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Employment Discrimination by Algorithm: Can Anyone Be Held Accountable? 算法造成的就业歧视:任何人都可以被追究责任吗?
IF 1.3
UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL Pub Date : 2022-07-01 DOI: 10.53637/xtqy4027
Natalie Sheard
{"title":"Employment Discrimination by Algorithm: Can Anyone Be Held Accountable?","authors":"Natalie Sheard","doi":"10.53637/xtqy4027","DOIUrl":"https://doi.org/10.53637/xtqy4027","url":null,"abstract":"Accountable? Author Natalie Sheard The use by employers of Algorithmic Hiring Systems (‘AHSs’) to automate or assist with recruitment decisions is occurring in Australia without legal oversight. Regulators are yet to undertake an analysis of the legal issues posed by their use. Academic literature on this topic is limited and judicial guidance is yet to be provided. This article examines to what extent, if at all, Australian anti- discrimination laws are able to regulate the use by employers of discriminatory AHSs. First, it examines the re-emergence of blatant discrimination by digital job advertising systems. Second, it considers who, if anyone, is liable for automated discrimination. Third, it examines the law’s ability to regulate ‘proxy’ discrimination. Finally, it explores whether indirect discrimination provisions can provide redress for the disparate impact of an AHS. Australia’s anti-discrimination laws are long overdue for reform. This article concludes that new legislative provisions, as well as non- binding guidelines, specifically tailored to the use by employers of algorithmic decision systems are needed.","PeriodicalId":45951,"journal":{"name":"UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":1.3,"publicationDate":"2022-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49256856","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: 2
Legal Duties of Researchers to Protect Participants in Child Maltreatment Surveys: Advancing Legal Epidemiology 研究人员保护儿童虐待调查参与者的法律义务：推进法律流行病学
IF 1.3
UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL Pub Date : 2022-07-01 DOI: 10.53637/oakc2052
Benjamin Mathews
{"title":"Legal Duties of Researchers to Protect Participants in Child Maltreatment Surveys: Advancing Legal Epidemiology","authors":"Benjamin Mathews","doi":"10.53637/oakc2052","DOIUrl":"https://doi.org/10.53637/oakc2052","url":null,"abstract":"Legal Epidemiology Author Ben Mathews Studies of the prevalence of child maltreatment respond to a public policy imperative to better understand and prevent child abuse and neglect. These studies span domains of law, public health, and legal epidemiology. When conducting them, researchers must comply with legal duties to protect research participants. Australia has a complex legal environment, with additional challenges when participants are children, or are in danger. Duties arise in three bodies of law, vary across States and Territories, and require statutory interpretation, conceptual analysis, and operationalisation. This article conducts the first comprehensive analysis of researchers’ legal duties to protect participants in child maltreatment surveys. It contributes new understandings of the operation of mandatory reporting duties in child protection law, duties to report child abuse offences in criminal law, and the duty of care in negligence law. The analysis informs conclusions about the applicability of these duties, and indicates a legally compliant, ethically sound, and operationally practicable approach. Findings are relevant to multiple settings.","PeriodicalId":45951,"journal":{"name":"UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":1.3,"publicationDate":"2022-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48970077","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: 2
Voluntary Requests, or Vulnerable Adults? A Critique of Criminal Sentencing in Assisted Suicide and ‘Mercy Killing’ Cases 自愿请求，还是弱势成年人？论协助自杀和“安乐死”案件的刑事量刑
IF 1.3
UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL Pub Date : 2022-07-01 DOI: 10.53637/sosl1176
Katrine Del Villar, L. Willmott, B. White
{"title":"Voluntary Requests, or Vulnerable Adults? A Critique of Criminal Sentencing in Assisted Suicide and ‘Mercy Killing’ Cases","authors":"Katrine Del Villar, L. Willmott, B. White","doi":"10.53637/sosl1176","DOIUrl":"https://doi.org/10.53637/sosl1176","url":null,"abstract":"‘Mercy Killing’ Cases Author Katrine Del Villar, Lindy Willmott and Ben P White This article examines the sentencing remarks in all publicly reported Australian cases on assisted suicide and mercy killing since 1980. Themes emerging from judicial reasons for sentencing confirm that many traditional aims of sentencing – such as specific deterrence, retribution or rehabilitation – are inapposite in cases where relatives or friends act outside the law to end the suffering of a loved one. Pronounced leniency in sentencing, observed across the spectrum of cases, demonstrates a gap between the law on the books and the sentences imposed in practice. We identify inconsistent outcomes, both in charges laid and sentences imposed, which have the potential to undermine public confidence in the rule of law. We conclude that criminal law simultaneously provides both too much protection and insufficient protection for members of the community. We recommend law reform to enable judges to better distinguish between voluntary and non-voluntary assisted suicides and mercy killings.","PeriodicalId":45951,"journal":{"name":"UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":1.3,"publicationDate":"2022-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43900598","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: 1
The Unusual Place of Industry Codes of Conduct in the Regulatory Framework 行业行为准则在监管框架中的特殊地位
IF 1.3
UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL Pub Date : 2022-07-01 DOI: 10.53637/pmnv9100
A. Terry
