In recent weeks, a female prisoner in Queensland lost her fight to have her eggs frozen while incarcerated.

Rachel Smith is currently serving a ten-year sentence for drug trafficking. She will be between 39 and 41 years of age when she is released. Smith’s fertility will decline significantly while imprisoned.

Smith was 33 when she first applied to freeze her eggs and was prepared to fund the treatment herself. She applied to Queensland Corrective Services, the Brisbane Supreme Court and the Court of Appeal. Each application failed.

By denying her access to egg freezing, the state may have denied her the chance to have a child. This goes beyond the intended scope of criminal punishment, and should be reviewed.

Your rights depend on which state you live in

Queensland prisoners are prohibited from accessing assisted reproductive technology under the Corrective Services Act 2006.

In Smith’s case, the court ruled that the processes of extracting and freezing eggs was a form of assisted reproductive technology and therefore fell within that prohibition.

The court also justified the ban on grounds of consistency. It applied a blanket ban to ensure prisoners were treated equally and avoid correctional authorities having to make judgements about which prisoners should be permitted to have children.

The outcome may have been different had Smith been imprisoned in a different jurisdiction. In Victoria, for example, access to assisted reproductive technology is a recognised human right.

In 2010, the Supreme Court of Victoria ruled that a prisoner was entitled to access assisted reproductive technology, specifically IVF, recognising it as a legitimate medical treatment and a human right necessary for the preservation of health.

In 2024, another Victorian prisoner was granted the same right.

The welfare of children

There may be legitimate concerns about the welfare of children born to incarcerated parents. This may justify restricting access to assisted reproductive technology for prisoners, which could result in pregnancy while serving time.

The state, however, has not acted consistently on these concerns. Women have been incarcerated while pregnant, and children have been born and raised in custody.

Read more: Babies and toddlers are living with their mums in prison. We need to look after them better

But these concerns don’t apply to Smith’s case. Egg freezing does not result in pregnancy. It doesn’t result in a child being born or raised in custody. It’s a procedure that preserves the opportunity to have a baby after release.

Whatever concerns one might have about prisoners reproducing while incarcerated, none of them apply to egg freezing.

Sex discrimination

The consequences of denying access to egg freezing don’t end on release. Once someone has served their time, they’re entitled to reintegrate into society with most of their freedoms and rights restored. Whatever limits incarceration places on reproductive freedoms, those limits are presumably intended to end upon release.

However, for some, this will not be the case.

Women’s fertility declines with age. By age 30, women have around a 20% chance of falling pregnant each month. This chance drops to less than 5% by the age of 40. A woman incarcerated during her reproductive years may lose the ability to conceive before she is released.

While age also affects men’s fertility, it doesn’t typically lead to infertility. A male prisoner denied access to assisted reproductive technology will probably still be able to father children after his release.

The same denial to female prisoners is much more likely to permanently prevent them from having a biological child. A rule that produces categorically different consequences by sex warrants serious scrutiny.

The purposes of criminal punishment

While incarcerated, people lose fundamental liberties and rights, including freedom of movement, privacy and the ability to make many decisions about their daily lives.

Reproductive freedoms could be argued to fall within this category. Denying access to assisted reproductive technology for incarcerated people might reasonably be understood as consistent with the restrictions of prison life.

But there is a crucial difference between restrictions that apply within prison and harms that persist beyond it.

Some might even endorse the negative effects on prisoners’ reproductive prospects as part of the punishment itself.

The problem with this view is that, in Australia, criminal incarceration serves recognised purposes: punishment, deterrence, rehabilitation and community protection. Retribution is not on that list.

Even if we think it is right that prisoners suffer for their crimes, not all punishments are equal. Those with permanent bodily consequences have been abandoned. We no longer brand, mutilate or forcibly sterilise prisoners.

No Australian court has prescribed the loss of a person’s reproductive capacity as a legitimate sentencing objective. Nor should they accept policies that make this the default outcome.

Read more: What are prisons for? Answering that is the starting point for reform

Molly Johnston has received research funding and/or in-kind research support from Monash IVF, Public Fertility Care, Fertility Society of Australia and New Zealand, and Ferring Pharmaceuticals.

Julian Koplin has received research funding from Ferring Pharmaceuticals.

Neera Bhatia receives funding from the Australian Research Council.

If there’s one area of New Zealand foreign policy that demands delicate diplomatic language from elected officials, it is the country’s nuclear-free status.

So when Defence Minister Chris Penk suggested it “would be helpful” to have a conversation about the difference between nuclear weapons and nuclear propulsion, the response was swift.

Opposition parties questioned whether the government was planning a review of the relevant legislation, forcing Prime Minister Christopher Luxon to confirm there would be no change to the policy.

Unfortunately, the issue may not be that easy to avoid in the near future.

Penk was speaking at a security forum in Singapore and responding to a reporter’s query about what Australia’s acquisition of nuclear-powered submarines might mean for nuclear-free New Zealand.

