1.1.1.1 Report of the Working Group on the Universal Periodic Review—Australia

The Report of the Working Group on the UPR for Australia was handed down during the 47th session of the Human Rights Council. The Review was facilitated by Italy, the Marshall Islands and Senegal.¹⁰ General comments noted Australia’s ‘proactive approach to human rights domestically’¹¹ since the last UPR in 2015, specifically the ratification of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the implementation of the National Agreement on Closing the Gap and the legalisation of same-sex marriage.¹² However, it was also observed that Australia still faces issues relating to human rights, most notably relating to the ‘mistreatment of vulnerable people in institutional settings and challenges faced in improving the lives of Indigenous Australians’.¹³

Australia was commended for its response to the COVID-19 pandemic, success as a multicultural society and actions taken to address domestic violence.¹⁴ Despite the strong protections of civil and political rights noted in the UPR, it was observed that efforts still need to be made to address racism and discrimination against Indigenous Australians and other minority groups.¹⁵

A total of 122 delegations made 344 specific comments relating to Australia’s human rights record. A brief summary of the most popular recommendations are as follows:¹⁶

1. Australia should sign and/or ratify the following international human rights instruments:

   1. International Convention for the Protection of All Persons from Enforced Disappearance;

   2. Optional Protocol to the Convention on the Rights of the Child;

   3. Convention on Migrant Workers;

   4. Optional Protocol to the International Covenant on Economic, Social and Cultural Rights; and

   5. the ILO Indigenous and Tribal Peoples Convention.

2. Australia should withdraw its reservations to the Convention on the Rights of the Child (requiring children to be detained separately to adults and raising the age of criminal responsibility).

3. The Australian Government should provide greater support for the Australian Human Rights Commission and steps should be taken to ensure greater integration of human rights commitments into domestic law, including the implementation of a domestic Human Rights Act at the federal level.

4. Necessary steps should be taken in order to combat racial discrimination and ensure the protection of the rights of vulnerable people and minorities.

5. Australia should take measures to ensure its target contribution of 0.7% of GDP to official development assistance is met.

6. Additional policies regarding climate change should be implemented.

7. Laws and policies relating to incarceration should be reformed. This includes areas such as violence in prisons and mandatory minimum sentences, as well as ensuring access to mental support services for prisoners with disabilities, as well as all prisoners generally. There was significant support for an increase in the age of criminal responsibility, with the consensus being to 14 years of age. Comments were also made that the disproportionate representation of Indigenous Australians in the prison system should be addressed, and that allegations of war crimes within the Australian Defence Force should be thoroughly investigated.

8. Policies should be strengthened to attempt to eliminate gender-based violence, the gender pay gap and discrimination against women.

9. A national plan to protect the rights of children should be developed to provide better access to childhood services (including mental health services), increased school funding and inclusive education for children with disabilities.

10. Discriminatory practices against people with disabilities should be eliminated, noting especially unjustified medical procedures (including forced sterilisation) and better access to resources relating to the justice system.

11. Action to recognise and promote the human rights of Indigenous Australians should continue to occur. This includes steps to address housing needs, access to quality education, meaningful political participation and access to health services.

12. Efforts to improve the human rights of migrants should be strengthened. The comments noted particularly the processing of asylum seekers, observing that families should not be separated and that children should not be kept in immigration detention centres. It was also suggested that the non-refoulement principle (under which Australia could not send asylum seekers back to a country where they would be subject to harm) should be guaranteed.

13. Protections relating to free speech of journalists and whistle-blowers should be increased.

14. Additional frameworks should be implemented to prevent human trafficking and modern slavery, including increased cooperation with regional neighbours.

15. Laws relating to counter-terrorism should be reviewed to ensure they are in compliance with international human rights obligations.

The UPR concluded with five voluntary commitments made by the Australian Government to address Australia’s human rights record. These were:¹⁷

1. Implement a new national disability strategy for 2021–2030. This will act as the primary mechanism by which Australia will implements its obligations under the Convention on the Rights of Persons with Disabilities.

