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Deciphering Australia’s encryption laws: a human rights approach 解读澳大利亚加密法:一种人权途径
Australian Journal of Human Rights Pub Date : 2022-09-02 DOI: 10.1080/1323238x.2022.2157674
Kate Thresher
{"title":"Deciphering Australia’s encryption laws: a human rights approach","authors":"Kate Thresher","doi":"10.1080/1323238x.2022.2157674","DOIUrl":"https://doi.org/10.1080/1323238x.2022.2157674","url":null,"abstract":"ABSTRACT New and emerging technologies bring both challenges and opportunities for human rights and society more broadly. This article argues that governments should take a human rights focused approach in responding to the challenges posed by new technologies. Encryption provides a pertinent example of this. After demonstrating that the right to privacy applies in the digital world, this article discusses the importance of encryption in securing privacy in digital contexts. The benefits of encryption are, however, weighed against its potential misuse for crime and other malicious purposes. In an attempt to regulate this potential misuse, Australia introduced the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 (Cth). Considering new data on the operation of the legislation since its commencement, this article assesses the compatibility of the regime with Australia’s international human rights obligations with respect to the right to privacy under the International Covenant on Civil and Political Rights. In doing so, this article demonstrates that key concerns around proportionality remain, making the Assistance and Access Act unlikely to be a permissible limitation on the right to privacy.","PeriodicalId":37430,"journal":{"name":"Australian Journal of Human Rights","volume":"28 1","pages":"225 - 248"},"PeriodicalIF":0.0,"publicationDate":"2022-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42039402","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Network activity, account takeover and data disruption warrants: how novel law enforcement powers impact media freedom 网络活动、账户接管和数据破坏授权:新的执法权力如何影响媒体自由
Australian Journal of Human Rights Pub Date : 2022-09-02 DOI: 10.1080/1323238X.2022.2135258
Sarah Kendall, Dominic Frost
{"title":"Network activity, account takeover and data disruption warrants: how novel law enforcement powers impact media freedom","authors":"Sarah Kendall, Dominic Frost","doi":"10.1080/1323238X.2022.2135258","DOIUrl":"https://doi.org/10.1080/1323238X.2022.2135258","url":null,"abstract":"ABSTRACT In 2021, the Australian government enacted the Surveillance Legislation Amendment (Identify and Disrupt) Act 2021 (Cth). This Act introduced three novel law enforcement powers: the Data Disruption Warrant, the Network Activity Warrant, and the Account Takeover Warrant. This article examines how these covert powers could impact on journalists, sources and media organisations—and the implications of this for media freedom in Australia. The article finds that the warrants risk undermining media freedom and go further than previous warrants, giving law enforcement the power to access data on journalists’ computers to specifically reveal the identity of confidential sources; to access the online accounts of journalists and sources without their knowledge to collect evidence; and to modify or delete information held by journalists and sources. The article concludes by making some recommendations for reform so that the warrants pose less of a risk to independent public interest journalism.","PeriodicalId":37430,"journal":{"name":"Australian Journal of Human Rights","volume":"28 1","pages":"249 - 265"},"PeriodicalIF":0.0,"publicationDate":"2022-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48169887","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
When diplomacy is more harmful to human rights than conflict: the effects of America's deal with the Taliban 当外交对人权的危害比冲突更大时：美国与塔利班协议的影响
Australian Journal of Human Rights Pub Date : 2022-09-02 DOI: 10.1080/1323238x.2022.2135168
Shuja Jamal
{"title":"When diplomacy is more harmful to human rights than conflict: the effects of America's deal with the Taliban","authors":"Shuja Jamal","doi":"10.1080/1323238x.2022.2135168","DOIUrl":"https://doi.org/10.1080/1323238x.2022.2135168","url":null,"abstract":"ABSTRACT The US-Taliban deal of February 2020 preceded the violent return to power of the Taliban and the concomitant deterioration of human rights and development gains in Afghanistan. In this article, the author contends that the worsening situation in Afghanistan is largely the logical and inevitable consequence of this deal. The author, who is a former Afghan official involved in efforts during the negotiation and implementation of the deal, draws on his observations to argue that by excluding the preservation of human rights and development gains, the deal made it practically more difficult for the then-government of Afghanistan and its international partners to protect the fundamental rights of the people of Afghanistan. The lesson from the US-Taliban deal is that unless human rights priorities are embedded in peace diplomacy efforts, they could lead to adverse outcomes for millions of people.","PeriodicalId":37430,"journal":{"name":"Australian Journal of Human Rights","volume":"28 1","pages":"442 - 447"},"PeriodicalIF":0.0,"publicationDate":"2022-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46224081","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Pandemic restrictions and street vendors’ right to work in India: protection through a robust rule of law framework 印度的疫情限制和街头小贩的工作权：通过强有力的法治框架进行保护
Australian Journal of Human Rights Pub Date : 2022-09-02 DOI: 10.1080/1323238X.2022.2127527
