a person usually residing at that property. This is intended to establish a nexus of ownership for cannabis plants. 

4. Storage 

Government amendments will require cannabis to be kept out of reach of children when not in an individual’s possession in order to restrict access by children and young people or other vulnerable individuals. The Government amendments will require a person in possession of cannabis to take reasonable steps to store the cannabis out of reach of children. Examples will be provided in the supplementary explanatory statement for the Government amendments, reflecting current approaches to storing dangerous chemicals or prescription drugs. 

5. Distinction between fresh and dried cannabis 

The Bill as drafted would legalise possession of 50 grams of cannabis, which is taken to refer to dry cannabis in line with the settings of the SCON scheme. This creates a practical issue due to freshly harvested cannabis plant material weighing more before it is dried. To reduce ambiguity in the Bill, the Government intends to move amendments that will distinguish between ‘dry’ cannabis (ie. cannabis ready to be used) and ‘wet’ cannabis (ie. harvest plant material that has not yet been dried). Dried cannabis would still be subject to a 50 gram limit as included in the Bill. The Government will move to include a separate limit of 150 grams for ‘wet’ cannabis that would apply to cannabis that has been harvested but not yet dried. This limit has been selected primarily on the basis that it would limit individuals from potentially possessing amounts of dry and wet cannabis that would approach the threshold for a trafficable quantity. 

6. Smoking near children 

The Government supports the intention of the Bill’s restrictions on smoking near children, but considers there would be practical challenges to implementing this through the proposed 20 metre distance rule. For example, an individual legally smoking cannabis in their own open backyard could potentially be within 20 metres of a child in a neighbouring property without intending to, or even being aware this is the case. To make this element more practical, the Government will move amendments to prohibit the smoking of cannabis near children through an offence involving a mental element, rather than a distance-based rule. That is, an individual will be deemed to have committed an offence if they knowingly use cannabis in a way that exposes a person less than 18 years old to this. The Government amendments include a defence for situations in which the individual can prove they took all reasonable steps to ensure the child was not exposed to smoke or vapour. 

7. Interaction with Commonwealth Government legislation 

The Government will move amendments that are designed to resolve potential incompatibilities with Commonwealth laws. The approach the Government considers most closely achieves this objective is to retain offences in the Drugs of Dependence Act for possession and cultivation of cannabis over prescribed limits but include an exception such that those offences do not apply to anyone over 18 years of age. This would mean the ACT still retains a relevant offence in legislation but with the practical outcome that possession and cultivation of small amounts of cannabis would be effectively legal for individuals. While the Government notes that Recommendation 10 made by the Standing Committee seeks to address these issues, we consider these proposed amendments to be a preferable option to achieve compatibility.

Other matters 

The Government acknowledges that changes to the legal framework for personal use of cannabis of this kind have not been tried in Australia before. Notwithstanding the above amendments, there remains a degree of uncertainty and risk associated with the proposed new approach. We will seek to collect relevant data to effectively evaluate the outcomes of these reforms, with an evaluation being conducted no more than two years after the date of the Bill’s implementation. This will help inform decisions about any necessary further reform or amendments to the legislative framework created through this Bill. The Government’s response to the Committee’s individual recommendations is outlined below. In summary, the Government agrees to four recommendations (#1, #13, #14 and #15), notes eight recommendations (#4, #5, #7, #8, #9, #10, #11, #12) and does not agree to four recommendations (#2, #3, #6, #16).

Wings

The report by the Standing Committee on Economic Development and Tourismof the ACT Legislative Assembly on Drone Delivery Systems in the ACT (in essence privileging the Wing subsidiary of Alphabet, the parent of platform conglomerate Google) features the following recommendations -

1 The Committee recommends that Access Canberra increase the amount of information on its website about Wing operations, including a direct link to the CASA exemption (CASA EX40/19) and to the Commonwealth Department of Infrastructure, Transport, Cities and Regional Development’s review of drone noise regulation. 

2 The Committee recommends that the ACT Government provide information to the Australian Information Privacy Commissioner to assist her in considering the benefits of, or need to place restrictions on, the collection by commercial delivery drones of the personal information of non-users. 

3 The Committee recommends that the ACT Government and Wing collaborate to establish an independent comparative survey of wildlife numbers and behaviour in a suburb prior to, then following the commencement of, drone delivery operations. 

4 The Committee recommends that the ACT Government proactively engage with the Commonwealth Department of Infrastructure, Transport, Cities and Regional Development’s review, drawing on the experience of the ACT community in drone delivery trials. 