2. Continue to support older Australians to live in their own homes, including greater access to home-based aged care services.

3. Develop a new national plan to reduce violence against women and children, building on the Fourth Action Plan of the National Plan to Reduce Violence Against Women and Children 2010–2022.

4. Commit to work in partnership with Aboriginal and Torres Strait Islander Australians on decisions that impact them, with an emphasis on Indigenous voice and partnering with Indigenous community organisations.

5. Commit to work towards a referendum recognising Australian and Torres Strait Islander Australians in the Constitution, to be held when the referendum has the best chance of succeeding.

1.1.1.2 Addendum to the Report of the Working Group on the Universal Periodic Review—Australia: Views on Conclusions and/or Recommendations, Voluntary Commitments and Replies Presented by the State under Review

Australia provided a response to the conclusions and recommendations provided in the UPR in the form of an addendum. It was noted by Australia that a number of recommendations in the UPR were highly aspirational, and that the federal government shares the responsibility of implementing the recommendations with the states and territories.¹⁸ This addendum covered the following topics and recommendations:¹⁹

1. International instruments: Australia committed to ratifying the 2014 ILO Protocol to the Forced Labour Convention, and will consider ratification of the International Convention for the Protection of All Persons from Enforced Disappearance.

2. International engagement: Australia considers its current $4bn development assistance program budget to be proportionate and sustainable.

3. Domestic frameworks: Australia considers the Australian Human Rights Commission to be adequately resourced, and the current network of anti-discrimination legislation to be sufficient. There is no intention to introduce any bill of rights at the federal level or to consolidate existing anti-discrimination legislation.

4. Indigenous Australians: The commitment to co-designing an Indigenous ‘voice’ to Parliament was discussed in addition to the implementation of the new Closing the Gap Agreement.

5. Racism: Australia committed to preventing racism and race-based discrimination.

6. Older Australians: The Addendum noted the establishment of the Royal Commission into Aged Care Quality and Safety.

7. Sexual orientation, gender identity and intersex status: The Addendum noted the requirement for authorisation from a court or guardianship tribunal if a person is a child or otherwise unable to consent to non- therapeutic procedures.

8. Climate change: The Addendum restated Australia’s commitment to meeting the goals of the Paris Agreement and working with vulnerable communities to create local solutions to natural disasters and extreme weather events.

9. Rights of women: Australia’s National Plan to Reduce Violence against Women and Children was noted, as well as the target of a 50% reduction in violence against Indigenous women as contained in the Closing the Gap Framework.

10. Rights of children: It was noted that the minimum age of criminal responsibility is partially the responsibility of states and territories, although some states and territories have announced an intention to raise this minimum age. Australia considers that its obligations under the Convention on the Rights of the Child have been adequately implemented into domestic law.

11. Rights of persons with disabilities: It was noted that the National Disability Strategy exists, and that the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability was currently in progress.

12. Modern slavery, human trafficking and business and human rights: Australia’s National Action Plan to Combat Modern Slavery 2020–25 will aim to prevent and prosecute modern slavery practices.

13. Migrants, refugees and asylum seekers: The Addendum states that immigration detention is an ‘essential component’²⁰ of border management, but is (along with the immigration detention of children) a last resort. Australia maintains that the current system is consistent with non-refoulement obligations.

14. Civil and political rights: Australia is committed to protecting free speech and freedom of opinion, and specifies that legislation should not infringe upon these freedoms unless it expresses a clear intention to do so. However, it was noted that the freedom to publish is subject to laws on defamation, criminal offences, the right to a fair trial and national security. Australia is satisfied that its temporary suspension of the right to vote for persons serving a sentence of at least three years is reasonable, proportionate and non-discriminatory.

15. Freedom of religion: Mention was made of the Religious Discrimination Bill, and the prohibition on discrimination on the basis of religion at the federal level.

16. Criminal justice and counter-terrorism: Australia considers that the current national security laws contain ‘appropriate safeguards and protections’²¹ to protect against human rights abuses such as arbitrary deprivation of liberty and the right to privacy.

