LEGAL CI points yearly

ICRC Positives

+ Impartiality and absence of political interference increase likelihood of State Acceptance

Prosecutor v Simić (2006) (ICTY)

+ Promotes and educates on International Law:

Article 9 Geneva conventions: allows for the continued activities of ICRC in conflict zones

Facilitated release of 1,000 detainees after Syrian conflict

+ ICRC emblems are protected items

Misuse is an offence under s 15 Geneva Conventions Act 1957 (Cth)

ICRC Negatives

- Mandate is limited as states ultimately dictate conflict

ICRC 2019: “humanitarian workers can put a bandage on a patient but only the state can cure the patient”

2015 Yemen conflict: over 1,000 workers deployed, yet didn’t end until 2020

- Barrier to aid: relies on state acceptance

Guardian 2016: Red cross aid convoy denied access to Syrian city of Darayya, “dashing all hopes”

ICC Positives

+ Symbolic step forward for ending impunity

Human Rights watch 2018: “whilst you don’t have certainty of a prosecution, you no longer have certainty of impunity”

+ Upholds rule of law

Heads of state are not immune (no one is above the law)

Fair trial and presumption of innnocence (Prosecutor v Lubanga (2009))

+ Rights of victims are upheld

s79 Rome Statute establishes ICC Trust Fund for Victims

Prosecutor V Lubanga 2009: 473 victims got an average of $8,000USD

ICC Negatives

- Limited enforceability: relies on state compliance

Sudanese Omar Al-Bashir is still at large, travelling freely through middle east (warrants from 2009 +2010)

- Jurisdiction is limited: States can leave ICC

Philippines Duterte withdraws after investigation on ‘war on drugs’ (2019)

- UNSC referral to interfere with force is limited

2014 Syria, China and Russia vetoed forceful intervention

Geneva Conventions Positives

+ Have evolved over time to respond to changing nature of conflict

Prisoners of WWI, 1929 listen clear rules for humane treatment, communication, medical care, later included in 1949 GC 3

+ Most signed treaty: 196 ratifciations (upholds rule of law) (known, accessible) ‘jus cogens’

+ Have influenced domestic prosecutions under ‘universal jurisdiction’

2017: Haisam Sakanh sentenced to life by swedish court

+ Australia has shown willingness to prosecute its own alleged war criminals. Oliver schulz on trial for war crimes in afghanistan

Geneva Conventions Negatives

- Widespread non - compliance with GCs

Israel v Hams (2023)

ABC News 2024: “detained palestinians subjected to waterboarding, electric shocks

Al Jazeera (2017): Saudi led air strike targeting school bus in Yemen.

- Assymetric warfare: hard for states to comply with GCs

Vietnam war 1955 -1959 Viet cong PERFIDY, US soldiers used chemical warfare and targeted civilians

MACR Positives

+ Recognises under 10 as ‘conclusive presumption’ incapable of crime:

s5 Children (criminal proceedings act 1987 NSW))

+ Recognise children mature at different rates (10-13) rebuttable

R v Greg (2023)(NSWChC): didn’t understand wrongdoing despite 72 charges

+ Upholds Australia’s requirement under CROC (1989) (Art 40) to set a MACR

MACR Negatives

- Australia’s MACR lags behind Int’l averages

Committee on rights of child recommended 14,

General comment 24: reducing harmful effects by setting appropriate MACR

- Fails to reflect biological realities

AMA: “harmful to health, wellbeing and development + preofrontal cortex is immature

- Exposes young people to harmful cycle of reoffending

AIHW: 65% of 10-13 on community based supervision reoffend within 12 months

Bail CYPs Positives

+ Successful aim to balance right to liberty while presumed innocent against the community

R v JB (2023) NSWSC Bail granted

R v LM (2023) NSWSC Bail not granted - repeated knife crime

+ Specific provisions treat CYPs differently

Bail act 2013 s74 (3)

Children can make multiple bail applications

+ Upholds CROC

s7d Remand = last resort

Bail Negatives

- Remand undermines liberty while presumed innocent

Peter Kropotkin: “prisons are universities of crime”

- Rising amount of CYPs on remand

BOCSAR 2025: 70.7% of CYPs in custody = remand

- Homeless children are getting remand

The conversation: Proffessor Katherine McFarlane: “homelessness and lack of accomodation bail refusals”

YJCs Positives

+ YJCs and other diversionary schemes avoid early contact with serious consequence

warnings, cautions, YJCs

+ High rates of participant + victim satisfaction

BOCSAR 2013: 85% of Victims + Offenders were ‘satisfied’ or ‘very satisfied’

+ Effectively achieves justice:

Australian Jewish News 2015: “Shoah lessons for bus offender” "very moved meeting holocaust survivor”

YJ Negatives

- Does not reduce recidivism in comparison to traditional court

BOCSAR 2012: 64% of YJC and 65% of court reoffend in 24 months

- YJCs are only available for certain offences

s8 Young Offenders Act 1987 (NSW)

• Summary offences

• Must plead guilty

- YJCs alone do not solve the issue, must be paired with others:

Youth on track: targets 10-17 year olds.