The report reflects the Assembly's resolution:

That: (1) the Standing Committee on Economic Development and Tourism inquire into and report on drone delivery systems in the ACT, with particular reference to: 

(a) the decision to base the trials of the technology in the ACT and surrounding region; 

(b) the economic impact of drone delivery technology being tested in the ACT including the: (i) investment that has been brought in to the Territory; (ii) number of jobs that have been created as part of the trial; and (iii) extent of collaboration with local industry and academic institutions; 

(c) the extent of regulatory oversight of drone technology at various levels of government including but not limited to: (i) local authorities such as the Environment Protection Authority, Worksafe and Access Canberra; and (ii) Commonwealth agencies such as Air Services Australia and Civil Aviation Safety Authority; 

(d) the extent of any environmental impact as a result of trialling drone delivery technology on: (i) residents within the trial area; (ii) native wildlife; (iii) domestic animals; and (iv) greenhouse gas emissions; 

(e) ways to improve the use of drone delivery technology within the ACT; 

(f) any other relevant matter; and 

(g) information privacy

Citizenship Stripping

The Independent National Security Legislation Monitor (INSLM) report Review of citizenship loss provisions states

The INSLM Act provides for the appointment of the INSLM. I independently review the operation, effectiveness and implications of national security and counter-terrorism laws, and consider whether Australia’s national security and counter-terrorism laws contain appropriate protections for individual rights and remain necessary and proportionate to Australia’s terrorism or national security threats. In conducting the review, I have access to all relevant material, regardless of national security classification, can compel answers to questions, and hold public and private hearings. My reports are provided to the Prime Minister and/or the Attorney-General and unclassified reports must be tabled promptly in Parliament. 

By letter dated 15 February 2019, the Attorney-General, the Hon Christian Porter MP, referred for my review and report, the topic of ‘the operation, effectiveness and implications’ of the terrorism- related citizenship loss provisions in the Australian Citizenship Act 2007 (the Act). He requested that the review be completed by 15 August 2019, as it has been, noting that the PJCIS is required to examine the citizenship loss laws by the 1 December 2019. This is that report. 

There is no doubt that the legislation is both important, and to some extent, contentious. Because of its importance, as s 30(3) of the INSLM Act permits, this report is being provided simultaneously to the Prime Minister and the Attorney-General. 

For only the second time in the history of my office, and the first time for me, I am providing both a classified and an unclassified report. In view of the sensitivity of certain matters this was inevitable. The INSLM Act specifies what should remain classified and its requirements have been complied with. Additionally, I have decided that it is proper to maintain confidentiality in legal advice where the privilege is held by the Commonwealth; so I do not disclose its contents in the unclassified report, although I have considered it. The classified report is provided by me only to the Prime Minister and the Attorney-General; the unclassified report is required under the INSLM Act to be tabled in the Parliament within 15 sitting days of its receipt. 

As the PJCIS also has a relatively short time in which to report, I recommend, consistent with recent practice, that each PJCIS member receive an early, embargoed, copy of the report for the purposes of their duties as PJCIS members. If, as was the case with my 5th report, The prosecution and sentencing of children for terrorism offences, a Bill is introduced to give effect to my recommendations before 15 sitting days elapse, it is important that this report be tabled no later than introduction of the Bill so that Parliament can consider my report together with the Bill. 

I have consulted widely and received submissions from relevant departments and agencies, the Human Rights Commissioner, the Law Council of Australia, leading academics, and with civil society. In May 2019, I consulted in London with many people: current and former counterparts, agencies and departments, legal academics and practitioners, and members of the judiciary. In the current context, the United Kingdom faces many counter-terrorism threats similar to those faced by Australia and the consultation was invaluable. 

The legislation in question 

The unexpected rise of ISIL, the creation of its so-called caliphate, and the significant numbers of Australian dual nationals who fought for or supported ISIL, or otherwise were involved in its terrorist activities, led, among other legislative responses, to the enactment of the Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (the Allegiance to Australia Act). The Minister’s Second Reading Speech said one purpose of the Bill was to ‘address the challenges posed by dual citizens who betray Australia by participating in serious terrorism related activities’, and who represent ‘a serious threat to Australia and Australia’s interests’. 

The relevant provisions of that Act fall into two categories. They each: (a) only operate upon dual citizens of Australia and another country (b) proceed on the basis that an Australian citizen owes allegiance to Australia. They then proceed to provide that specified terrorist related actions inconsistent with that allegiance permit or require citizenship to be revoked (c) are designed to ensure that Australia complies with its obligations under the Convention on Statelessness. 

However, the Act adopts two quite different approaches: one conventional, one not. 

Section 35A of the Act, ‘the conviction based provisions’, fairly conventionally provides that, following a conviction for a federal terrorism offence in Australia, with an imposed sentence of imprisonment of six years or more, the relevant Minister (originally the Attorney-General, now the Minister for Home Affairs) has a power to revoke citizenship, having regard to the public interest, bearing in mind listed factors, as applied to the person in question. 

For reasons which follow, this provision passes muster under the INSLM Act and should continue as it is or likely will be necessary. 

In contrast, and less conventionally, ss 33AA and 35, ‘the operation of law provisions’, provide that, where the dual citizen (in this case 14 years of age or more) has in fact either: (a) been fighting for, or been in the service of, a declared terrorist organisation (s 35A), or (b) engages in specified forms of terrorist conduct, with terrorist like intent (s 33AA), then by operation of law, without any further event or action such as conviction by a jury or decision by a minister, official, judge or Tribunal member, the person then and there loses their Australian citizenship. 

For reasons which follow, I have concluded that these provisions do not pass muster under the INSLM Act and should, with some urgency, be repealed with retrospective effect, but be simultaneously replaced by a Ministerial decision-making model (and thus with constitutionally entrenched judicial review), coupled with merits review as to the conduct (s 33AA), fighting or service (s 35) by the Security Appeals Division of the Administrative Appeals Tribunal, and using the special advocate model which now exists for control orders. This recommendation reflects the considerable experience of that Division in passport-cancellation cases on security grounds, as well as aspects of the comparable United Kingdom review system in the Special Immigration Appeals Commission (SIAC). 