That’s a fair question, given Australia is New Zealand’s only formal ally, and closer military relations between the two countries are central to the government’s Defence Capability Plan.

The AUKUS factor

Penk’s comments were also timed unfortunately, coming a day after United States Secretary of War Pete Hegseth suggested New Zealand was “freeloading” as an ally, and defence spending at 2% of gross domestic product (GDP) was “not enough”.

This tacit pressure comes at a time when global military expenditure has accelerated rapidly, wars and conflicts are expanding, and fears grow about a new arms race.

Hegseth is pushing for partner nations to “reach a level where 3.5% of national spending goes towards their own military”.

That reflects the recent commitment by NATO countries to invest 5% of GDP annually on defence and security by 2035 (with 3.5% on core military requirements).

New Zealand and Australia are not members, but both have partnership agreements with NATO. Australia currently spends 2.2% of its GDP on the military, and is aiming for 3% by 2033.

New Zealand aims to hit the 2% target in 2032, which would bring spending broadly in line with peacetime military budgets over the past century. Whether that will be enough, however, is a key question – especially as advances in military technology gather pace.

For example, AUKUS partners are about to begin cooperating on the first “Pillar II” initiative, the development of autonomous undersea drone systems. New Zealand is still officially weighing up Pillar II membership, although many of the practical steps required seem to be already underway, and the price of entry to this club will be expensive.

Even outside AUKUS, New Zealand faces a steep bill to replace its ageing navy frigates. While these vessels could supplement Australia’s purchase of 11 new frigates and create efficiencies in the process, it would still stretch spending well beyond the 2% of GDP target.

Undermining nuclear-free law

There’s a wider perspective needed, too. Hegseth’s criticisms must be seen in the context of his administration’s undermining of the international rules-based order central to New Zealand foreign policy.

Any suggestion by a cabinet minister – however vaguely phrased or subsequently rejected by the prime minister – that part of the nuclear free policy might be on the negotiating table becomes doubly sensitive.

The Nuclear Free Zone, Disarmament, and Arms Control Act prohibits the acquisition, testing or stationing of nuclear weapons in New Zealand. It also bans “entry into the internal waters […] by any ship whose propulsion is wholly or partly dependent on nuclear power”.

That means foreign vessels retain freedom of navigation rights, in accordance with international law, for peaceful transit through New Zealand’s territorial waters – but they can’t land.

Chipping away at part of the comprehensive anti-nuclear policy would undermine the overall purpose of the law:

to promote and encourage an active and effective contribution by New Zealand to the essential process of disarmament and international arms control.

New Zealand’s commitment to increase military spending should therefore be matched by support for initiatives that seek to reboot arms control, reduce the risk of wars being triggered accidentally and to regulate military use of artificial intelligence.

As even the major nuclear powers concede, any future war between them cannot be won. For a small power such as New Zealand, working to prevent such a catastrophe is the more important objective.

Alexander Gillespie does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

For nearly 20 years, the Commonwealth operated under the mistaken assumption that it was allowed to hold people in immigration detention indefinitely. In 2023, the High Court’s landmark ruling confirmed otherwise.

We are now about to see the fallout of those events, with the government facing potential civil liability to people who, as it turns out, were unlawfully detained.

A new High Court judgment in a case called Abdel-Hady vs the Commonwealth has left the door open for a man who was unlawfully detained to sue the government for compensation, potentially allowing hundreds of others to do the same.

How did we get here?

The legal history traces back to a 2004 High Court case. That case found that the Migration Act allows the government to detain unlawful non-citizens until they were deported, even if there was no realistic prospect of deportation (for example, if no other country would accept them).

For a person who had nowhere else to go, this effectively led to indefinite detention.

In a 2023 decision, often dubbed the NZYQ case, the High Court reopened and overruled that earlier case on constitutional grounds. The upshot was that the government had, for some time, been relying on an invalid law to detain a person where there was no foreseeable prospect of deporting them.

Without legal authority to detain, the Commonwealth faces potential liability for false imprisonment. This tort (a civil wrong) provides compensation if a person, including a government official, detains someone without lawful authority.

It is relatively clear that people held in immigration detention have been “detained” in the legal sense. Since the NZYQ case, it also seems relatively clear that this detention was unlawful if there was no realistic prospect of deportation.

What did the court find?

This is where the new decision becomes relevant.

Safwat Abdel-Hady came to Australia from Austria in 1997. He lived here on a visa until it was cancelled on character grounds in 2017, leading to his detention. He commenced proceedings in 2021 challenging the legality of his detention and seeking compensation.

Abdel-Hady has a health condition that makes it dangerous for him to fly. The Commonwealth eventually came to accept that, from at least July 2022, there was no foreseeable prospect of deporting him. He was released in 2024 after the Commonwealth consented to court orders which ruled his detention for that period had been unlawful.

This left just the civil part of Abdel-Hady’s claim unresolved. With no real dispute about whether he had been unlawfully detained, the Commonwealth asked the High Court to recognise a new type of defence that would protect the government from liability.