17. Economic, social and cultural rights: Australia is concerned by the disproportionate impact on vulnerable groups of the COVID-19 pandemic, and states that it is monitoring and responding to issues as they arise.

18. International humanitarian law: Regarding the ADF’s alleged war crimes in Afghanistan, the Australian government has created the Inspector General of the Australian Defence Force Afghanistan Inquiry. Any relevant matters arising from the findings of this inquiry will be referred to the Commonwealth Director of Public Prosecutions.

Australia’s response to the UPR made mention of China’s recommendation relating to the use of false information to make ‘baseless accusations against other countries for political purposes’²² and did not respond to this comment as it did not consider it to be within the scope of the UPR.²³

1.1.2.1 Written Statement Submitted by Jubilee Campaign, a Nongovernmental Organization in Special Consultative Status (A/HRC/46/NGO/52): China’s Genocide of Uyghurs and Other Ethnic and Religious Minorities in Xinjiang Uighur Autonomous Region, China²⁴

The Jubilee Campaign statement alleges that China’s persecution of Uyghurs and other Muslim minorities in the Xinjiang Uyghur Autonomous Region of China (Xinjiang), also known as East Turkestan, has met the internationally recognised definition of genocide. The statement refers to responses by Australia, the United States of America, Canada, and the United Kingdom, and concludes by providing three urgent recommendations to be implemented by the United Nations to address these humanitarian concerns.

The factual circumstances said to indicate that China’s conduct amounts to a genocide include: arbitrary detention, enforced disappearance, physical torture, forced re-indoctrination, sterilisation, forced abortion, infanticide and more. Whilst China has reportedly claimed that this is ‘fake news’ and consists of ‘groundless accusations’, comprehensive investigations by human rights and religious freedom organisations confirm the existence of such a genocidal campaign.

According to the statement, the responses from Australia and other states to the alleged genocide are as follows.

Australia: The Australian Strategic Policy Institute (‘ASPI’) 2020 Report titled: Uyghurs for Sale, and its Xingjiang Data Project identified that China was indeed engaging in ‘cultural genocide’. ASPI is a think tank founded by the Australian government and partially funded by the Australian Department of Defense. Chinese foreign ministry spokesperson Hua Chuying has claimed the APSI and Australian Government are disseminating ‘anti-China’ ‘fabrications’.

The US: The US Secretary of State, Michael Pompeo made a public statement on 19 January 2021, claiming that the persecution of the Uyghurs and other minorities as not only a genocide, but also amounting to crimes against humanity. The US was the first nation to formally and officially describe the conduct as containing both genocidal acts and intent.

Canada: The Canadian Parliamentary Subcommittee on International Human Rights conducted a series of meetings in October 2020 to discuss and hear testimonies from scholars, civil parties and survivors of the persecution in Xinjiang. The Subcommittee condemned the persecution, and stated that it was persuaded that ‘the actions of the Chinese Communist Party constitute genocide’ according to the definition contained in the Convention on the Prevention and Punishment of the Crime of Genocide.

UK: The UK Parliament has been debating an amendment to the Trade Bill, which states that trade agreements would be ‘revoked if the High Court of England and Wales makes a preliminary determination that they should be revoked on the ground that another signatory to the relevant agreement has committed genocide under Article II of the United Nations Convention on the Prevention and Punishment of the Crime of Genocide …’.²⁵ The House of Lords finally consented to this provision on 22 March 2021, and it now waits Royal Assent to be made into law.²⁶

Recommendations

Jubilee Campaign urges members and observer states of the Human Rights Council to:

1. Similarly designate the Chinese government’s persecution of Uyghurs and other Turkic Muslims as genocide and crimes against humanity, and publicly condemn this genocidal campaign;

2. Establish an impartial and independent United Nations mechanism to closely monitor, analyse, and report on the human rights situation in China, particularly in the Xinjiang Uyghur Autonomous Region;

3. Urge China to allow United Nations independent experts free and unfettered access to the Xinjiang Uyghur Autonomous Region and other affected regions to investigate the crimes against humanity.

