Federal Law Review

Publisher:: Sage Publications, Inc.
Publication date:: 2021-09-06

ISBN:: 0067-205X

Issue Number

No. 52-1, March 2024

Latest documents

Traversing Uncharted Territory? The Legislative and Regulatory Landscape of Heritable Human Genome Editing in Australia
In 2018, the birth of the world’s first ‘CRISPR Babies’ rendered the global community in disbelief. This was the catalyst for an international moratorium on Heritable Human Genome Editing (‘HHGE’). For the first time, the international community was prompted to consider a pathway forward to regulate HHGE. In light of the evolving maturity of Clustered Regularly Interspaced Short Palindromic Repeats (‘CRISPR’) as a biotechnology, it is timely to evaluate Australian federal legal and regulatory frameworks governing human genome editing. The response to HHGE must carefully balance the need to prevent unethical applications, against the progress of research to improve and refine the technology. This article argues Australia’s federal legislative regime must be reviewed to ensure it has the necessary capabilities to effectively regulate HHGE. It applies three schools of thought which offer an instructive theoretical lens to understand how Australian law has responded to advancements in technology. In addition, an analysis of the governing federal legislation reveals three regulatory gaps — complexity, operational ambiguity and inconsistent legislative objectives. Together, these gaps may be indicative of a legislative and regulatory landscape that is no longer fit for purpose.
Reviewing Review: Administrative Justice and the Immigration Assessment Authority
The Immigration Assessment Authority (‘IAA’) provides the final merits review mechanism for people seeking asylum by boat in Australia. For fast-track applicants, the outcome of IAA review is incredibly significant, with consequences ranging from resettlement in Australia, removal to an applicant’s country of origin or indefinite immigration detention in harsh conditions. Eight years since its introduction, this article asks whether the IAA has realised the goal of promoting efficient review whilst meeting other important administrative objectives. The article takes a novel approach, applying a pre-formulated theory of administrative justice to analyse whether the IAA has balanced administrative justice properties. In so doing, this article offers a unique lens to critically reflect on the role of the IAA and whether, once its mandate is ended, this new model of review should be abandoned or revived for future merits review of asylum claims.
Reviewing Review: Administrative Justice and the Immigration Assessment Authority
The Immigration Assessment Authority (‘IAA’) provides the final merits review mechanism for people seeking asylum by boat in Australia. For fast-track applicants, the outcome of IAA review is incredibly significant, with consequences ranging from resettlement in Australia, removal to an applicant’s country of origin or indefinite immigration detention in harsh conditions. Eight years since its introduction, this article asks whether the IAA has realised the goal of promoting efficient review whilst meeting other important administrative objectives. The article takes a novel approach, applying a pre-formulated theory of administrative justice to analyse whether the IAA has balanced administrative justice properties. In so doing, this article offers a unique lens to critically reflect on the role of the IAA and whether, once its mandate is ended, this new model of review should be abandoned or revived for future merits review of asylum claims.
Foreign Interference and the Incremental Chilling of Free Speech
Foreign interference is a growing threat to all liberal democracies, including Australia. To respond to this growing threat, the Department of Home Affairs has developed a complex ‘Counter-Foreign Interference Strategy’ (CFIS). At the heart of the strategy lies a suite of interlocking and overlapping legislation, including the Foreign Influence Transparency Scheme Act 2018 (FITS Act), the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 and the Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Act 2018 (Electoral Funding Act). The aim of this paper is to explain and clarify the legislation and the free speech burdens it imposes, and determine whether the laws are suitably targeted at foreign interference without unduly limiting legitimate communication activity. We argue that the current criminal law regime is ineffective in addressing the problem because foreign interference is a complex and pervasive phenomenon taking many different forms — from espionage on university campuses to anonymous and targeted social media campaigns. The legislative scheme is not properly tailored to tackle foreign interference as it actually occurs.
Traversing Uncharted Territory? The Legislative and Regulatory Landscape of Heritable Human Genome Editing in Australia
In 2018, the birth of the world’s first ‘CRISPR Babies’ rendered the global community in disbelief. This was the catalyst for an international moratorium on Heritable Human Genome Editing (‘HHGE’). For the first time, the international community was prompted to consider a pathway forward to regulate HHGE. In light of the evolving maturity of Clustered Regularly Interspaced Short Palindromic Repeats (‘CRISPR’) as a biotechnology, it is timely to evaluate Australian federal legal and regulatory frameworks governing human genome editing. The response to HHGE must carefully balance the need to prevent unethical applications, against the progress of research to improve and refine the technology. This article argues Australia’s federal legislative regime must be reviewed to ensure it has the necessary capabilities to effectively regulate HHGE. It applies three schools of thought which offer an instructive theoretical lens to understand how Australian law has responded to advancements in technology. In addition, an analysis of the governing federal legislation reveals three regulatory gaps — complexity, operational ambiguity and inconsistent legislative objectives. Together, these gaps may be indicative of a legislative and regulatory landscape that is no longer fit for purpose.
Managing Ownership of Copyright in Research Publications to Increase the Public Benefits from Research