I now turn to the particular questions the INSLM Act requires me to answer. 

The current threat of terrorism 

The current threat of a terrorist attack in Australia remains at the ‘probable’ level set at the end of 2014. More than 75 people have been convicted of terrorist offences in Australia, and more than 30 are before the courts. The threat comes mainly from radical Islamists and to a lesser, albeit increasing, extent, violent right-wing radicals. 

However, the principal focus of the relevant provisions, and almost the sole focus of the operation of law provisions in ss 33AA and 35, concerns criminal activity external to Australia, which so far comes mainly from ISIL, its fighters and adherents. 

Between 2014 and 2018, large numbers of foreign fighters and their families from both Australia and other countries travelled to Syria and Iraq. Although many have died, ISIL has produced a large, now widely dispersed, radicalised, highly trained diaspora of actual or potential terrorists, many of whom remain with their supporters and dependants including children, and most of whom remain outside of their countries of citizenship. Although ISIL’s so-called ‘Caliphate’ is now reduced to effective territorial control of parts of refugee camps, it remains a significant source of concern. 

The ISIL threat is wider than the foreign-fighters’ group, large though it is, because of the effectiveness of its message, particularly over the internet, to inspire other attacks. As the then UK Home Secretary, Sajid Javid, said in a speech on 20 May 2019, ‘In fact, of all the terrorist plots thwarted by the UK and our Western allies last year, 80% were planned by people inspired by the ideology of [ISIL]/Daesh, but who had never actually been in contact with the so-called Caliphate.’ 

The authorities estimate that about 80 Australians or former Australians remain in Syria and Iraq (together with their dependent children), some of whom no doubt wish to return to Australia, and some have already done so. 

Children deserve special mention. During that same period, children and young people variously travelled to ISIL-controlled areas of their own volition (the ‘jihadi brides’, for example), were taken by their parents or guardians, and were, then or later, unable or unwilling to leave and were then pressed into service of ISIL. 

Australia’s important obligations under international law towards children under for example the Convention on the Rights of the Child were considered by me in my 5th report to the Prime Minister, The prosecution and sentencing of children for terrorism offences. As I there wrote, and as remains the case in the context of this report: There are ... parallels between child soldiers and Australian children in territory controlled by ISIL: the fact that each are certainly victims does not mean they cannot also become perpetrators, and thus they remain a cohort of interest. 

It is also important to distinguish the different legal position of children depending upon their age: under 10, no criminal liability; under 14, a presumption of no criminal intent, i.e. doli incapax; and 14–18, where the position in our federal system is more complex (as explained in my 5th report). 

There can be little doubt that some of the remaining 80, and no doubt others elsewhere abroad (for the relevant provisions are not directly limited by location) remain a terrorist threat to Australia and its people by their direct acts and by their capacity to inspire others to act. 

Where the person is solely an Australian citizen, then until the very recent enactment of the Counter-Terrorism (Temporary Exclusion Orders) Act 2019, they could not be prevented from returning to Australia where, of course, there may be no sufficient admissible evidence to criminally charge them nor obtain a control order.

However, where they are a dual citizen of Australia and another country, lawful removal of citizenship is a possible way of keeping the person out of Australia; if they are discovered to have returned, then they must be placed into immigration detention pending deportation. 

Constitutional matters 

For the reasons set out in Chapter 3, I am satisfied that the citizenship loss provisions (and the replacement laws I recommend in this report) are supported by the following powers in s 51 of the Constitution: (a) the power with respect to ‘naturalisation and aliens’ : s 51(xix) (b) insofar as the provisions act, as they largely do, upon ‘places, persons, matters or things physically external to Australia’, the geographically external aspect of the external affairs power: s 51(xxix)2 (c) given the decision in Thomas v Mowbray (2007) 233 CLR 307, the defence power: s 51(vi)3 (d) insofar as loss of citizenship would be due to terrorist acts or association, the executive power of the Commonwealth which ‘extends to the execution and maintenance of this Constitution, and the laws of the Commonwealth’ read with the express incidental power in s 51. As Burns v Ransley (1949) 79 CLR 101 identified, this is a source of power to legislate against subversive or seditious conduct. 

Necessity and proportionality 

My conclusion as to these matters, in summary, is that citizenship loss because of terrorist conduct may be both necessary and proportionate under the conviction-based provisions. 

The reasons why it may be both necessary and proportionate include the following:

(a) The ‘simplified outline’ in s 32A notes that citizenship can be lost under the provisions I am now considering ‘by various kinds of conduct inconsistent with allegiance to Australia’. 

(b) The Australian Citizenship Act accurately reflects constitutional case law and legal history by reciting that Australian citizenship is a common bond, involving reciprocal rights and obligations. 

(c) Such a bond is capable of being broken by express renunciation or by renunciation implied from conduct incompatible with the continued bond. 