1.1.3.1 George v Australia; Marshall v Australia; Zeenat v Australia

Request for Interim Measures by the Committee under Rule 92 of the Committee’s Rules of Procedure, concerning communication No 3915/2021

United Nations Human Rights Committee

Human Rights—Discrimination—Freedom of movement—Freedom to return to country of nationality—COVID-19 pandemic—

Procedure—Exhaustion of domestic remedies—Interim measures

United Nations Human Rights Committee

1.1.4.1 Sherlock v Australia

Views adopted by the Committee under article 5 of the Optional Protocol, concerning communication No. 20/2014

United Nations Committee on the Rights of Persons with Disabilities

Human rights—Discrimination—Freedom of movement—Freedom to choose one’s own residence—Access to a work visa

Procedure—Jurisdiction

1.2.1.1 Background and Extradition Trial

Julian Assange, an Australian citizen, was indicted in the United States of America (‘USA’) on eighteen counts in connection with his conduct as a founder and operator of Wikileaks. In July 2020, the USA requested the United Kingdom (‘UK’) extradite Assange pursuant to the UK-US Extradition Treaty as incorporated in the Extradition Act 2003 (UK) (‘EA’) for the purpose of standing trial.¹⁰⁷ The USA allegations pertained to Assange obtaining and disclosing materials relating to the defence and national security of the USA, primarily in relation to Wikileaks 2009 and 2010 disclosures.¹⁰⁸ These disclosures included, among many others, classified footage of the 2007 Baghdad airstrike which revealed that approximately a dozen civilians were mistakenly gunned down by United States forces. The USA summarised the charges as being complicit in attempts ‘to obtain databases of classified information’, making attempts to obtain such information ‘through computer hacking’, and publishing ‘classified documents that contained the un-redacted names of innocent people’.¹⁰⁹

This case concerned an appeal by the USA of the decision of the District Judge Baraitser (‘the trial judge’) not to extradite Assange because, in light of his mental condition and the conditions he would likely face following extradition, to do so would have been oppressive within the meaning of s 91 of EA and therefore barred by it.¹¹⁰ Section 91 provides that if the Court is satisfied that the ‘physical or mental condition’ of a person is such that extradition would be unjust or oppressive, the Court ‘must order the person’s discharge’ or ‘adjourn the extradition hearing until it appears’ that it would no longer be unjust or oppressive to extradite them.¹¹¹

The trial judge’s finding that s 91 was satisfied was predicated on evidence establishing that Assange suffered from clinical depressive and anxiety disorders, post-traumatic stress disorder, autism spectrum disorder, and suicidal ideation.¹¹² Accordingly, there was a real and substantial risk of suicide if extradition ensued.¹¹³ Emphasis was placed on the likelihood Assange would be held at Alexandria Detention Centre in Virginia (‘ADC’), where he would be subjected to ‘restrictive special administrative measures’ (‘SAMs’) including conditions of near complete isolation;¹¹⁴ and if convicted was likely to be detained at the Administrative Maximum-Security prison (‘ADX’) located in Florence, Colorado, where inmates are confined to their 7 square metre cells for 23 hours a day.¹¹⁵ Her Honour considered the criteria set out in Turner v United States,¹¹⁶ concluding s 91 was satisfied, despite observing that oppression under s 91 is a high bar and that there is a strong public interest rationale for giving effect to treaty obligations.¹¹⁷ Pursuant to s 105 of the EA,¹¹⁸ the USA appealed the decision on five grounds.

1.2.1.2 Decision

1.3.1.1 Factual Background

On 26 June 2019, the Shayna Jack (the ‘Athlete’) underwent an out-of-competition doping control test and returned a positive result for an Adverse Analytical Finding for Di-Hydroxy LGD-4033, a metabolite of Ligandrol.¹⁵⁰ Ligandrol is always prohibited as per the 2019 World Anti-Doping Code—International Standard—Prohibited List. On the 12 July 2019, Swimming Australia imposed a mandatory Provisional Suspension on the Athlete in accordance with Article 7.9.1 of the Swimming Australia Limited Anti-Doping Policy 2015.¹⁵¹

On 7 November 2019, the Anti-Doping Rule Violation Panel determined it was satisfied that the Athlete had possibly committed an Anti-Doping Rule Violation (‘ADRV’).¹⁵² On 19 December 2019, the Anti-Doping Rule Violation Panel of Swimming Australia confirmed the Panel’s preliminary finding. As a result of the ADRV, a four-year period of ineligibility was imposed on the Athlete commencing from 12 July 2019 (the date the original Provisional Suspension was issued).