Producing and disseminating knowledge is core university business and a collaborative, global activity engaging multiple stakeholders including universities, researchers, governments, Indigenous communities, commercial bodies and the public. While ownership of university inventions attracts scholarly and policy attention, effective management of copyright in research outputs is also necessary to maximise the benefits of publicly funded research, but often neglected. This article explains current dynamics in academic publishing and research ownership. It seeks to explain the complex interface of copyright law, university policies, academic customary practices, Enterprise Bargaining Agreements (EBA), research funder mandates and policies, the guidelines and policies that pertain to Indigenous research, and publishing contracts. The article concludes with proposals for copyright management to maximise opportunities for greater public benefit from Australian research.
The Burden of Proof in Taxation Disputes: Does Section 170 or Part IVA of the Income Tax Assessment Act 1936 (Cth) Offend the Rule of Law?
For the purposes of assessing tax, section 170 of the Income Tax Assessment Act 1936 (Cth) permits the Commissioner to determine that the taxpayer has committed fraud or evasion. The taxpayer then bears the onus of showing that they have not. There is no requirement that the Commissioner show that such determination is correct, nor to support it with evidence. The Commissioner may, if they wish, do nothing more than put the taxpayer to proof by tendering their assessment as evidence. This article sets out in detail how the reversal of the onus of proof in cases arising from the Commissioner’s determination of fraud or evasion offends the principle of procedural fairness, as well as the principles of certainty and prospectivity. This paper also extends that analysis to disputes arising out of the commissioner’s determination of tax avoidance under Part IVA of the Income Tax Assessment Act 1936 (Cth). This paper further considers whether general administrative law principles, in particular the Briginshaw Principle, may obviate some of the concerns regarding the reversal of the onus of proof. It is contended that the reversal of the onus of proof in cases arising out of the Commissioner’s determination of fraud or evasion under section 170 and tax avoidance under Part IVA significantly offend fundamental tenets of the rule of law, namely, the principles of procedural fairness, certainty and prospectivity. It is further contended that requiring the Commissioner to adduce evidence to support the opinion or allowing the Commissioner’s determination to be judicially examined would obviate the offence to the rule of law.
The Burden of Proof in Taxation Disputes: Does Section 170 or Part IVA of the Income Tax Assessment Act 1936 (Cth) Offend the Rule of Law?
For the purposes of assessing tax, section 170 of the Income Tax Assessment Act 1936 (Cth) permits the Commissioner to determine that the taxpayer has committed fraud or evasion. The taxpayer then bears the onus of showing that they have not. There is no requirement that the Commissioner show that such determination is correct, nor to support it with evidence. The Commissioner may, if they wish, do nothing more than put the taxpayer to proof by tendering their assessment as evidence. This article sets out in detail how the reversal of the onus of proof in cases arising from the Commissioner’s determination of fraud or evasion offends the principle of procedural fairness, as well as the principles of certainty and prospectivity. This paper also extends that analysis to disputes arising out of the commissioner’s determination of tax avoidance under Part IVA of the Income Tax Assessment Act 1936 (Cth). This paper further considers whether general administrative law principles, in particular the Briginshaw Principle, may obviate some of the concerns regarding the reversal of the onus of proof. It is contended that the reversal of the onus of proof in cases arising out of the Commissioner’s determination of fraud or evasion under section 170 and tax avoidance under Part IVA significantly offend fundamental tenets of the rule of law, namely, the principles of procedural fairness, certainty and prospectivity. It is further contended that requiring the Commissioner to adduce evidence to support the opinion or allowing the Commissioner’s determination to be judicially examined would obviate the offence to the rule of law.
Foreign Interference and the Incremental Chilling of Free Speech
Foreign interference is a growing threat to all liberal democracies, including Australia. To respond to this growing threat, the Department of Home Affairs has developed a complex ‘Counter-Foreign Interference Strategy’ (CFIS). At the heart of the strategy lies a suite of interlocking and overlapping legislation, including the Foreign Influence Transparency Scheme Act 2018 (FITS Act), the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 and the Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Act 2018 (Electoral Funding Act). The aim of this paper is to explain and clarify the legislation and the free speech burdens it imposes, and determine whether the laws are suitably targeted at foreign interference without unduly limiting legitimate communication activity. We argue that the current criminal law regime is ineffective in addressing the problem because foreign interference is a complex and pervasive phenomenon taking many different forms — from espionage on university campuses to anonymous and targeted social media campaigns. The legislative scheme is not properly tailored to tackle foreign interference as it actually occurs.
Managing Ownership of Copyright in Research Publications to Increase the Public Benefits from Research
Producing and disseminating knowledge is core university business and a collaborative, global activity engaging multiple stakeholders including universities, researchers, governments, Indigenous communities, commercial bodies and the public. While ownership of university inventions attracts scholarly and policy attention, effective management of copyright in research outputs is also necessary to maximise the benefits of publicly funded research, but often neglected. This article explains current dynamics in academic publishing and research ownership. It seeks to explain the complex interface of copyright law, university policies, academic customary practices, Enterprise Bargaining Agreements (EBA), research funder mandates and policies, the guidelines and policies that pertain to Indigenous research, and publishing contracts. The article concludes with proposals for copyright management to maximise opportunities for greater public benefit from Australian research.