Vol 37, No 3 (2021)

The literature of higher education widely notes the importance of reflection and reflective practice as a critical aspect of professional practice. This enables learners to act and think professionally by combining theory and practice. As such, many teaching and learning strategies and activities to enhance reflection have been incorporated into professional degrees. Notwithstanding the support for reflective practice, critical reflection remains a contested concept with a lack of consensus as to its definition and best practice. The frameworks chosen by higher institutions may be influenced by course context, ideology and expectations around the course/unit learning outcomes. This paper commences with a discussion of reflection and critical reflection. By examining different notions of reflection, the paper will discuss why the concept of critical reflection is important for practitioners in the 21st Century. It is advanced that critical reflection can encourage learners to better understand professional practice by linking discipline knowledge and theories to professional practice and wider insights. Whilst reflective practice is a desirable capability for law graduates, legal education in Australia largely fails to incorporate and assess critical reflective skills, as it is directed at producing a technically skilled and ideologically compliant legal workforce. The authors advance that adherence to a solely doctrinal approach to legal education is no longer justified in the 21st Century, which is characterised by profound change and uncertainty that impacts on the legal profession and society at large. Law schools have a positive role to play in the education of their students through instilling doctrinal knowledge, professional practice skills and critical thinking skills, which foster an understanding and analysis from multiple perspectives, to ensure that law graduates are able to holistically understand the reasons for changes within their profession and effectively adapt to change through informed choices. The final part of the paper outlines how critical reflection can be implemented in legal education.

Artificial intelligence is an alluring technology which companies and governments hope to benefit from. In many circumstances a condition of its use is that humans can understand an explanation of why the action of an AI system took place. This has encouraged the development of a field of “explainable artificial intelligence”, or XAI. Much of the work in this field has been encouraged by the US Defense Advanced Research Projects Agency (DARPA), through its XAI program initiated in 2016. This paper argues that an underacknowledged challenge of XAI is that unlike most traditional technology, many AI systems contain inherent uncertainty. These systems are widely described as “black boxes”, and can be described only through their behavior, a technique described in the literature as post-hoc, rather than through an understanding of their functioning. Explaining such systems is akin to explaining the functioning of the natural world, rather than explaining the functioning of a known technology. While extensive work has been undertaken to explain the behavior of black box AI systems, there are limitations to the certainty that a post-hoc method can bring. Recognizing this is an important part of understanding the limitations of post-hoc reasoning in the use of advanced AI systems. Far simpler technologies have been seen to cause significant social damage: the UK Post Office Horizon system, and the Australian federal government Robodebt program. Coming to advanced AI system examples, two recent prestigious reports on AI systems and law display an unreasoned enthusiasm for AI explainability. AI researchers should be acknowledging that many advanced AI systems remain black boxes, that post-hoc explanations of these are inferences describing how the AI system may function, not how it does function, and the application of these technologies should be managed accordingly. Otherwise, the search for explanations may simply become a reason to believe.

Human vulnerability is at the core of refugee status determination and human rights provides its regulatory frame, so to speak of artificial intelligence within the refugee context may seem troubling at least, dystopian at worst. But the rapid development of artificial intelligence in government decision-making will unlikely be slowed by such ethical quandaries. The potential integration of automation, machine learning and algorithmic decision-making into global migration regulation and policy has far-reaching implications for refugee law. The consequences for efficiency, legality, accountability, transparency and human rights warrant a timely and critical conversation about the possible impact of existing and future technologies on refugee status determination. Predictive analytics, biometrics, automated credibility assessments and algorithmic decision-making are technologies that could have utility for refugee status determination processing, credibility assessments and decision-making. Each technology is considered through a lens of ‘risk and potential’, which is measured in terms of ‘fair, efficient and effective’ refugee status determination. The opportunities that artificial intelligence offers for efficiency and effectiveness in refugee status determination are compelling. Artificial intelligence allows for faster data processing and the ability to undertake high-volume, repetitive tasks. Increased consistency and up-to-date information, a capacity to plan for workloads and predict movements and the potential to ‘design out’ existing biases, promise to deliver positive outcomes for asylum seekers. But the risks of integrating artificial intelligence in a decision-making process that is defined by human vulnerability loom large. The lack of transparency in algorithms may result in a denial of procedural fairness, and algorithmic bias continues to be a vexing issue. If refugee and human rights are denied, international protection may be compromised. Technical and contextual issues may increase the potential for error, and unanswered questions remain around legality.