{"title":"The Unusual Place of Industry Codes of Conduct in the Regulatory Framework","authors":"A. Terry","doi":"10.53637/pmnv9100","DOIUrl":"https://doi.org/10.53637/pmnv9100","url":null,"abstract":"The comment of Commissioner Hayne in his Final Report of the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry – that ‘industry codes … occupy an unusual place in the prescription of generally applicable norms of behaviour’ – was directed to voluntary industry codes. The term is nevertheless used indiscriminately, and industry codes inhabit each regulatory strategy – self-regulation, quasi-regulation, co-regulation and explicit government regulation. The term ‘industry code of conduct’ is not a term of art with a settled meaning and is widely used as a convenient term to describe a diverse range of industry rules –from aspirational ethical statements of industry associations with no effective coverage, content or enforcement, to legislated prescriptions in various forms which are imposed by, and attract, the full majesty of the law. This article examines the role, operation, and legal effect of industry codes under each of the regulatory strategies and proposes a more rigorous taxonomy.","PeriodicalId":45951,"journal":{"name":"UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":1.3,"publicationDate":"2022-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45999383","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
A Critique of the Counter-Terrorism (Temporary Exclusion Orders) Act 2019 (Cth) in Light of Australia’s Obligations under the United Nations Convention on the Rights of the Child 鉴于澳大利亚根据《联合国儿童权利公约》承担的义务，对《2019年反恐怖主义（临时排除令）法》（Cth）的批评
IF 1.3
UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL Pub Date : 2022-07-01 DOI: 10.53637/biqj7640
M. Couzens
{"title":"A Critique of the Counter-Terrorism (Temporary Exclusion Orders) Act 2019 (Cth) in Light of Australia’s Obligations under the United Nations Convention on the Rights of the Child","authors":"M. Couzens","doi":"10.53637/biqj7640","DOIUrl":"https://doi.org/10.53637/biqj7640","url":null,"abstract":"on the Rights of the Child Author Meda Couzens This article challenges the position of the Australian executive that the Counter-Terrorism (Temporary Exclusion Orders) Act 2019 (Cth) is compatible with the United Nations Convention on the Rights of the Child (‘CRC’). Placing the discussion in the context of Australian children detained in Kurdish camps in Northern Syria on the ground of their involvement, or their parents’ involvement, with Islamic State of Iraq and the Levant, the article contends that the Act does not permit the best interests of the child to be meaningfully taken into consideration (contrary to article 3(1) of the CRC). The article also argues that the Act has negative consequences for nationality rights and rights concerning the protection of the relationship between children and their parents (articles 7–9 and 16 of the CRC).","PeriodicalId":45951,"journal":{"name":"UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":1.3,"publicationDate":"2022-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48298858","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
Regulating Volunteer Directors’ Duties in Companies Registered with the Australian Charities and Not-for-profits Commission 规范在澳大利亚慈善和非营利委员会注册的公司志愿董事的职责
IF 1.3
UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL Pub Date : 2022-07-01 DOI: 10.53637/yths8021
Jeanne Nel de Koker
{"title":"Regulating Volunteer Directors’ Duties in Companies Registered with the Australian Charities and Not-for-profits Commission","authors":"Jeanne Nel de Koker","doi":"10.53637/yths8021","DOIUrl":"https://doi.org/10.53637/yths8021","url":null,"abstract":"Australian directors, whether volunteering or serving a commercial or charitable company, have similar legal responsibilities and exposure to personal liability for unintentional mistakes. In 1991, the Supreme Court of Victoria awarded $97 million, equivalent to almost $200 million today, against a volunteer director of a not-for- profit charitable company. More recently, the Federal Court imposed a $90,000 penalty on a former Tennis Australia director, Harold Mitchell. Should volunteer charity directors and their fee-earning corporate counterparts be subject to the same legal duties, obligations and liability exposure? This article considers the potential impact of the 2018 Australian Charities and Not-for-profits Commission (‘ACNC’) Legislation Review Recommendation 11, that the statutory directors’ duties in the Corporations Act 2001 (Cth) be turned ‘back on’ for directors of ACNC registered charitable companies, with specific reference to individual directors, charities, and the regulation of the charity sector. It cautions against regulatory changes that impose unrealistic compliance obligations and complexity that could do significant long-term damage to the sector.","PeriodicalId":45951,"journal":{"name":"UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL","volume":"1 1","pages":""},"PeriodicalIF":1.3,"publicationDate":"2022-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41592461","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: 1
Social Housing, Homelessness and Human Rights 社会住房、无家可归和人权
IF 1.3
UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL Pub Date : 2022-07-01 DOI: 10.53637/kfed5275
T. Walsh