(d) As ‘a federal offence is, in effect, an offence against the whole Australian community’ – a serious terrorism offence is the paradigm case of an offence against the Australian community and one which may fairly be seen to break that common bond. 

(e) Given the current threat level from dual citizens, especially those fighting for or supporting ISIL, it may in a particular case be necessary in the public interest to exclude such a person who can be seen to have renounced their citizenship by their conduct, from entering Australia and from other rights of citizenship.

 In contrast, fundamentally, it is neither necessary, nor is it proportionate to the counter-terrorism threat, to revoke such citizenship without considering what the public interest requires in each particular case by reference to the factors which the Minister must take into account in deciding to 2 3 

Section 51(xix) of the Constitution enables the Parliament to legislate with respect to things geographically external to Australia. As a majority of the High Court confirmed in XYZ v Commonwealth, that power extends to making laws with respect to ‘places, persons, matters or things physically external to Australia’: (2006) 227 CLR 532 at [10] (Gleeson CJ), [30] (Gummow, Hayne and Crennan JJ). The High Court has upheld the validity of Commonwealth legislation which concerns conduct outside Australia: see for example Polyukhovich v Commonwealth (1991) 172 CLR 501; XYZ v Commonwealth (2006) 227 CLR 532; Alqudsi v Commonwealth (2015) 91 NSWLR 92. The defence power in s 51(vi) of the Constitution empowers the Commonwealth Parliament to make laws concerning defence against terrorist threats. In Thomas v Mowbray (2007) 233 CLR 307, a majority of the High Court took a broad view of the defence power and accepted that it supported Commonwealth legislation providing for interim control orders designed to protect the public from terrorist acts. A majority of the High Court considered that the defence power was not limited to making laws with respect to defence against external aggression from a foreign nation or to the protection of the Commonwealth and the States as bodies politic as opposed to the public or sections of the public which constitute those bodies politic. Chief Justice Gleeson considered that the defence power ‘is not confined to waging war in a conventional sense of combat between forces of nations’: Thomas v Mowbray (2007) 233 CLR 307, 324 [7]. 

Further, a law will be by the defence power if it can reasonably be regarded as a means towards attaining an object which is connected with defence – Marcus Clark and Co. Ltd. v The Commonwealth (1952) 87 CLR 177 at 256 per Fullagar J. In Pham, the plurality said (2015) 256 CLR 550, [24]. ‘As Kirby J observed in Putland v The Queen, a federal offence is, in effect, an offence against the whole Australian community and so the offence is the same for every offender throughout the Commonwealth.’ revoke citizenship under the conviction-based provisions in s 35, but which are only taken into account, and weighed-up, in the operation of law provisions if the Minister voluntarily chooses to consider whether to restore citizenship under s 33AA or s 35. Further, those provisions do not sufficiently protect human rights and they are likely to result in breaches of international law. 

In particular those provisions:

(a) operate in an uncontrolled manner so that a person who has committed the most serious of offences and is an undoubted threat to Australia while remaining a citizen is treated the same as one whose behaviour is at the lowest end of the spectrums of criminal behaviour and is no longer any threat and has other significant mitigating circumstances 

(b) operate in an uncertain manner: it will often not be possible for the authorities to know when citizenship has ceased. The Minister has said as at 29 December 2018 12 persons had lost citizenship, however it is almost certain that more, perhaps many more, formerly dual Australian citizens, both adults and even children, have lost citizenship, but that significant change of status, is unknown to them or Australian authorities 

(c) lack the traditional and desirable accountability which comes with a person, court or tribunal taking responsibility for a decision and being subject to constitutionally entrenched judicial review 

(d) cause Australia to be in breach of its international obligations under the Convention on the Rights of the Child as the operation of law provisions pay no regard to the best interests of a child over 14 

(e) will inevitably cause real unfairness in particular cases including because of the usual decision not to notify a former citizen they have lost Australian citizenship, even though that person may well take irrevocable and important steps, such as giving birth to more children, on the incorrect assumption they remain a citizen of Australia 

(f) lack proper review rights. Although challenging a determination of dual citizenship is possible, albeit difficult in some cases, challenging the operation of the law on the conduct is likely to be very difficult; the official view expressed in hearings to me is that even a successful challenge to ASIO’s qualified security assessments (QSAs) will not inevitably result in restoration of rights of citizenship, but at best a departmental recommendation for the Minister to restore citizenship, which the Minister is not bound to consider 

(g) lack proper oversight in relation to allegations of maladministration because the Citizenship Review Board comprises both intelligence and non-intelligence personnel so that neither the IGIS nor the Ombudsman has sufficient jurisdiction 

(h) potentially causes unintended and not easily contained effects on Australia’s relations with other countries 

(i) cause confusion and potential legal difficulties for ASIS and ASD because of additional safeguards in the Intelligence Services Act when those agencies seek to exercise their powers in relation to Australian citizens 

(j) may impede criminal prosecutions or cause them to fail because, variously: i. where it is an element of the offence that an accused person was an Australian citizen (Criminal Code s 119.1–.2), or where that status is a jurisdictional requirement (Criminal Code s 15), the prosecution in a criminal trial may not be able to prove that status beyond reasonable doubt ii. where an offence is committed wholly overseas by a person who was not then an Australian citizen, the Attorney-General must give consent before ‘proceedings are commenced’: Criminal Code s 16, but if that status is not known the consent may not be obtained, potentially making the prosecution fail.