Sex Harrassment positives

✅ Laws are effective when enforced

Magar V Khan 2025 (FCA) $305,000 liability

2021-22 AHRC report: 62% conciliation success rate

✅ Legislative framework outlaws sex harrassment in workplaces

ss28 + 28B Sex Discrimination act 1984 (Cth)

It is unlawful for a person to sexually harass or harass on the ground of sex

Article 7 ICESCR → Safe conditions of work

✅ Laws have evolved

Use of Media

Four corners “inside the Canberra bubble” (2020)

#MeToo movement

Reform

Sex discrimination and fairwork (respect at work) amendment act 2021 (Cth)

Made clear that SH is ‘serious misconduct’ and grounds for dismissal

WHS amendment (Managing psychosocial risk) Regulation 2022 (NSW)

PCBUs have positive duty to manage psychosocial risk

SH is considered a psychosocial hazard must identify and control the risk before harm occurs.

️Sex harrassment negatives

⛔ Sexual harrassment persists

AHRC 2022 ‘time for respect’ Survey: 1 in 5 in past 12 months have experienced SH

“just another day in retail” (ANROWS 2024): retail workers say “part of the job” “routine and unavoidable”

⛔ Public accountability is low due to confidential NDAs

ACTU 2024: Only 444 cases have reached court since 1984

⛔ Reporting rates are low

AHRC 2022: Only 18% of sexual harrassment incidents reported despite 1 in 3 people in past 5 years experiencing SH

Silicosis (heavy on unions/media) Positives

✅ Unions and media have drawn attention to the failure of the WHS laws

Unions

AWU ‘silicosis: the cutting truth (2019):

• Members’ stories

• Submissions to national dust disease task force

AWU ‘silica dust kills’ (2025): “our safety standards in Australia are so shameful that even workers in Mexico have better protection from silica dust”

Media

9NEWS 2023: “Engineered stone is the asbestos of the 2020s”

✅ Awareness campaigns have led to reforms: 

SafeWork NSW fined Edstein Creative $375,000 for failing to minimise risks

WHS Amendment (silica) regulation 2020: Banned dry cutting and reduced limit of dust exposure 

WHS amendment (engineered stone) regulation 2024: Banned imports and use of engineered stone 

Silicosis (Heavy on unions/media) Negatives

Despite raising awareness, Unions lack enforceability

.

⛔ Ban has come too late 

ACTU Deputy Secretary Liam O’Brien (Feb 2023)

This ship isn’t turning around, it’s getting worse. We can’t twiddle our thumbs for the next 12 to 18 months… why wait? -

⛔ Silicosis remains a risk in other industries 

• 600,000 workers in other industries are exposed

SMH 2023: ‘the death trap beneath our city’ “at least 500 tunnelers have been exposed to unsafe levels of silica”

Sham contracting Positives

Laws Exist against sham contracting

s359 FWA
Closing loophole 2024 reforms make it harder for employers to argue defence to sham contracting

Must prove they “reasonably believed” the contract was one of services

✅ Laws are effective when enforced

FWO v Happy Cab Pty Ltd (2013) FCCA 397

in breach of s357. $238,000 fine

FWO v Dollhouse Training (2024)

Workers were shammed and felt they had “no alternative”

✅ Laws have been interpreted expansively to include ‘third party’ or ‘triangular arrangements’ 

FWO v Quest South Perth Holdings Pty Ltd (2015) FCCA 45

Misinterpretation fell ‘squarely within the scope of the mischief to which the prohibition in s 357 was directed and is caught by its terms’

Sham Contracting Negatives

⛔ Non-compliance remains widespread 

‘Explosion in Sham contracting’ (ACTU 2023) 

565,000 contractors, CAN’T subcontract work 

550,000 contractors CAN. Suggesting widespread Sham contracting

• $12,644 pay gap between genuine independent contractors and shammed workers

⛔ FWO isn’t doing enough to tackle Sham Contracting

2018/19 Budget: FWO got $9.8 million to develop sham contracting unit,

• after 3 years only $812,000 had been recovered

• (0.1%) of FWO

⛔ Reform is needed

Scrunity and monitoring required around ABN abuse.