In essence, the government argued that if an official is carrying out their duties under a law that’s previously been found to be valid, that would be a legal defence, even if the High Court later reverses its position.

All members of the High Court gave short shrift to that argument. One of the difficulties, the court said, was that the scope of the defence was ill-conceived.

More importantly, the defence did not sit comfortably with constitutional principle. The court reiterated that it’s a fundamental principle of our legal system that the government only interferes with liberty where it has legal authority to do so.

To recognise this new defence would have essentially transformed the government’s obligation to obey the law into an immunity where the government believes (even for good reason) it is acting within its power. Three judges said this “would amount to an inversion, if not a perversion, of constitutional principle”.

Potentially hundreds of claims

In rejecting the government’s defence, the judgment opens the door for Abdel-Hady and other people in a similar position to proceed with liability claims against the government.

Reports suggest around 350 people were released in the wake of the NZYQ finding. It is unclear how many of these people were actually detained unlawfully, or how many additional people might now be able to bring a claim.

Assuming any of these people are found to have been falsely imprisoned, the scope of potential liability will depend on each person’s circumstances, including the length of their detention and its impacts on them.

Previous false imprisonment claims against government have ranged from very significant awards in the order of hundreds of thousands of dollars all the way down to nominal damages of $1 in situations where detention was inevitable.

It is also possible that the Commonwealth will seek to settle claims rather than litigate, as it has done in previous false imprisonment matters in immigration detention.

Where to from here?

The implications of the High Court overruling its previous judgment in this situation are clearly significant for the government. The High Court only rarely overturns its previous judgments, and there are very important constitutional reasons why the High Court needs the ability to do so.

For the government, the matter may be an expensive lesson on the risks inherent in passing legislation that gives wide-ranging detention powers to the executive. Later regulatory workarounds have also been challenged and struck down.

As the High Court observed in this case, it was (and remains) open to government to manage or ameliorate some of those risks through carefully crafted legislation.

The case highlights the difficult position that government officials face when seeking to enforce a law that they believe to be valid, but later turns out not to be. But as Justice Michelle Gordon observed, to excuse the government from liability in this case on grounds of unfairness would simply shift the burden from the government to the unlawfully imprisoned person.

Ellen Rock is affiliated with the New South Wales Legislative Council Delegated Legislation Committee as an independent legal adviser.

Since April 15, Victoria has been operating without meaningful political finance laws. As the days have passed, candidates have received unregulated political donations that would once have exceeded donation caps. Foreign and anonymous donations have been allowed.

For the first time in years, Victorians have had no reliable way of knowing who is funding political campaigns.

That vacuum is a serious threat to the integrity of Victoria’s democratic system. The unregulated and undisclosed flow of money into politics raises concerns about corruption, undue influence, and the creation of an unfair playing field between the political candidates who have access to wealth, and those who do not.

So it’s a welcome development this week that the Allan government appears to have finally secured a pathway to restoring some key political finance safeguards.

Just as importantly as the short-term fix, secured through the political negotiations with the cross-bench, the proposed legislation also includes a comprehensive independent post-election review of Victoria’s political finance framework.

The wild west for political donations

The current predicament began with the collapse of the previous laws, held in April to be unconstitutional by the High Court. The court found the laws fell foul of the Constitution’s implied freedom of political communication because of the preferential treatment of bodies known as “nominated entities”.

Nominated entities were organisations associated with the major political parties that could receive unregulated donations separately from those parties.

Following the High Court’s decision, the state government appeared to have been caught flat-footed. The weeks of urgent political negotiation that followed had, until now, failed to produce a replacement.

Read more: High Court takes an axe to Victoria’s political donations laws - and it will make federal MPs nervous

What’s in the new laws?

The bill that has finally been introduced into parliament restores some essential guardrails.

It reintroduces the previous 21-day disclosure obligations for donations over $1,250. There are again prohibitions on donations from foreign and anonymous donors.

The bill reinstates donation caps, but at a higher level than the previous $4,970. It is effectively $10,000 for the upcoming 2026 election. After that, it will be set at $7,500.

In an attempt to offset the advantage of incumbents, this is doubled for “new entrants”.

The bill also restores public funding. Administrative funding has been increased, with parties receiving $300,000 for the first MP elected, $100,00 for the second MP, and $55,000 for the 3rd to 45th MP.

Victoria appears to have learnt at least the immediate lesson, because the new bill removes the nominated entity arrangements that lay at the heart of the High Court’s decision. It also includes provisions requiring the major parties to pay back donations received from nominated entities.

That key elements of the regulatory vacuum have been filled – and particularly the disclosure scheme – should be welcomed.

But it’s not perfect

However, the rushed and politically driven nature of the process that has led to this bill, which allocates significant new public funding to political parties and restricts political activity, makes the legislation more of an emergency repair job than a comprehensive redesign.

