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

✅ Legislative framework outlaws sex harrassment in workplaces

ss28 + 28B Sex Discrimination act 1984 (Cth) establishes conciliation as means of ADR

2021-22 AHRC report: 62% conciliation success rate

✅ Laws have evolved

Media exposure from four corners “inside the canberra bubble”

#MeToo movement

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

️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

Role of Unions (Silicosis) Positives

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

AWU ‘silicosis: the cutting truth’ advocates by member’s telling stories, submissions to national dust disease task force

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

✅ Awareness campaigns have led to reforms: 

WHS regulation 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 

Role of Unions (Silicosis) Negatives

⛔ Ban has come too late 

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? - ACTU Deputy Secretary Liam O’Brien (Feb 2023)

⛔ Silicosis remains a risk in other industries 

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

Sham contracting Positives

✅ 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

⛔ FWO isn’t doing enough to tackle Sham Contracting

2018/19 Budget: FWO got $9.8 million to develop sham contracting unit, but after 3 years only $812,000 had been recovered (0.1%) of FWO

⛔ Reform is needed

Scrunity and monitoring required around ABN abuse. ‘ABN Abuse: The rise of Sham Contracting’ 2018 ACTU.

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

Underpayments 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'.

✅ FWC uses ADR to efficiently resolves unfair dismissal disputes

95% are resolved via negotiation or conciliation, cheaper ($89) 
(FWC Annual Reports 2022-24)

✅ The needs of business and employees are balanced 

Underpayments Negatives

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