2018 ACTU: ‘ABN Abuse: The rise of Sham Contracting’

“Significant reforms as to how the ABN system is managed are desperately needed”

Unfair dismissal Positives

✅ Laws protect against unfair dismissal

s 385 Fair Work Act: ‘A person has been unfairly dismissed if FWC is satisfied that the dismissal was 'harsh, unjust or unreasonable'.

Fair Work Amendment (Closing Loopholes) Act 2024

→ “Employee-like” workers are protected (gig economy)

Protects them from ‘unfair deactivation’

✅ FWC uses ADR to efficiently resolves unfair dismissal disputes

(FWC Annual Reports 2022-24)

• 95% are resolved via negotiation or conciliation

• cheaper ($89.17) 

2024 FWC Annual Report: 88% positive user rating based on time and fairness

✅ FWC balances needs of employees and businesses

Cheiko v IAG 2023: (tracked keystrokes) FWC found the dismissal was NOT unfair

Ensures a ‘fair go all round’ (s 381)

Unfair dismissal Negatives

⛔ Limitations on access remain
- 21 day limit to register with FWO
- High income earners above $183,100 and not on an EA must use expensive courts
Bartlett v ANZ 2016
ANZ ordered to pay $110,000 and 50% of court costs, yet not all court costs were covered

⛔ Gig economy workers have lacked protections

Deliveroo v Diego Franco 2022 (FWCFB): ruled Diego wasn’t employee and not protected, was not unfairly dismissed for ‘being too slow’

Despite FWA(Closing Loopholes) Act 2024

OnNotice 2026: Gig workers have won just 6/91 unfair deactivation decisions so far

Underpayments - STANDARD Positives

✅ Laws exist against underpayments

FWA s323: employer must pay amounts payable to an employee in relation to performance of work 
Article 7 ICESCR → “fair wages”

✅Laws are effective when enforced

Enforceable undertakings 

• FWO annual report 24/25) $358 million recovered

• Westpac 2025: Over $50million underpaid for 47,000 employees → (Self report)

Litigation

• FWO v Sushi Bay (2024) (FCA)

• $15.3 million in fines for underpaying vulnerable migrant workers

✅ Role of MEDIA/UNIONS in strengthening laws

Media

 'Price of Convenience' 2015 ABC Four Corners led to FWO inquiry into 7/11

led to Fair Work Amendment (Protecting Vulnerable Workers) Act 2017 prohibition of ‘cashback’ 

Unions

AWU v De Costi 2023 FCCA

• $60,000 penalty for underpaying $1.6 million

Fair work legislation amendment (closing loopholes) 2023

• Criminalised wage theft

Underpayments Negatives

⛔ Underpayment remains widespread 

10news 2025: Coles & Woolworths Face Class Action

• Underpayment of 30,000 Workers 

Last 3 years FWO report averaged $500M worth of underpayments

⛔ Temporary migrant workers are particularly vulnerable to exploitation

Shortchanged' report Grattan Institute 2023: 16% migrant workers are underpaid

Shortchanged report: power imbalance, threat of deportation, issues
ABC 2023: Recent migrants are 40% more likely to be underpaid than long term residents/local Australian workers

Union failures

Declining Membership: ABS 2022: Since 1992, has fallen from

• 41% to 12.5%

s481 FWA: Unions can’t enter unless they already have reasonable suspicion of a contravention

DV leave Positives

✅ 10 days paid leave entitlement helps victims escape violence

ACTU 2018

• 141 hours

• $18,000

• 7-8 attempts to escape DV

Fair Work Act 2009 (Cth) s 106A → 10 days = 240 hours

Singh v Priceline Sutherland FWC 2021: unfairly dismissed after exhausting all other leave 

✅ Unions have successfully campaigned 

ACTU “we wont wait”: over a decade of campaigning led to

2018 FWA reform: 5 days paid 

ACTU letter to FWC 2018 (asking for 10 days)

Fair Work Amendment (Paid Family and Domestic Violence Leave) Act 2022: 10 days paid 

✅ DV leave is not cost heavy 

Guardian 2017: DV leave a small cost for employers but priceless for victims:

• “Violence against women costs the economy $12.6billion lost in reduced productivity”

• “costs only 0.2% of existing payrolls”