 The INSLM recommendations are

 For those reasons (as further explained in the report), I conclude that: (a) s 35A is necessary, proportionate to the counter-terrorism threat and generally contains appropriate safeguards for protecting the rights of individuals; but that (b) ss 33AA and s 35 are neither necessary nor proportionate, nor do they contain appropriate safeguards for protecting the rights of individuals; (c) ss 33AA and 35 should urgently be repealed and, especially because of their uncontrolled and uncertain operation, be repealed retrospectively; (d) iii. iv. 

The recommended model has the following features:

(a) The Minister may revoke citizenship in the following circumstances, i.e. if he or she: i. is reasonably satisfied that the physical conduct element (as it currently appears in the Act) in ss 33AA (1–9) or s 35 (1–4) exists ii. has regard to the factors in s 33AA(17) (as currently enacted) in determining whether there is first, a repudiation of allegiance such that, second, it is not in the public interest for the person to remain an Australian citizen – this expressly requires for example, the best interests of the child to be considered. 

(b) The Minister, as with other administrative decision makers, may rely on probative material which is not admissible in court under the Evidence Act, including classified material, in coming to a reasonable satisfaction as to the existence of conduct (as with 33AA), fighting or service (as with 35). 

(c) Because giving prior notice to the proposed revokee or their other country of citizenship may lead to the person abandoning their other citizenship or to the other country acting to revoke citizenship before Australia does, thus rendering the scheme ineffective, the Minister is not obliged to give procedural fairness to the person before revoking their citizenship nor prior notice to the other country involved, however the Minister is bound to give the person notice of their loss of citizenship and their right to request the Minister to reconsider the decision. The Minister may determine in writing that a notice should not be given to a person if the Minister is satisfied that giving the notice could prejudice the security, defence or international relations of Australia, or Australian law enforcement operations; but such a determination would cease to have effect after 90 days. The Minister has a one-off option to determine in writing that a notice should not be given for a further period of 90 days. A Minister who exercises this option must provide a copy of their determination to the IGIS and the PJCIS. 

(d) The decision would broaden the scope for constitutionally entrenched judicial review under s 75(v) of the Constitution and its Federal Court analogue under s 39B of the Judiciary Act. As a result, it would therefore be open for mandamus to lie to require the Minister to consider the request for reconsideration of a revocation decision. 

(e) There is presently at least some merits review of the QSA in the Security Appeals Division (SAD) of the AAT. Consistent with the approach in the Migration Act, it is not appropriate for the Tribunal to review a decision made in the Minister’s personal capacity (who is responsible to Parliament) in relation to the public interest. However, there should be merits review in the SAD as to whether there could have been or is reasonable satisfaction as to the existence of the requisite conduct for citizenship loss. That would replace any right of challenge to the QSA (challenge of which would therefore be redundant). In order to provide at least some ‘equality of arms’ in the AAT, the special advocate legislation now in the National Security Information (Civil and Criminal Information) Act in relation to control orders would be extended to this process.

a Ministerial decision-making model with proper safeguards could take the place of ss 33AA and 35 and such a model would pass muster under the INSLM Act because it would: i. be constitutionally valid ii. be necessary and proportionate to threats but that ensure compliance with international obligations properly protect individual rights. as to whether there could have been or is reasonable satisfaction as to the existence of the requisite conduct for citizenship loss. That would replace any right of challenge to the QSA (challenge of which would therefore be redundant). In order to provide at least some ‘equality of arms’ in the AAT, the special advocate legislation now in the National Security Information (Civil and Criminal Information) Act in relation to control orders would be extended to this process. 

(f) There will be the normal right of appeal on questions of law to the Federal Court, which will be able to view both the open and closed reasons of the AAT, as will any special advocate on appeal. 

Finally, consistent with s 6(1)(d) of the INSLM Act, I have considered whether the legislation considered in this review is being used for any matter unrelated to counter-terrorism and national security. In the conduct of this review there is no evidence to suggest this.

Liability and the Reasonable Computer

Should the reasonable compurter join the reasonable man (aka the Man who rides on the Clapham Omnibus, Man on the Bondi Tram or Woman in the Bondi Taxi)?

'The Reasonable Computer: Disrupting the Paradigm of Tort Liability' by Ryan Abbott in (2018) 86 George Washington Law Review comments

Artificial intelligence is part of our daily lives. Whether working as chauffeurs, accountants, or police, computers are taking over a growing number of tasks once performed by people. As this occurs, computers will also cause the injuries inevitably associated with these activities. Accidents happen, and now computer-generated accidents happen. The recent fatality involving Tesla's autonomous driving software is just one example in a long series of "computer- generated torts.," 

Yet hysteria over such injuries is misplaced. In fact, machines are, or at least have the potential to be, substantially safer than people. Self-driving cars will cause accidents, but they will cause fewer accidents than human drivers. Because automation will result in substantial safety benefits, tort law should encourage its adoption as a means of accident prevention. 