On 2 January 2020, the Athlete submitted an application to the Court of Arbitration for Sport Oceania (the ‘CASO’) challenging the determination which imposed a four-year period of ineligibility. She initially sought a determination that the Code of Sports should determine that she bears no fault or negligence and eliminate her period of ineligibility. She amended the relief sought in her Submissions in Reply filed on 24 August 2020, acknowledging that she had failed to prove the source of the Prohibited Substance, but nevertheless maintaining that the ADRV was unintentional and was not a result of her recklessness.¹⁵³ She sought a determination that she had provided all available and sufficient evidence to this end, sought a finding of No Significant Fault or Negligence under clause 10.5 of the Swimming Australia Limited Anti-Doping Policy. The Athlete also sought for the Period of Ineligibility to be reduced to 2 years.¹⁵⁴

The hearing proceeded on 15 and 28 December 2020 at the CAS Oceania Registry, Sydney under a Sole Arbitrator.¹⁵⁵ The appeal filed by the Athlete was partly upheld.¹⁵⁶ The Sole Arbitrator determined that the Athlete had not discharged the onus necessary to place her case within the ambit of either Article 10.4 or 10.5 of the Policy; thus, the sanction imposed upon her could not be any less than a two-year period of ineligibility. To rely on Article 10.4 or 10.5, the Athlete would have had to establish how the Ligandrol entered her system. It followed that the critical issue in the proceeding was whether the Athlete had discharged the burden of proving that the ADRV was neither intentional nor the result of her own recklessness.

The Sole Arbitrator determined that the Athlete had proven the ADRV was not intentional, and her period of ineligibility was reduced to 2 years commencing from 12 July 2019. In coming to its decision, the Sole Arbitrator considered the Athlete’s own evidence, her prior diligence in observing advised protocols, a lack of obvious incentive on the Athlete’s part to achieve better results, the steps she had taken at personal expense to identify the origin of the Prohibited Substance, character evidence by individuals on behalf of the Athlete, and the absence of evidence of long-term use. The Sole Arbitrator also noted that there were limited scientific studies regarding the effects of taking Ligandrol on athletic performance, particularly for female athletes, which therefore could not be used to support the contention that the Athlete had intentionally taken the prohibited substance.¹⁵⁷

1.3.1.2 Jurisdiction

Article 13.2 and of the Policy provides that a ‘a decision imposing Consequences or not imposing Consequences for an anti-doping rule violation’ may under article 13.2.1, in cases involving International-Level Athletes, be appealed exclusively to the Appeals Division of CAS.

1.3.1.3 Issues at Appeal

On 7 December 2020, SIA and WADA filed separate Statements of Appeals against the Appealed Decision. SIA was the principal Appellant and was joined by WADA as the second active Appellant; both seeking relief to reinstate the Athlete’s four-year period of ineligibility.

The Sole Arbitrator found that the Athlete did not discharge the onus placed upon her to bring a case under Article 10.4 or 10.5 of the Policy by establishing how Ligandrol entered her system. Therefore, the critical issue became whether the Athlete had discharged the burden of showing that the ADRV was not intentional or the result of recklessness. To have the default sanction of a four-year period of ineligibility reduced to two years, the Athlete had to ‘pass through the narrowest of corridors’ by discharging the burden of proving an absence of intention to cheat or recklessness, while not proving the source of the prohibited substance.

WADA and SIA challenged the Appealed decision, arguing that the Sole Arbitrator had relied excessively on evidence of the Athlete’s credibility, resulting in a decision that was based on speculative rather than actual evidence. WADA, speaking as the international authority for the curtailment of doping, acknowledged that the Policy does not explicitly require proof of the source or origin of the prohibited substance, but insisted that failure on the part of an athlete to prove the source should present a significant obstacle to the success of their case.