Bias can result in partiality in historical accounts and confirmation bias results in statements and characterisations being accepted as factual without reliance on critical tests. This paper provides an example of how a qualitative research technique called ‘nominal group technique’ (NGT) was used in a legal history project to control bias. The observations and conclusions may have a bearing on the part that NGT could play in other areas of legal research and historical research.

Personal privacy versus public safety is a rights trade-off that has been brought into sharp focus by the COVID-19 pandemic, with flow-on implications for the success of contract tracing regimes implemented across Australia.  These contact tracing regimes depend upon the supply of accurate information by individuals, which in turn depends upon the trust that is placed in health authorities and other government officials to handle personal information with care.  A range of different laws govern the collection and use of personal information by health authorities at the federal level and in each Australian state or territory. Understanding these rules might help us to work out ways to ensure that everyone in our community feels like they can tell the truth when it matters most.  Using a case study from South Australia, this article reviews existing legislative, regulatory and policy frameworks that currently apply to the collection and use of personal information in health care and highlights the tension between creating incentives to share personal information and policing compliance with COVID-19 laws and ensuring robust legal protection for sensitive personal information.  Relevant lessons from the South Australian experience are then extrapolated for consideration by other Australian jurisdictions, with a view to identifying what safeguards and protections could be included in current legal frameworks governing the use, sharing and disclosure of personal information in health care settings to help resolve the current tension between protecting individual privacy and promoting public health.

Most commentary and, indeed, most controversy concerning class actions in Australia has concerned shareholder class actions and how they are funded. This paper consciously changes the focus of its commentary away from such debates and towards examining human rights class actions in Australia. As Australia is the only advanced country without national constitutional or statutory protections of human rights, attempts to legally protect human rights have manifested themselves indirectly in various areas of the law that might not at first glance seem to have much to do with human rights. Class actions has been one of those legal areas. Given the paucity of existing commentary on Australian human rights class actions this paper begins with an examination of the types of cases that have been bought as human rights class actions and provides examples of them. Drawing on literature concerning the effectiveness of actions undertaken to protect human rights and on class actions protecting human rights overseas, it uses publicly available information to undertake a qualitative analysis concerning the effectiveness of such litigation. After coming to some tentative conclusions about such effectiveness, it examines whether US class actions law might be a source of ideas that could be adapted to address any such limitations of effectiveness in the same way that US class actions jurisprudence was originally drawn upon by the Australian Law Reform Commission to recommend that class actions provisions be enacted in Australia. Given the relative absence of legal norms protecting human rights in Australia as well as the relative weakness of social movements seeking greater legal protection for human rights in Australia, the search by human rights advocates for ways to access courts and obtain greater legal furtherance of human rights is a task of some urgency. This paper attempts to contribute to that search as well as to advance the analysis of Australian human rights class actions and their effectiveness more generally.

The United Nations Convention on Rights of Persons with Disabilities (UNCRPD) has significantly changed the way our society views models of decision-making for adults with cognitive impairment. The formerly-accepted substitute decision-making models – where a person can legally make decisions for an individual, often guided by the ‘best interests’ principle – are considered less desirable than supported decision-making which prioritises an individual’s ‘will, preferences and rights’. However, disciplinary differences in understandings about what these concepts entail and how they should look in policy, legal and practice frameworks persist.

For many, supported decision-making is experienced through informal support for decision-making through close family, and in the absence of a legal appointment. What this support looks like and whether it can help achieve the aim of greater participation by people with intellectual disability is still being empirically examined. In addition, the circumstances when that support moves into informal substitute decision-making is largely unexplored. It is also unclear whether the reasons for such a shift mirror the legal requirements for the appointment of a formal substitute decision-maker under Australian law.

This paper uses a subset of qualitative data from interviews with parents who act as supporters to adults who have an intellectual disability. The overall aim of the study was to explore the impact of training in applying a practice framework (the La Trobe Support for Decision Making Practice Framework) about effective support for decision-making. We show that promising development is reported from the impact of capacity-building training for supporters, with evidence that the decision-making capabilities of adults with intellectual disabilities can be seen to shift over a period of time and training informal supporters can be effective in moving the dial as to when a supporter finds it necessary to step in and make a substitute decision. However, we also demonstrate that considerations of ‘risk’ and future opportunities for the supported adult are nuanced factors taken into account by supporters who shifted into a substitute decision-maker role and this is not well accounted for in our legal frameworks.