Under current legal frameworks, suppliers of computer tortfeasors are likely strictly responsible for their harms. This Article argues that where a supplier can show that an autonomous computer, robot, or machine is safer than a reasonable person, the supplier should be liable in negligence rather than strict liability. The negligence test would focus on the computer's act instead of its design, and in a sense, it would treat a computer tortfeasor as a person rather than a product. Negligence-based liability would incentivize automation when doing so would reduce accidents, and it would continue to reward sup- pliers for improving safety. 

More importantly, principles of harm avoidance suggest that once com- puters become safer than people, human tortfeasors should no longer be mea- sured against the standard of the hypothetical reasonable person that has been employed for hundreds of years. Rather, individuals should be judged against computers. To appropriate the immortal words of Justice Holmes, we are all "hasty and awkward" compared to the reasonable computer.

Abbott argues

An automation revolution is coming, and it is going to be hugely disruptive.' Ever cheaper, faster, and more sophisticated computers are able to do the work of people in a wide variety of fields and on an unprecedented scale. They may do this at a fraction of the cost of existing workers, and in some instances, they already outperform their human competition. Today's automation is not limited to manual labor; modem machines are already diagnosing disease, conducting legal due diligence, and providing translation services. For better or worse, automation is the way of the future-the economics are simply too compelling for any other outcome. But what of the injuries these automatons will inevitably cause? What happens when a machine fails to diagnose a cancer, ignores an incriminating email, or inadvertently starts a war? How should the law respond to computer-generated torts? 

Tort law has answers to these questions based on a system of common law that has evolved over centuries to deal with unintended harms., The goals of this body of law are many: to reduce accidents, promote fairness, provide a peaceful means of dispute resolution, real- locate and spread losses, promote positive social values, and so forth.9 Whether tort law is the best means for achieving all of these goals is debatable, but jurists are united in considering accident reduction as one of the central, if not the primary, aims of tort law. By creating a framework for loss shifting from injured victims to tortfeasors, tort law deters unsafe conduct." A purely financially motivated rational actor will reduce potentially harmful activity to the extent that the cost of accidents exceeds the benefits of the activity. This liability framework has far-reaching and sometimes complex impacts on behavior. It can either accelerate or impede the introduction of new technologies. 

Most injuries people cause are evaluated under a negligence stan- dard where unreasonable conduct establishes liability. When computers cause the same injuries, however, a strict liability standard applies. This distinction has financial consequences and a corresponding impact on the rate of technology adoption. It discourages automation, because machines incur greater liability than people. It also means that in cases where automation will improve safety, the current framework to prevent accidents now has the opposite effect. 

This Article argues that the acts of autonomous computer tortfeasors should be evaluated under a negligence standard, rather than a strict liability standard, in cases where an autonomous computer is occupying the position of a reasonable person in the traditional negligence paradigm and where automation is likely to improve safety. For the purposes of ultimate financial liability, the computer's supplier (e.g., manufacturers and retailers) should still be responsible for satisfying judgments under standard principles of product liability law. 

This Article employs a functional approach to distinguish an au- tonomous computer, robot, or machine from an ordinary product. Society's relationship with technology has changed. Computers are no longer just inert tools directed by individuals. Rather, in at least some instances, computers are given tasks to complete and determine for themselves how to complete those tasks. For instance, a person could instruct a self-driving car to take them from point A to point B, but would not control how the machine does so. By contrast, a person driving a conventional vehicle from point A to point B controls how the machine travels. This distinction is analogous to the distinction be- tween employees and independent contractors, which centers on the degree of control and independence." As this Article uses such terms, autonomous machines or computer tortfeasors control the means of completing tasks, regardless of their programming. 

The most important implication of this line of reasoning is that just as computer tortfeasors should be compared to human tortfeasors, so too should humans be compared to computers. Once computers become safer than people and practical to substitute, com- puters should set the baseline for the new standard of care. This means that human defendants would no longer have their liability based on what a hypothetical, reasonable person would have done in their situation, but what a computer would have done. In time, as computers come to increasingly outperform people, this rule would mean that someone's best efforts would no longer be sufficient to avoid liability. It would not mandate automation in the interests of freedom and autonomy, but people would engage in certain activities at their own peril. Such a rule is entirely consistent with the ratio- nale for the objective standard of the reasonable person, and it would benefit the general welfare. Eventually, the continually improving "reasonable computer" standard should even apply to computer tortfeasors, such that computers will be held to the standard of other computers. By this time, computers will cause so little harm that the primary effect of the standard would be to make human tortfeasors essentially strictly liable for their harms. 

This Article uses self-driving cars as a case study to demonstrate the need for a new torts paradigm. There is public concern over the safety of self-driving cars, but a staggering ninety-four percent of crashes involve human error. These contribute to over 37,000 fatalities a year in the United States at a cost of about $242 billion.  Automated vehicles may already be safer than human drivers, but if not, they will be soon. Shifting to negligence would accelerate the adoption of driverless technologies, which, according to a report by the consulting firm McKinsey and Company, may otherwise not be wide- spread until the middle of the century. 

