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.

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

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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.

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

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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.

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.

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.