Indeed, several weaknesses from the previous regime remain. Notably, the legislation still does not provide for expenditure caps, which are essential for a level playing field.

It does not resolve longstanding ambiguity about the treatment of fundraising events. It continues to allow wealthy people to spend large amounts financing their own political participation.

It doesn’t address the exceptions carved out for affiliation fees from associated entities, including organisations such as unions, think tanks and businesses. These are payments made by organisations to political parties to maintain formal relationships, such as participation and representation rights.

And on policy development funding, the bill retains distinctions between political parties and independents that raise concerns about unfair treatment.

It also introduces some new features that raise questions. There is a new provision allowing for wealthy individuals and entities to spend unrestricted amounts for the benefit of others.

There are concerns the significant expanding of public funding for administrative expenses that benefit political parties creates a potentially unconstitutional preferential treatment.

There is a newly introduced ability to set disclosure thresholds and donation caps into the future through regulation, and without full parliamentary review. The application of donation caps and bans to transactions that have already occurred raises concerns about fairness, legal certainty, and whether the rules can actually be implemented in practice.

A path forward

Political finance regulation is inherently difficult to get right. It requires elected representatives to make decisions about rules that affect their own electoral interests.

The Centre for Public Integrity has long argued that a holistic political finance framework should incorporate evidence-informed donation and expenditure caps, robust disclosure requirements and fair public funding arrangements.

However, donation and spending caps and public funding at the right level takes time. It requires looking holistically, informed by evidence about the cost of running campaigns, at a range of issues. These include how disclosure requirements, donations and spending caps, and public funding work together.

For instance, before South Australia introduced its landmark “donations ban”, the state government engaged an expert panel to inquire into these matters.

Previously, too, Victoria has recognised these challenges through independent review processes that have produced important evidence and recommendations. Some of these were relied on in the High Court challenge.

The bill’s current review clause requires a three-person expert panel to be created after the November 2026 election to examine the operation of the new laws. It says the panel cannot be dominated by politicians. It would be required to consult with stakeholders and the public, and to consider options for a comprehensive and enduring political finance framework for Victoria.

In the meantime, the Victorian government has managed to plug the worst of the gaping hole left by the High Court’s decision. Most importantly, it has restored disclosure requirements.

Other aspects of its short-term solution are questionable. But encouragingly, the government has also committed to the kind of robust independent review that longer-term reform requires.

Correction: in the table above, a zero was missing from the administrative expenditure figure in the new bill, this has now been added.

Gabrielle Appleby works as the Research Director for the Centre for Public Integrity. She has received funding from The Australian Research Council.

Joo-Cheong Tham has received funding from the Australian Research Council, the Australian Council of Trade Unions, European Trade Union Institute, International IDEA, the New South Wales Electoral Commission, the New South Wales Independent Commission Against Corruption and the Victorian Electoral Commission. He is a Director of the Centre for Public Integrity; Expert Network Member of Climate Integrity; a Fellow of the Academy of Social Sciences in Australia; and the Victorian Division Assistant Secretary (Academic Staff) of the National Tertiary Education Union.

The abrupt resignation of the National Anti-Corruption Commissioner Paul Brereton is a pivotal moment for the federal watchdog. For years, questions over the commissioner’s leadership arising from concerns about his ability to manage conflicts of interest had undermined public confidence and trust in a key Australian integrity institution.

The government has committed to a “merit-based process” to appoint the next commissioner.

But can we trust the government to do that and rebuild trust in our national anti-corruption commission? Research finds governments often abuse their power to appoint, fund and oversee integrity agencies in order to avoid serious oversight.

How do we avoid this abuse and safeguard the independence of our integrity agencies? A new report from the Centre for Public Integrity outlines three key ways to ensure these agencies are truly independent.

These reforms should guide the appointment of a new national anti-corruption commissioner.

Fundamental tensions

To do their job, integrity agencies must be independent from the government. This means they must be able to investigate and criticise governments and public officials without fear of political retaliation.

But in practice there are a few problems with this idea.

Unlike the courts and parliament, these agencies are not protected in the Constitution. Instead, they are often created by the government through an act of parliament.

This creates a foundational tension: integrity agencies are designed by government, to hold the government to account.

The government has a vested interest in these institutions being weak. Governments have been accused of establishing weak watchdogs, or deliberately “clipping the wings” of these bodies by amending laws.

There are also operational tensions. Governments can weaken integrity agencies in more subtle ways.

One way is through political appointments. In Australia, we have seen such politicisation, for instance, in appointments to the former Administrative Appeals Tribunal, ultimately leading to its abolition.

Or they might be in the form of cutting funding. This happened most recently in the current budget, with a funding cut in real terms to the Australian National Audit Office. The office had previously said that with its current funding levels, it would not be able to meet its responsibilities for performance audits.

On budget day, the joint parliamentary committee on public accounts and audit expressed its ongoing concern about the operational capability of the office given its financial position.

A new report released by the Centre for Public Integrity outlines a number of ways the independence of these agencies must be protected across three key pillars: appointments, funding and oversight.