Automated vehicles may be the most prominent and disruptive upcoming example of robots changing society, but this analysis applies to any context with computer tortfeasors. For instance, IBM's flagship artificial intelligence system, Watson, is working with clinicians at Me morial Sloan Kettering to analyze patient medical records and provide evidence-based cancer treatment options. It even provides supporting literature to human physicians to support its recommendations. Like self-driving cars, Watson does not need to be perfect to improve safety - it just needs to be better than people. In that respect, the bar is unfortunately low. Medical error is one of the leading causes of death. A 2016 study in the British Medical Journal reported that it is the third leading cause of death in the United States, ranking just behind cardiovascular disease and cancer. Some companies already claim their artificial intelligence systems outperform doctors, and that claim is not hard to swallow. Why should a computer not be able to outperform doctors when the computer can access the entire wealth of medical literature with perfect recall, benefit from the experience of directly having treated millions of patients, and be immune to fatigue? 

This Article is divided into three Parts. Part I provides background on the historical development of injuries caused by machines and how the law has evolved to address these harms. It discusses the role of tort law in injury prevention and the development of negli- gence and strict product liability. Part II argues that while some forms of automation should prevent accidents, tort law may act as a deterrent to adopting safer technologies. To encourage automation and improve safety, this Part proposes a new categorization of "computer-generated torts" for a subset of machine injuries. This would apply to cases in which an autonomous computer, robot, or machine is occupying the position of a reasonable person in the traditional negligence paradigm and where automation is likely to improve safety. This Part contends that the acts of computer tortfeasors should be evaluated under a negligence standard rather than under principles of product liability, and it goes on to propose rules for implementing the system. 

Finally, Part III argues that once computer operators become safer than people and automation is practical, the "reasonable computer" should become the new standard of care. It explains how this standard would work, argues the reasonable computer standard works better than a reasonable person using an autonomous machine, and consid- ers when the standard should apply to computer tortfeasors. At some point, computers will be so safe that the standard's most significant effect would be to internalize the cost of accidents on human tortfeasors. 

This Article is focused on the effects of automation on accidents, but automation implicates a host of social concerns. It is important that policymakers act to ensure that automation benefits everyone. Automation may increase productivity and wealth, but it may also contribute to unemployment, financial disparities, and decreased social mobility. These and other concerns are certainly important to consider in the automation discussion, but tort liability may not be the best mechanism to address every issue related to automation

Obscurity

'The ‘Right to be Forgottenʼ Online within G20 Statutory Data Protection Frameworks' by David Erdos and Krzysztof Garstka comments

Although it is the EU’s General Data Protection Regulation and the Google Spain judgment which has brought the concept of the ʻright to be forgottenʼ online to the fore, this paper argues that its basic underpinnings are present in the great majority of G20 statutory frameworks. Whilst China, India, Saudi Arabia and the United States remain exceptional cases, fifteen out of nineteen (almost 80%) of G20 countries now have fully-fledged statutory data protection laws. By default, almost all of these laws empower individuals to challenge the continued dissemination of personal data not only when such data may be inaccurate but also on wider legitimacy grounds. Moreover, eleven of these countries have adopted statutory ʻintermediaryʼ shields which could help justify why certain online platforms may be required to respond to well-founded ex post challenges even if they lack most ex ante duties here. Nevertheless, the precise scope of many data protection laws online remains opaque and the relationship between such laws and freedom of expression is often unsatisfactory. Despite this, it is argued that G20 countries and G20 Data Protection Authorities should strive to achieve proportionate and effective reconciliation between online freedom of expression and ex post data protection claims, both through careful application of existing law and ultimately through and under new legislative initiatives.

Relators and crimes against humanity

In Daniel Taylor v Attorney-General of the Commonwealth [2019] HCA 30 the High Court has responded to questions stated in a special case of interest to people concerned with crimes against humanity.

A majority of the Court held that it was unnecessary to answer the substantive questions stated in the the case in order to determine the plaintiff's entitlement to relief. The basis was that s 268.121(2) of the Criminal Code (Cth) precludes private prosecution of an offence against Div 268 of the Criminal Code.

Under s 13(a) of the Crimes Act 1914 (Cth) any person may institute proceedings for the commitment for trial of a person in respect of an indictable offence against the law of the Commonwealth, unless the contrary intention appears in the Act creating the offence. Section 268.121(1) of the Criminal Code provides that proceedings for an offence against Div 268 of the Criminal Code must not be commenced without the written consent of the Attorney-General of the Commonwealth. Section 268.121(2) of the Criminal Code provides that an offence against Div 268 "may only be prosecuted in the name of the Attorney-General".

 On 16 March 2018 Taylor lodged a charge-sheet and draft summons at the Melbourne Magistrates' Court alleging that Aung San Suu Kyi (Minister for the Office of the President and Foreign Minister of the Republic of the Union of Myanmar) had committed a crime against humanity in contravention of s 268.11 of the Criminal Code, a Commonwealth indictable offence. The offence appears in Div 268 of the Criminal Code and is unable to be heard and determined summarily.

The lodgement purportedly relied on s 13(a) of the Crimes Act.

On the same day Taylor requested the Commonwealth Attorney-General's  consent under s 268.121(1) of the Criminal Code to the commencement of the prosecution. The Attorney-General did not consent. On 23 March 2018 Taylor accordling commenced a proceeding against the Attorney-General in the original jurisdiction of the High Court, seeking to quash the decision not to consent to the commencement of the prosecution and to compel the Attorney-General to reconsider the request for consent.