Sharan Bhavnani, P. Narang, Jayana Bedi
{"title":"Pandemic restrictions and street vendors’ right to work in India: protection through a robust rule of law framework","authors":"Sharan Bhavnani, P. Narang, Jayana Bedi","doi":"10.1080/1323238X.2022.2127527","DOIUrl":"https://doi.org/10.1080/1323238X.2022.2127527","url":null,"abstract":"ABSTRACT The COVID-19 pandemic has wreaked havoc on the urban poor, particularly street vendors in India. The impact of the virus is worsened by the response of the Union and State governments. To evaluate the challenges faced by street vendors due to the pandemic, this paper seeks to: First, describe the legal architecture deployed in India to tackle the pandemic. Second, elaborate the human right to livelihood in international and domestic laws, and test domestic legislation on the principles constituting the rule of law. Third, assess the various executive orders issued by State governments under these laws on their fidelity to the principles of the rule of law. Fourth, identify the mechanisms which may bolster the rule of law in India by drawing inspiration from the best practices in other countries. Hopefully, these mechanisms, once imbibed, would protect India’s impoverished and the disadvantaged through any crises in the future.","PeriodicalId":37430,"journal":{"name":"Australian Journal of Human Rights","volume":"28 1","pages":"388 - 403"},"PeriodicalIF":0.0,"publicationDate":"2022-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49362522","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Thailand: legislative response to torture and enforced disappearances 泰国：对酷刑和强迫失踪的立法回应
Australian Journal of Human Rights Pub Date : 2022-09-02 DOI: 10.1080/1323238x.2022.2144110
N. Smith, Robert B. Smith
{"title":"Thailand: legislative response to torture and enforced disappearances","authors":"N. Smith, Robert B. Smith","doi":"10.1080/1323238x.2022.2144110","DOIUrl":"https://doi.org/10.1080/1323238x.2022.2144110","url":null,"abstract":"ABSTRACT Thailand has been a State Party to the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) since 2007 and signed the International Convention for the Protection of all Persons from Enforced Disappearance (CED) in 2012. Despite this commitment, there is evidence that Thailand has violated both CAT and CED. Thailand has been discussing draft legislation since it was lodged in the House of Representatives in 2015. A Bill to enact Thailand’s obligations under the Conventions passed its first reading on 16 September 2021 and was enacted by Parliament on 24 August 2022. These actions must be seen in the context of the unstable political environment in Thailand since early 2005. People are deprived of their rights and freedoms, especially when people express different opinions and then enter into political conflicts with the government. This article analyses Thailand’s international treaty obligations, constitutional protections and the recently enacted legislation, considering the associated political and legal issues.","PeriodicalId":37430,"journal":{"name":"Australian Journal of Human Rights","volume":"28 1","pages":"404 - 424"},"PeriodicalIF":0.0,"publicationDate":"2022-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42923405","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Re-thinking privacy in Australia in the wake of Dobbs v Jackson Women’s Health Organization 多布斯诉杰克逊妇女健康组织案后对澳大利亚隐私权的重新思考
Australian Journal of Human Rights Pub Date : 2022-09-02 DOI: 10.1080/1323238X.2022.2134289
Georgina Dimopoulos
{"title":"Re-thinking privacy in Australia in the wake of Dobbs v Jackson Women’s Health Organization","authors":"Georgina Dimopoulos","doi":"10.1080/1323238X.2022.2134289","DOIUrl":"https://doi.org/10.1080/1323238X.2022.2134289","url":null,"abstract":"ABSTRACT In June 2022, the Supreme Court of the United States overturned its decision in Roe v Wade, 410 US 113 (1973), which had established a right to abortion founded on an implied constitutional right to privacy. The decision in Dobbs v Jackson Women’s Health Organization, 597 US (2022) has sparked fervent debate about women’s reproductive rights and access to healthcare in the United States. This article presents a decisional privacy perspective on Dobbs and considers its implications for privacy rights in Australia. The concept of decisional privacy protects an individual’s ability to make decisions which contribute to defining their identity, free from the unjustifiable interference of other individuals or the state. Drawing on examples of the violation of rights of LGBTQIA+ individuals, I argue that threats to decisional privacy are alive and well in Australia; yet a failure to conceptualise and articulate them as such undermines the value of privacy both to individuals and to society. The Dobbs decision offers a prime opportunity to re-think the meaning and value of privacy in Australian law and society, not only to enrich privacy law scholarship and jurisprudence but also to enable privacy to be more robustly protected as a human right.","PeriodicalId":37430,"journal":{"name":"Australian Journal of Human Rights","volume":"28 1","pages":"425 - 434"},"PeriodicalIF":0.0,"publicationDate":"2022-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42685566","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Intelligence, oversight and the ethics of whistleblowing: the case of Witness K 情报、监督和检举的道德:证人K
Australian Journal of Human Rights Pub Date : 2022-09-02 DOI: 10.1080/1323238X.2022.2145834
Peter Gill