You can’t choose your own watchdog

Our analysis shows that across the country, there is significant variation in how heads of integrity agencies are appointed. Many governments exercise broad and opaque discretion over who leads the core integrity agencies.

This creates obvious risks. If governments can appoint agency heads through opaque processes, there may be concerns — justified or not — about whether those leaders are suitably qualified or truly independent.

The controversy surrounding Brereton illustrates the stakes involved. Questions about conflicts of interest under his leadership have fuelled broader concerns about the lack of a transparent, merit-based appointment process for the role.

Our report recommends legally requiring open advertising of senior integrity positions, independent selection panels and greater parliamentary involvement in appointments.

There’s no need to wait. The government could implement such a process in the upcoming NACC appointment, instead of relying on vague platitudes of a “merit-based process”.

This proposal is similar to one that has been successfully adopted elsewhere, including for the reformed Administrative Review Tribunal.

We also recommend longer but non-renewable terms for agency heads to alleviate any pressure leaders may feel in seeking reappointment.

Handing over the purse strings

The second problem then is funding. Most Australian integrity agencies rely on governments to decide how much money they receive each year.

In practice, this means the government can place pressure on agencies by limiting their resources. Underfunded integrity agencies cannot properly investigate corruption, scrutinise spending or carry out oversight work.

Our report argues integrity agencies should have stronger protections around funding, again, drawing on models that have been successfully developed elsewhere, particularly in the ACT for their “Officers of Parliament”.

Our proposal includes separate parliamentary processes and independent funding panels that can publicly recommend appropriate funding levels. Governments would still make final budget decisions, but there would be greater transparency when they made decisions that cut agency funding.

Read more: Australia’s anti-corruption commissioner has a trust problem. He needs to change course to fix it

Genuinely independent oversight

Finally, independence does not mean integrity agencies should operate without accountability. These agencies exercise significant powers. Some can compel evidence, conduct hearings and make findings that seriously affect reputations and careers.

So oversight is essential – but that oversight must be independent. Oversight systems for integrity agencies are often poorly designed. In many jurisdictions, for instance, parliamentary oversight committees are dominated by government members.

A better system would involve parliamentary committees not dominated by government MPs, alongside independent inspectors for agencies exercising coercive powers.

The importance of such roles is underscored by the work of the NACC Inspector, in receiving and investigating complaints about the commission’s decision not to investigate Robodebt referrals.

Read more: NACC belatedly to investigate whether six Robodebt referrals engaged in ‘corrupt conduct’

Is real independence possible?

Australia has invested heavily in creating a set of core integrity agencies. Even if reluctantly, every jurisdiction across the country now has an anti-corruption agency, auditor-general and ombudsman office.

The next challenge is ensuring those institutions are sufficiently independent to do their job. Across the country, there are good designs that alleviate the operational pressures these agencies face. Adopting these designs will help secure better and more transparent funding, appointment, and oversight of core integrity agencies.

These more independent integrity agencies can in turn help safeguard the health of our democracy.

Gabrielle Appleby works as the Research Director for the Centre for Public Integrity. She has received funding from the Australian Research Council.

William Partlett is a Stephen Charles Fellow at the Centre for Public Integrity.

You’re browsing a major online marketplace for a warm winter jacket, when a sponsored listing catches your eye: a black, fleece-lined jacket, prominently priced for sale from A$18.99 each. It’s just what you want. So you click through, ready to grab a bargain.

But when you land on the page, then select a jacket from the drop down menu, the price instantly jumps to $39.99.

It turns out the $18.99 was actually for a different product – a waterproof storage bag – which was inexplicably listed along with three variants of the jacket.

This is a common strategy used by online sellers. The platform’s search algorithm displays the headline image of the jacket, but pairs it with a more attractive price of a different product.

Frustrated? You’re not alone. Across online forums such as Reddit, or deal-hunting sites such as OzBargain, shoppers have long warned others about this type of “multi-variation listing” on popular shopping websites and apps.

It’s not just wasting your time: it can be illegal.

This kind of visual bait-and-switch trick could potentially be misleading conduct under Australian Consumer Law. It may also breach the prohibition on “bait advertising”, applying to ads that promote “sale” prices on products that aren’t available, or available only in very limited quantities.

And a proposed prohibition on unfair trading practices, now before parliament, could soon give Australians even more power to complain.

Why visual tricks like these work

Academic research helps explain why this kind of design is so effective, and also such a problem.

When a price claim and a product image are presented in close proximity, consumers naturally assume that the price applies to the pictured product.

It is a “visual superiority effect” in advertising. Research has shown that visual superiority effect means consumers process images faster and more automatically than text.

When visual and textual elements conflict, consumers rely more heavily on the visual content in forming their judgements, and form less critical thoughts when it comes to the text, such as a product description.

Consumer watchdogs have warned this kind of design tactic is a type of “dark pattern”: tactics used to nudge, manipulate or trick you into spending more money than you’d planned, or provide personal data that’s not needed.