In June this year a majority of the Court held that, by providing that an offence against Div 268 of the Criminal Code "may only be prosecuted in the name of the Attorney‑General", s 268.121(2) of the Criminal Code provides a contrary intention for the purpose of s 13(a) of the Crimes Act so as to preclude the private prosecution of an offence against that Division.

A majority of the Court held that the Attorney‑General's decision to refuse consent to the plaintiff's proposed prosecution of Suu Kyi was the only decision legally open. As a result the relief sought by the plaintiff could only be refused.

Edelman J states

I would have allowed this special case to progress to further hearing past the preliminary issue. A relator prosecution brought in the name of the Attorney-General, and controlled by the Attorney-General, is a prosecution "in the name of the Attorney-General". The particular international context in which Div 268 was enacted is consistent with this conclusion.

The specific questions and answers were

1.  Is the defendant's decision to refuse to consent under s 268.121 of the Criminal Code (Cth) to the prosecution of Ms Suu Kyi insusceptible of judicial review on the grounds raised in the amended application? 

Answer: Unnecessary to answer. 

2. If "no" to question 1, did the defendant make a jurisdictional error in refusing consent under s 268.121 of the Criminal Code to the prosecution of Ms Suu Kyi on the ground that Australia was obliged under customary international law to afford an incumbent foreign minister absolute immunity from Australia's domestic criminal jurisdiction (the asserted immunity) for one or more of the following reasons:

a. Under customary international law as at the date of the defendant's decision, the asserted immunity did not apply in a domestic criminal prosecution in respect of crimes defined in the Rome Statute? 

b. By reason of: the declaration made by Australia upon ratifying the Rome Statute; Australia's treaty obligations under the Rome Statute; and/or the enactment of the International Criminal Court Act 2002 (Cth) and the International Criminal Court (Consequential Amendments) Act 2002 (Cth), the obligations assumed by Australia under international law were such that the defendant was not entitled to refuse, on the basis of the asserted immunity, to consent to the domestic prosecution of Ms Suu Kyi in respect of crimes defined in the Rome Statute? 

c. By reason of: the declaration made by Australia upon ratifying the Rome Statute; Australia's treaty obligations under the Rome Statute; the enactment of the International Criminal Court Act and the International Criminal Court (Consequential Amendments) Act; and/or the Diplomatic Privileges and Immunities Act 1967 (Cth), the Consular Privileges and Immunities Act 1972 (Cth) and the Foreign States Immunities Act 1985 (Cth), the defendant was not entitled under Australian domestic law to refuse, on the basis of the asserted immunity, to consent to the domestic prosecution of Ms Suu Kyi in respect of crimes defined in the Rome Statute? 

Answer: Does not arise. 

3. If "no" to question 1, did the defendant make a jurisdictional error in refusing consent to the prosecution of Ms Suu Kyi on the ground that he failed to afford the plaintiff procedural fairness? 

Answer: Does not arise. 

4. What relief, if any, should be granted? 

Answer: None. The amended application should be dismissed with costs. 

5. Who should bear the costs of the special case? 

Answer: The plaintiff.

Algorithmics

'Algorithmic Transparency and Decision-Making Accountability: Thoughts for Buying Machine Learning Algorithms' by Jake Goldenfein in Office of the Victorian Information Commissioner (ed), Closer to the Machine: Technical, Social, and Legal aspects of AI (Office of the Victorian Information Commissioner, 2019) comments

There has been a great deal of research on how to achieve algorithmic accountability and transparency in automated decision-making systems - especially for those used in public governance. However, good accountability in the implementation and use of automated decision-making systems is far from simple. It involves multiple overlapping institutional, technical, and political considerations, and becomes all the more complex in the context of machine learning based, rather than rule based, decision systems. This chapter argues that relying on human oversight of automated systems, so called ‘human-in-the-loop’ approaches, is entirely deficient, and suggests addressing transparency and accountability during the procurement phase of machine learning systems - during their specification and parameterisation - is absolutely critical. In a machine learning based automated decision system, the accountability typically associated with a public official making a decision has already been displaced into the actions and decisions of those creating the system - the bureaucrats and engineers involved in building the relevant models, curating the datasets, and implementing a system institutionally. But what should those system designers be thinking about and asking for when specifying those systems? 

There are a lot of accountability mechanisms available for system designers to consider, including new computational transparency mechanisms, ‘fairness’ and non-discrimination, and ‘explainability’ of decisions. If an official specifies for a system to be transparent, fair, or explainable, however, it is important that they understand the limitations of such a specification in the context of machine learning. Each of these approaches is fraught with risks, limitations, and the challenging political economy of technology platforms in government. Without understand the complexities and limitations of those accountability and transparency ideas, they risk disempowering public officials in the face of private industry technology vendors, who use trade secrets and market power in deeply problematic ways, as well as producing deficient accountability outcomes. This chapter therefore outlines the risks associated with corporate cooption of those transparency and accountability mechanisms, and suggests that significant resources must be invested in developing the necessary skills in the public sector for deciding whether a machine learning system is useful and desirable, and how it might be made as accountable and transparent as possible.