The Athlete disagreed with WADA and SIA’s contention that the sole arbitrator’s reliance on her evidence of a previous clean record, her attempts at her own expense to discover the source of the prohibited substance, and character evidence was erroneous. She sought a confirmation of the Appealed Decision.

The Athlete bore the burden of proof to demonstrate that her violation was neither intentional nor reckless.¹⁵⁸ The major issues for the court were whether the burden of proof for the Athlete was higher than a ‘balance of probabilities’ and the nature of the evidence that the Athlete could adduce to prove it.

1.3.1.4 Discussion

The Panel referred to previous ADRV cases to determine the appropriate rules regarding evidence and burden of proof. They referred to the reasoning of the Panel in Abdelrahman (CAS 2017/A/5016 & 5036), which concluded that ‘the establishment of the source of the prohibited substance in an athlete’s sample is not mandated in order to prove an absence of intent’.¹⁵⁹ The Panel in Abdelrahman could ‘envisage the possibility’ where it could be persuaded by an athlete’s assertion of a lack of intent to commit an ADRV, supported by the surrounding circumstances of the case, without the athlete proving the source of the prohibited substance. Nevertheless ‘such a situation may inevitably be extremely rare’¹⁶⁰ because if an athlete cannot prove the source of the prohibited substance, ‘it leaves the narrowest of corridors through which such athlete must pass to discharge the burden which lies upon him’.¹⁶¹

Even if an athlete is not required to demonstrate the source of the prohibited substance, the burden of proof to show a lack of intention or recklessness is nevertheless very high. While the Panel in Jamnicky (CAS 2019/A/6443) had considered a number of possible ‘pathways’ which might have brought the Athlete into contact with the prohibited substance, in order to disprove that the Athlete did so intentionally or recklessly.¹⁶² However the Panel in Iannone (CAS 2020/A/6978) emphasised that athletes could not rely on ‘simple protestations of innocence’ or ‘mere speculation’ as to how they came into contact with a prohibited substance in order to substantiate a lack of intention— athletes must adduce ‘concrete and persuasive evidence’ which establishes ‘on the balance of probabilities’ a lack of intent.¹⁶³

The Panel determined that the Appealed Decision was not in accordance with the Policy.¹⁶⁴ The Sole Arbitrator’s finding that the Athlete had discharged the burden of proving that she had not intentionally or recklessly ingested Ligandrol was based largely on her own personal evidence of an aversion to cheating and a lack of prior history of ingesting prohibited substances, character evidence, and the lack of sufficient scientific evidence to show any long-term benefits of Ligandrol to the athlete or substantiate long-term use.¹⁶⁵ The Court acknowledged that, while jurisprudence in this area appeared to be unsettled at present, the Appealed Decision nevertheless failed to come to a decision on the basis of evidence beyond mere speculation and subjective evidence of character and conscience by the Athlete.¹⁶⁶

1.3.1.5 Judgment

The court concluded that the correct test for the burden of proof on the athlete was that on the balance of probabilities there was no intent or recklessness.¹⁶⁷ Proving the source of the prohibited substance is often important but is not indispensable to disproving intent or recklessness.

The court recognised that while the relevant rules are inflexible in principle, the wide variety of circumstances surrounding cases of ADRV and the different consequences means that jurisprudence has not yet yielded specific criteria which can be applied to all cases to determine whether an athlete should be sanctioned.¹⁶⁸ While the Court will not give weight to uncorroborated assertions of good character by the Athlete or persons close to them; character references and evidence of an athlete’s past conduct and attitude toward anti-doping regulations are relevant evidence.¹⁶⁹

After reviewing the objective evidence of the Athlete’s achievements and prospects, as well as the subjective evidence regarding character and the Athlete’s attitude toward anti-doping policy, the court concluded that it appeared more likely that she came into contact with the prohibited substance innocently than intentionally or recklessly.¹⁷⁰

1.3.1.6 Result

A majority of the Panel found that Athlete had on the balance of probabilities proven she did not intentionally or recklessly consume the prohibited substance. The appeals filed by Sport Integrity Australia and World Anti-Doping Agency against Shayna Jack and Swimming Australia Limited was dismissed. The Athlete’s Period of Ineligibility of two years, commencing on 12 July 2019 is confirmed.