{"title":"Intelligence, oversight and the ethics of whistleblowing: the case of Witness K","authors":"Peter Gill","doi":"10.1080/1323238X.2022.2145834","DOIUrl":"https://doi.org/10.1080/1323238X.2022.2145834","url":null,"abstract":"ABSTRACT Official secrecy and the actions states take against so-called unauthorised disclosures by those working in intelligence agencies, referred to either as ‘whistleblowers’ or ‘leakers’, raise questions relating to both the law and ethics of security intelligence as well as the rights of officials. A recent case in Australia has brought this issue into sharp relief, but it concerns all states in which intelligence operates within a democratic framework. The ethical implications of intelligence operations demonstrate the need for the rights of officials to be better protected by their incorporation into processes of oversight.","PeriodicalId":37430,"journal":{"name":"Australian Journal of Human Rights","volume":"28 1","pages":"206 - 224"},"PeriodicalIF":0.0,"publicationDate":"2022-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47386178","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Refoulement by another means—‘constructive refoulement’ and character-based decisions under the Migration Act 1958 (Cth) 通过另一种方式重新驱逐——“结构性驱逐”和1958年《移民法》（Cth）规定的基于性格的决定
Australian Journal of Human Rights Pub Date : 2022-09-02 DOI: 10.1080/1323238X.2022.2151559
Sanmati Verma
{"title":"Refoulement by another means—‘constructive refoulement’ and character-based decisions under the Migration Act 1958 (Cth)","authors":"Sanmati Verma","doi":"10.1080/1323238X.2022.2151559","DOIUrl":"https://doi.org/10.1080/1323238X.2022.2151559","url":null,"abstract":"ABSTRACT In 2014, the Federal Government introduced significant reforms to the Migration Act 1958 (the Act) in two tranches. The first involved adaptation of Australia’s obligations under the 1951 Convention relating to the Status of Refugees into a series of codified definitions under the Act. The second suite of reforms expanded the ‘character powers’ under the Act and established a regime of mandatory visa cancellation. The interaction of the ‘protection’ and ‘character’ regimes has generated a vast amount of litigation and created a sizeable population of people deemed ‘undesirable but unreturnable’, subjected to indefinite immigration detention. This article summarises the principles emerging from superior court decisions concerning character powers and non-refoulement obligations and considers the role that the nascent concept of ‘constructive refoulement’ might play in this area. As elaborated in recent decisions of the European Court of Human Rights, ‘constructive refoulement’ refers to practices adopted by a state that compel an asylum seeker to accept repatriation. Employing the concept in character-related decision-making may compel decision-makers, and courts charged with review of decisions, to have closer regard to the prospect of indefinite detention and assess it properly as being on a continuum with forced repatriation.","PeriodicalId":37430,"journal":{"name":"Australian Journal of Human Rights","volume":"28 1","pages":"347 - 365"},"PeriodicalIF":0.0,"publicationDate":"2022-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41333680","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
James Richard Crawford AC, SC, FBA (1948–2021) James Richard Crawford AC，SC，FBA（1948–2021）
Australian Journal of Human Rights Pub Date : 2022-09-02 DOI: 10.1080/1323238x.2022.2158450
{"title":"James Richard Crawford AC, SC, FBA (1948–2021)","authors":"","doi":"10.1080/1323238x.2022.2158450","DOIUrl":"https://doi.org/10.1080/1323238x.2022.2158450","url":null,"abstract":"","PeriodicalId":37430,"journal":{"name":"Australian Journal of Human Rights","volume":"28 1","pages":"199 - 200"},"PeriodicalIF":0.0,"publicationDate":"2022-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43124274","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
The National Disability Insurance Scheme review process: weaknesses and opportunities to enhance the CRPD 国家残疾保险计划审查进程：加强《残疾人权利公约》的弱点和机会
Australian Journal of Human Rights Pub Date : 2022-09-02 DOI: 10.1080/1323238x.2022.2139882
R. Thompson
{"title":"The National Disability Insurance Scheme review process: weaknesses and opportunities to enhance the CRPD","authors":"R. Thompson","doi":"10.1080/1323238x.2022.2139882","DOIUrl":"https://doi.org/10.1080/1323238x.2022.2139882","url":null,"abstract":"ABSTRACT\u0000 The National Disability Insurance Scheme (‘NDIS’) commenced in 2013 and is designed to give effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities 2006 (‘CRPD’). Criticism of the NDIS has been widespread since the rollout, raising questions regarding compliance with the CRPD. This article specifically examines the shortcomings of the review process that persons with disabilities may encounter when they disagree with a decision made by the National Disability Insurance Agency, the body administering the NDIS, relating to their funding. It highlights inconsistencies with the CRPD article 13 ‘Access to justice’, article 12 ‘Equal recognition before the law’ and article 9 ‘Accessibility’. The reader will gain a deeper knowledge of the human rights weaknesses of the NDIS review process and how this impacts persons with disabilities. Opportunities to enhance compliance with the CPRD and start restoring confidence in the NDIS for persons with disabilities will be identified.","PeriodicalId":37430,"journal":{"name":"Australian Journal of Human Rights","volume":"28 1","pages":"266 - 285"},"PeriodicalIF":0.0,"publicationDate":"2022-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49383683","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
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