DV leave  Negatives

⛔  Use and awareness of the new entitlement is low 

Financial Review 2024: DV leave has been law for a year. Almost no one uses it

“just 0.4% of workers used in 12 months”
ABS 2020:

• 60% women experience

• 15% use leave due to DV

⛔ Law on FDV will not solve the DV crisis alone

UTS 2025: The cost of domestic violence to women's employment,

• 60% of women experiencing DV are in employment

Unions must continue campaigning

Guardian 2017:
Violence against women costs economy $12.6 billion lost

Places pressure on small businesses

SMH 2022: Employers call for publicly funded FDV leave

Physical Safety Positives

✅ Laws regarding WHS have evolved from common law to statute law which

• Upholds right to a safe workplace: section 7 WHS ACT 2011: → Personnel must remove risks as far as reasonably practicable

• Upholds Art 7 ICESCR → “safe and healthy working conditions”

SafeWork NSW enforces laws through graded compliance measures

SafeWork EUs 2025: Over 100 Enforceable undertakings, totalling $58million dedicated to improving workplaces
Safework v Synergy scaffolding services (NSWDC) (2022)

• After killing 18 year old Christopher Cassiniti, Safework enforced with record $2 million fine

✅ Workplace fatalities have decreased:
Safework australia 2025: 24% decrease in fatalities since 2014.

Physical Safety Negatives

⛔ Desire for efficiency leads to unsafe business practices 

The guardian 2016: Stop all time wasting!

• Woolworths pickers enforced to have 100% efficiency

• Worker over 60 was pushed to efficiency, until he was injured. 

⛔ Workplace fatalities persist: 

- Safework australia 2025: over past 5 years australia averaged 191 workplace deaths 

L and Non legal

Underpayments:

SH:

Silicosis:

Rights and responsiblities

Underpayments 

SH

physical

Compliance non compliance

Underpayments

SH

Physical

Changing values and ethical standards

Underpayments

Sh

DV leave

Law reform

Underpayments

SH

DV leave

encouraging cooperation and resolving conflict

Underpayments - role of FWO

Unfair dismissal

SH

Industrial relations framework

Underpayments

Unfair dismissal

SH

ADR

Underpayments

Unfair dismissal 

SH 

Role of legal system regulating

Underpayments

Physical

SH - AHRC

Courts and tribunals

Underpayments

Sham contracting

Unfair dismissal

Gov organisations

underpayments

Physical 

Unfair dismissal

Media

underpayments

silicosis

SH

Unions

Underpayments

Silcosis

DV leave

non legal only 

underpayments 

silicosis

DV leave

Safety

Physical

SH

Silicosis

Underpayments Legislation

s323 an employer must pay an employee amounts payable for performance of work

Article 7 ICESCR: Just and favourable

Unfair Dismissal legislation

s385 FWO deems it to be harsh unjust or unfair 

ILO C158: termination of employment shall not be without valid reason

SH Legislation

s28A + 28b SDA 1984: conciliation

ILO C190

Physical Safety legislation

section 7 WHS act 2011: all that is reasonably practiceable

ILO C155

Silicosis Legislation

reforms to WHS act 

ILO C155

DV leave legislation

NES (national employment standard) = 10 days paid

Article 7 ICESCR

Sham contracting legislation

s357 FWA: misrepresent an employee contract as a contractor one

Parental Leave Positives

Laws have evolved
Unpaid

Maternity Leave Test Case (1979) → establishes 52 weeks unpaid, prior to this, termination was the ‘inevitable consequence of motherhood’

s70 FWA 2009 enshrines up to 2 years’ unpaid for both mothers and fathers

PAID

PPL Amendment (Improvement for Families and Gender Equality) Act 2023 (Cth)

18 weeks → 26 weeks (2026)

each parent must use at least 2 weeks (‘use it or lose it’)

Laws are effective when enforced

FWO Enforceable Undertaking against Guardian Early Learning Centre (2013)

While full time manger took unpaid ppl, another worker took her position

FWO = $16,000 compensation

Upholds International law

ILO C183 (Maternity protection convention)(art 8) → Protection from dismissal

s84 FWA = Right to work guarrantee

Parental Leave Negatives

PPL Reforms did not go far enough, Australia lags behid OECD

Australia = 26 weeks

OECD Average = 60 weeks

Discrimination against working mothers post-parental leave persists

2014 AHRC Report:

• 1 in 2 experience some form of pregnancy related discrimination

2024 National Review: 43% receive less opportunity for career progression