Research has shown nearly all consumers are susceptible to these manipulative tricks under the right conditions.

Is this actually misleading under Australian law?

Let’s go back to the example of the black winter jacket you clicked on thinking it was available from $18.99, only to discover that price was for a different product.

Is this visual bait-and-switch – where a lower price has been paired with a product image it does not apply to – misleading under Australian consumer law?

Yes, it probably is.

Retailers should be warned. The national consumer watchdog, the Australian Competition and Consumer Commission (ACCC), can prosecute for misleading people with eye-catching headline claims, if those are not true once you look more closely at the detail.

For instance, just over a decade ago the ACCC pursued TPG Internet in court over misleading ads, which led to a $2 million penalty. The ads had prominent headlines about attractive internet prices – with much less prominent terms qualifying the offer.

It went all the way to the High Court, which ruled that if consumers were drawn into what the judges called “the marketing web” by a misleading “dominant message”, it could be enough to be misleading under the Trade Practices Act.

Not all seemingly deceptive ads will necessarily fall within the category of misleading conduct. It can be harder to prove if the qualification to the images or pricing is revealed before the consumer adds the product to their basket.

But Australia’s laws look set to become a bit clearer on this front.

New legislation currently before federal parliament would introduce a prohibition on unfair trading practices that manipulate consumers, or “unreasonably distort” the environment in which a decision is being made to the detriment of the consumer.

That new prohibition is intended to capture “dark pattern” tactics that are “nudging or pressuring consumers into unintended actions”.

How consumer backlash and complaints can help

Research shows that when shoppers feel they have been intentionally misled, the damage to the brand’s reputation can be severe and immediate.

Price confusion doesn’t just cause frustration; it triggers a deep sense of unfairness. That unfairness can translate into action: consumers abandoning their carts, switching to competitors, and complaining to family and friends.

If you come across shopping platforms where there are consistent, manipulative bait-and-switch tactics like this being used, it may be worth asking: is it time to shop somewhere else?

Or, if you’re annoyed enough to take action, take a screenshot and contact the business.

If they don’t stop bait-and-switch sales listings, anyone can make a report to the ACCC about a false or misleading claim. Reports from customers help inform the ACCC’s education, compliance and enforcement work.

The ACCC has named misleading and manipulative pricing practices among its enforcement priorities for this financial year. Anyone selling to Australian customers should be on notice.

Jeannie Marie Paterson has previously received funding from the Australian Research Council for a project on misleading conduct.

Adrian R. Camilleri and Jessica Pallant do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.

A proposed law currently before New Zealand’s parliament would give police the power to move people on from public spaces if they are found begging, rough sleeping or otherwise causing a disturbance.

Under the Summary Offences (Move-on Orders) Amendment Bill, police would also be able to detain a person, collect their personal details, formally issue the order and serve it on them.

Recipients could even agree to have the notice served by email. It can last for up to 24 hours; and the police decide how far away the person has to move.

Breaching an order could result in a fine of up to $2,000 or three months’ imprisonment, while providing false details could attract a $500 fine.

Supporters say the bill – being considered by parliament’s Justice Select Committee and presently open to public consultation – will help police deal with disorderly behaviour and make town centres safer.

Critics argue it risks criminalising homelessness and poverty while doing little to address the underlying causes.

More than a century ago, colonial New Zealand law allowed people to be prosecuted as vagrants if they could not explain how they supported themselves.

There are uncomfortable echoes of that approach in the proposed legislation.

Like its Victorian-era predecessor, the bill reflects a view that people on society’s margins should be managed through the criminal justice system, rather than through social support.

Contradictions and carve-outs

Introducing the bill to parliament last month, Justice Minister Paul Goldsmith framed the move as part of a government commitment to “fixing the basics in law and order”. The suggestion is it fills a gap.

A closer reading of the bill, however, reveals some clear limitations.

Its definition of “rough sleeping”, for instance, expressly does not cover freedom camping. Its wording around “begging” also excludes so-called “chugging”, where people solicit donations or memberships for non-government organisations.

That creates some curious anomalies. A homeless person asking passers-by for money could potentially be moved on, but not if they were collecting donations on behalf of a charity.

The bill also exempts people who are primarily engaged in promoting “a point of view, cause or campaign”. This might mean someone protesting homelessness or poverty – even while sleeping rough or seeking donations – may be protected from a move-on order in circumstances where someone without a political message would not be.

Another point critics have seized upon is that police already have plenty of powers to draw upon if needed.

The Summary Offences Act 1981 already contains offences covering disorderly and offensive behaviour. Police can direct groups engaged in threatening or disorderly conduct to disperse and can require people to stop obstructing public rights of way, with failure to comply carrying its own penalties.

It therefore might be asked whether the Government is genuinely trying to “fix the basics” – or is simply playing politics at the expense of some of society’s most marginalised people.