{"title":"Social Housing, Homelessness and Human Rights","authors":"T. Walsh","doi":"10.53637/kfed5275","DOIUrl":"https://doi.org/10.53637/kfed5275","url":null,"abstract":"Social housing is reserved for the most vulnerable tenants, yet social housing tenants are subject to the same residential tenancy laws as private tenants and may even be held to a higher standard of behaviour. As a result, social housing tenants are at high risk of eviction. This article reports on the results of a mixed methods study on eviction proceedings involving social housing tenants. The study involved textual analysis of 98 published judgments and focus group research with 43 tenants’ advocates. It was found that the very factors that make someone eligible for social housing in Australia simultaneously put them at risk of eviction. This research suggests that the law provides limited protection against eviction to homelessness. Despite the importance of individuals’ interests in having a home, rights-based arguments are generally ineffective in this context.","PeriodicalId":45951,"journal":{"name":"UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":1.3,"publicationDate":"2022-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43172407","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
Of Parole and Public Emergencies: Why the Victorian Charter Override Provision Should Be Repealed 假释与公共紧急事件:为什么应该废除维多利亚宪章规定
IF 1.3
UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL Pub Date : 2022-07-01 DOI: 10.53637/tmsv9345
J. Debeljak
{"title":"Of Parole and Public Emergencies: Why the Victorian Charter Override Provision Should Be Repealed","authors":"J. Debeljak","doi":"10.53637/tmsv9345","DOIUrl":"https://doi.org/10.53637/tmsv9345","url":null,"abstract":"This article examines the override provision under the Victorian Charter. Relevantly, Parliament has used the override on two occasions regarding laws enacted to prevent parole being granted to prisoners except in extremely limited circumstances. Conversely, Parliament responded to the COVID-19 threat without resorting to temporarily suspending the Charter via an override. This article analyses the parole-setting uses of the override within the international context of the temporary suspension of rights, against the Charter mechanisms that allow for restrictions on rights, and against the principles underlying the Charter – the retention of parliamentary sovereignty and the creation of an inter-institutional dialogue about rights. These uses test the transparency of and accountability for rights-limiting decision-making, and the culture of justification the dialogue is supposed to engender. By way of contrast and conclusion, the article highlights the curiosity between the use of the override with parole legislation and the non-use of the override with COVID-19 legislation, and revisits the case to repeal the override.","PeriodicalId":45951,"journal":{"name":"UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":1.3,"publicationDate":"2022-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48456718","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
From Fact Finding to Truth Telling: An Analysis of the Changing Functions of Commonwealth Royal Commissions 从事实发现到真相陈述:英联邦皇家委员会职能变迁分析
IF 1.3
UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL Pub Date : 2022-04-21 DOI: 10.53637/blep2018
Jonathan Tjandra
{"title":"From Fact Finding to Truth Telling: An Analysis of the Changing Functions of Commonwealth Royal Commissions","authors":"Jonathan Tjandra","doi":"10.53637/blep2018","DOIUrl":"https://doi.org/10.53637/blep2018","url":null,"abstract":"Royal commissions are a tool for the executive government to inquire into matters of public importance. A new type of royal commission has emerged at the federal level as a result of the Royal Commission into Institutional Responses to Child Sexual Abuse – the truth-telling inquiry. Several more royal commissions have been established with an explicit truth-telling function. Recent legislative changes to the Royal Commissions Act 1902 (Cth) allowed for private sessions, cementing a truth-telling function in the legislative framework. The function of a truth-telling royal commission is to aid people who have suffered damage or injury in a process of reconciliation or restorative justice. In this article, I analyse the historical development of the powers and functions of Commonwealth royal commissions in statute and at common law in light of a truth-telling function. If this trend continues, truth-telling royal commissions may develop into an important symbol of reconciliation and justice.","PeriodicalId":45951,"journal":{"name":"UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":1.3,"publicationDate":"2022-04-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48059940","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
Modern Slavery and Material Justicce: The Case for Remedy and Reparation 现代奴隶制和物质正义:救济和赔偿的案例
IF 1.3
UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL Pub Date : 2022-04-21 DOI: 10.53637/llwj9285
Frances Simmons, J. Burn, Fiona Mcleod
{"title":"Modern Slavery and Material Justicce: The Case for Remedy and Reparation","authors":"Frances Simmons, J. Burn, Fiona Mcleod","doi":"10.53637/llwj9285","DOIUrl":"https://doi.org/10.53637/llwj9285","url":null,"abstract":"In all its different manifestations modern slavery involves the abuse of power and the violation of human rights. In this article, we examine whether Australia is meeting its international obligations to provide access to effective remedies to survivors of modern slavery. We argue that Australia must squarely confront the violations of human rights suffered by survivors of modern slavery by improving access to remedies, including compensation. We recommend establishing a national compensation scheme, providing survivors with greater assistance to apply for reparation orders, and improving access to support and protection. These reforms are necessary to give effect to Australia’s commitment to prevent, address and remedy the human rights abuses and enable survivors to access effective remedies.","PeriodicalId":45951,"journal":{"name":"UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":1.3,"publicationDate":"2022-04-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42375233","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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