1.4.1.1 The 2021 GGE Consensus

The 2021 GGE Report begins by outlining existing and emerging threats to international security. The GGE observe trends such as the growing militarisation of ICTs,¹⁷⁹ the proliferation of more complex ICT operations such as covert information campaigns to exert influence,¹⁸⁰ increasingly harmful attacks on critical infrastructure,¹⁸¹ and the difficulty of attribution in cyberspace.¹⁸² It is in view of these and other threats which leads the group to reaffirm the need for both non-binding norms and international law in this area to prevent conflict and contribute to the peaceful use of ICTs.¹⁸³ In relation to non-binding norms, the 2021 GGE Report expands on the content of each of the eleven norms identified in its 2015 predecessor.¹⁸⁴

The GGE reaffirmed the applicability of fundamental principles of international law to cyberspace, such as certain customary principles found within the United Nations Charter and the prohibition on the use of force and the principle of non-intervention.¹⁸⁵ The group then went on to build on the 2015 GGE Report by introducing seven new developments, including:¹⁸⁶

• (a) That States who are a party to an international dispute shall first seek a solution by such means as described in Article 33 of the United Nations Charter;

• (b) Reaffirming the applicability of State sovereignty to States’ ICT activities and to their jurisdiction over ICT infrastructure within their territory. The group clarified under this principle that states exercise jurisdiction over ICT infrastructure by setting policy and law and establishing protective mechanisms over ICT infrastructure in their territory;

• (c) In relation to non-intervention, that States must not use ICTs to intervene directly or indirectly with the internal affairs of another State;

• (d) That States shall refrain from the threat or use of force against the territorial integrity or political independence of any state when using ICTs;

• (e) The applicability of the United Nations Charter in its entirety and the inherent right of States to take measures consistent with international law;

• (f) That international humanitarian law applies only in situations of armed conflict and the principles of humanity, necessity, proportionality and distinction are established. But the group noted that further study is required in relation to how this area of law applies to ICTs;

• (g) Reaffirming that States are obliged to meet their international obligations regarding acts attributable to them. The GGE also reaffirmed that States must not use proxies to commit internationally wrongful acts using ICTs and that merely because an ICT activity was launched from their territory does not necessarily mean the act is attributable to that State. The Group added that invoking State responsibility involves complex technical, legal, and political considerations.

1.4.1.2 Australia’s Contributions

In its national contribution, Australia affirmed multiple customary international law rules and their applicability to activity in cyberspace. Namely, the applicability of the United Nations Charter and the prohibition on the use of force,¹⁸⁷ the principle of non-intervention,¹⁸⁸ limitations and thresholds governing self-defence to armed attacks,¹⁸⁹ international humanitarian law,¹⁹⁰ international human rights law,¹⁹¹ the customary international law on State responsibility,¹⁹² countermeasures,¹⁹³ and certain remedies.¹⁹⁴ In relation to the use of force, Australia noted that States should consider the intended or reasonably expected consequences of a cyber operation and whether its scale and effects are comparable to kinetic operations.¹⁹⁵ On the principle of non-intervention, Australia offered certain helpful factual examples which would be unlawful in the context of ICTs, for example altering the results of an election in another State, or significantly disrupting a State’s financial systems.¹⁹⁶

Initiatives such as the 2021 GGE Report, and the broader Open-ended Working Group on Developments in the Field of Information and Telecommunications in the Context of International Security’s 2021 report, illuminate the legal positions of a wide range of States on ICTs and international law.¹⁹⁷ To this end, these reports and national contributions to them are essential for the development of international law in an area which is rapidly evolving and becoming ever-more critical to States’ infrastructure.