More questions than answers

Weeks after being introduced, the bill has attracted unusually broad opposition. Critics range from opposition parties, homelessness advocates and Māori organisations to Auckland Council.

Both the Ministry of Justice and Attorney-General have also raised concerns, the latter concluding that provisions targeting begging and rough sleeping would place an unjustified limit on rights.

Judges, for their part, have long recognised that people experiencing housing insecurity often find themselves in the criminal justice system.

Specialist courts such as Auckland’s Court of New Beginnings and Wellington’s Court of Special Circumstances attempt to address the underlying causes that bring people before the courts and help reduce the likelihood they will return.

To those who understand the complexities of homelessness, this might well appear a more logical approach than police officers repeatedly detaining people and issuing forms.

The new detention power also carries legal implications. People detained by police have the right to legal advice, meaning officers would need to advise recipients of those rights and facilitate access to a lawyer, even where issuing a move-on order may be a relatively brief process.

Elsewhere, there are important questions about police duties towards vulnerable people. What happens, for instance, if someone is moved on and subsequently comes to harm?

And what if that person is a teenager? Here, too, the bill raises questions. Police face significant legal restrictions when dealing with young people, and in many situations powers under the Oranga Tamariki Act 1989 will be more appropriate than issuing a move-on order.

The Select Committee is due to report back on the bill by early September. Whether it is a legislative priority before November’s general election remains to be seen.

What is clear, however, is that the bill rejects a focus on homelessness as primarily a social problem and returns to the Victorian notion that homeless people are to be managed as a public nuisance through criminal justice powers.

Kris Gledhill is a member of the Executive Committee of the Criminal Bar Association and is working on a project on sentencing for the Borrin Foundation.

Stopping judges from considering “good character” references when sentencing sexual offenders – as New Zealand’s National Party has pledged to if re-elected – may sound like a niche legal reform.

But it targets a real and longstanding issue in the country’s criminal justice system – and one that has drawn renewed public attention and debate over recent months.

In the courts, character references are typically used to show a defendant has no prior history of similar offending. Lawyers may point to the absence of previous convictions and present supportive letters describing the assault as out of character.

Such evidence can be introduced by defendants convicted of – or pleading guilty to – sexual offending in a bid to reduce their sentence, alongside other mitigating discounts that judges can apply under the Sentencing Act.

National argues that its proposed reform, which comes alongside a separate petition and campaign, would lead to tougher sentences and stop offenders benefiting from their personal reputation or social standing.

Some defence lawyers, however, have argued judges already treat such evidence cautiously in serious sexual offending cases, and warn that removing it entirely could undermine the principle that courts should consider all relevant circumstances at sentencing.

In any case, the move would represent a meaningful change. But the discussion also raises wider questions about New Zealand’s sentencing framework itself – particularly when it comes to how much discretion judges are presently given.

The problems with ‘good character’ references

As Justice Minister Paul Goldsmith noted when announcing the move last month, good character references are often used to argue the offending was “the exception, not the rule”.

In sexual violence cases, this can involve employers, relatives or community figures portraying the defendant as an otherwise respectable person who made a one-off mistake.

Rape cases, particularly, illustrate the flaws in this type of reasoning. Presenting evidence of a defendant’s good character can reinforce the myth that there is a meaningful distinction between a “real rapist” and someone who has merely committed rape.

This framing also risks minimising the seriousness of sexual violence and obscuring the reality that most rapes are committed by someone known to the victim, often in private places and with little or no physical force.

Another problem is that this evidence can be deeply retraumatising for victims, who may have to watch the sentencing judge consider – and sometimes even credit – claims that the assault was less serious, or rather something more akin to a misunderstanding.

If the policy choice is between continuing to treat prior “good character” as mitigation in sexual violence cases, or scrapping it, the latter would arguably appear the sensible call.

But abolishing this single mitigating factor from the Sentencing Act – at least as it applies to sexual offences – still leaves many other issues within the legislation to address.

The case for wider reform

In another development last month, an advisory group was established to bring lived experience and leadership expertise into government decision-making around family and sexual violence prevention.

While this marks an important step, overseas experience suggests New Zealand could go much further in reforming its sentencing system.

Countries including the United States, the United Kingdom, Canada and many Australian states, for instance, use sentencing commissions to develop formal sentencing guidelines.

These bodies draw on expertise from criminology, psychology, statistics and criminal law to analyse research and sentencing data, then produce guidance on how different offences and offenders should be sentenced.

The resulting guidelines help to eliminate disparities across offences, offenders, judges, and geographic regions, while also ensuring transparency in sentencing policy. They also tend to rely more on evidence and risk-based assessment than on broad and often ambiguous factors gradually developed through court decisions.

By contrast, two-decade-old Sentencing Act appears antiquated.

Aggravating and mitigating factors referenced within the legislation are often intuitive, vague and morally framed, rather than being clearly defined or grounded in evidence.

Importantly, they also provide little meaningful guidance for how judges should apply them consistently across cases involving different levels of harm, premeditation or remorse on the part of the offender.

Leaving sentencing judges with such a high level of unguided discretion risks allowing implicit biases – which all people possess – to influence sentencing decisions.

The result is that subjective assessments about who seems dangerous, remorseful or respectable can end up driving sentencing decisions, rather than being based on consistent, evidence-based assessments of harm, proportionality and risk to public safety.

Removing “good character” mitigation in sexual violence cases may therefore be worthwhile. But if New Zealand wants a better sentencing system, much broader reform is required.

Carrie Leonetti does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

The United States is threatening to impose trade tariffs of up to 12.5% on 60 countries, including Australia, over their inaction on forced and slave labour worldwide.

On Wednesday, US trade representative Jamieson Greer said:

The failure of our most important trading partners to address the importation of goods made with forced labor is unacceptable.

Australian Prime Minister Anthony Albanese responded that a new tariff on exports to the US was “unjustified”, as Australia has “robust, comprehensive and world-leading legislation addressing forced labour and modern slavery”.

Who’s right? And are the US claims about other nations turning a blind eye to forced and slave labour – where a person is either forced to work, or even owned by someone else – actually true?

Which countries could face new tariffs

In a new report released by the US Trade Representative, 54 countries – including Australia, China, New Zealand and the United Kingdom – were found to have:

failed to impose a legal prohibition on the importation of goods produced wholly or in part with forced labour and to effectively enforce such a prohibition.

All of those countries face a proposed 12.5% tariff on their exports to the US.

Another six economies – including Canada, the European Union and Indonesia – face lower 10% tariffs. They were seen to have done more overall, but failed to effectively enforce their own laws.

Forced labour is a form of modern slavery, defined under international law as “all work or service which is exacted from any person under the threat of a penalty and for which the person has not offered himself or herself voluntarily”.

This definition is consistent with an almost century old US law, Section 307 of the US Tariff Act of 1930. It’s now being used to legally justify this latest round of tariffs.

The US has a strong history of taking legislative action against forced labour. Section 307 prohibits imports of goods mined, produced or manufactured by forced labour.

In 2022, the US also established the Uyghur Forced Labor Prevention Act, prohibiting goods being imported from China’s Xinjiang Uyghur region, where there are “credible” allegations of widespread forced labour.

‘We get one ruling, we do it a different way’

These proposed forced labour tariffs appear to be less about labour rights and more about trade.

This latest move comes after US courts blocked US President Donald Trump’s sweeping international tariffs announced over the past year. That prompted Trump to pledge: “We get one ruling, and we do it a different way.”

As former Australian ambassador to the US Joe Hockey said about the new forced labour tariff today, “America is running out of money and they need to get it from somewhere”.

These tariffs are still subject to public consultations over the next month.

While using tariffs as a way to strengthen action on forced labour is questionable, there is some substance behind the US allegations.

41,000 people in Australia alone

An estimated 50 million people around the world – and rising – are trapped in modern slavery, more than half of those in forced labour.

Australia is estimated to have more than 41,000 people working as forced labourers or other forms of modern slavery, including child marriages.

Reports to the Australian Federal Police of human trafficking have nearly doubled in the past five years.

Australia’s laws are not world leading

In 2018, Australia established its Modern Slavery Act. This law was hailed as a critical first step in acting on modern slavery.

The law requires large business to report annually on the risks of modern slavery in their operations and supply chains.

Since 2019, more 17,000 modern slavery statements from more than 27,000 businesses have been lodged on Australia’s modern slavery registry.

Yet in 2023, an independent report found:

there is no hard evidence that the Modern Slavery Act in its early years has yet caused meaningful change for people living in conditions of modern slavery.

That’s not surprising: there is no enforcement built into the law.

What more needs to be done?

If Australia does want to have “world-leading” laws – and a stronger case to argue for lower US tariffs – what needs to change?

While the Modern Slavery Act has raised awareness of the problem in Australian boardrooms, it is not improving the working conditions of supply chain workers, here at home and overseas.

So Australia needs to move quickly to strengthen that law with enforcement, and establish a forced labour import ban.

A 2023 review of the Modern Slavery Act recommended penalties for companies failing to comply with reporting requirements and the introduction of a human rights “due diligence obligation” – similar to European Union laws and emerging requirements in South Korea, Thailand and Indonesia. This sees companies working to reduce human rights harms not just in their own factories, but through their suppliers’ suppliers too.

The Albanese government partially accepted some of the 2023 report recommendations, including the need for penalties. Three years on, it’s failed to take serious action.

The Australian government should also establish a forced labour import ban, like one the EU passed two years ago, now being phased in across all 27 member states. This would stop specific goods suspected of being produced with forced labour at the border.

Whether these proposed tariffs come into force or not, this new US forced labour investigation could actually do some good.

Right now, millions of people are working in dangerous, dehumanising conditions to make goods sold in Australia and worldwide. It’s long overdue to do more to stop it.

Justine Nolan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.