Hemming on "Criminal Code Design and Sentencing: A Response to Joshua Kleinfeld's Theory of Criminal Victimization"

Dr. Andrew Hemming, a Senior Lecturer in the USQ School of Law and Justice, has just published a rejoinder article titled 'Criminal Code Design and Sentencing: A Response to Joshua Kleinfeld's Theory of Criminal Victimization.'  The article appears in Volume 52(2) of the University of San Francisco Law Review.

Crowley-Cyr asks "Are warnings effective in communicating jellyfish hazards?"

Attribution: TydeNet (Wikimedia Commons)

Associate Professor Lynda Crowley-Cyr of the USQ School of Law and Justice has published an article that attempts to answer the important question:  Are warnings effective in communicating jellyfish hazards?  The article appears in Volume 34(2) on pages 181-197 of the Journal of Health, Safety and Environment.

Gray on "Internment of Terrorism Suspects: Human Rights and Constitutional Issues"

Professor Anthony Gray of the USQ School of Law and Justice has recently published an article titled Internment of Terrorism Suspects: Human Rights and Constitutional Issues in the Australian Journal of Human Rights (Vol 24, No. 3).  Here is the abstract:

"There have been recent calls for the parliament to re-introduce a system of internment of those suspected of future terrorist activity. Preventive detention regimes have a long history within the common law, and to some extent our laws still contain preventive detention aspects. International legal materials would arguably generally prohibit such regimes; however, they also contain exceptions permitting governments to derogate from fundamental human rights in times of emergency or war. This article considers whether, if the Australian Parliament were to implement such a scheme, it would be constitutionally valid. This involves determining whether the Commonwealth’s defence power would support such a law, and the nature of the power to preventively detain an individual. Could such a power be exercised by a government minister, or would it need to be exercised, if at all, by a court?"

Hemming in "Halsbury's Laws of Australia"

USQ Senior Lecturer Andrew Hemming has recently published three entries in the comprehensive legal encyclopedia Halsbury's Laws of Australia.  The entries are:

* Criminal Law GC V Chapters 6 and 7, GC VI, and GC VII;

* Criminal Law GC VIII. Update of Criminal Law GC VIII;

* Contract GC I, II, and V (with Michael Daniel).

Gray on "The Enterprise Risk Theory of Vicarious Liability"

Professor Anthony Gray of the USQ School of Law and Justice has recently published an article titled The Enterprise Risk Theory of Vicarious Liability in Volume 46 (Part 3) of the Australian Business Law Review.  Here is the abstract:


"While the law of vicarious liability has existed for centuries, a satisfactory rationale or explanation for it has proven to be elusive. United States courts began asserting a theory of “enterprise risk” based on economic principles, seeking to allocate the costs associated with doing business to the enterprise. On this basis, the fact that an employee or other worker commits a wrong, and causes a third party injury or loss, is a “cost of doing business” which should properly be allocated to the business activity. This doctrine has apparently been accepted in Canada and the United Kingdom, including seeing child abuse committed within an educational institution as effectively a cost of doing business. While the Australian courts at one point seemed to accept such reasoning, more recently they have turned away from it. This article argues the Australian courts were right to do so, and should continue to not accept such a basis of vicarious liability."

Patrick on Individual Spirituality and Freedom of Religion

Dr. Jeremy Patrick, a Lecturer at the USQ School of Law and Justice, has written a piece for The Conversation titled "Religious freedoms should include spiritual beliefs too".  Patrick discussed the topic in subsequent interviews with Radio Adelaide and ABC RN Drive.

Gray on "Vicarious Liability: Critique and Reform"

Professor Anthony Gray of the USQ School of Law and Justice published a new book last month in Hart Publishing's "Studies in Private Law" series.  The book is titled Vicarious Liability: Critique and Reform.  Here is the publisher's summary:

"The scope of vicarious liability has significantly expanded since its original conception. Today employers are being found liable for actions of employees that they did not authorise, and never would have authorised if asked. They are being held liable for an employee's criminal activity. In the related strict liability field of non-delegable duties, they are being held liable for wrongdoing of independent contractors.

Notions of strict liability have grown increasingly isolated in the law of tort, given the exponential growth in the tort of negligence. They require intellectual justification. Such a justification has proven to be elusive and largely unsatisfactory in relation to vicarious liability and to concepts of non-delegable duty. The law of three jurisdictions studied has now apparently embraced the 'enterprise risk' theory to rationalise the imposition of vicarious liability. This book subjects this theory to strong critique by arguing that it has many weaknesses, which the courts should acknowledge. It suggests that a rationalisation of the liability of an employer for the actions of an employee lies in more traditional legal doctrine which would serve to narrow the circumstances in which an employer is legally liable for a wrong committed by an employee."

Colloquium: "Minority Religions: Legal, Cultural, and Historical Perspectives"

The USQ School of Law and Justice's Law and Religion Research Group is hosting a colloquium next week on the topic Minority Religions: Legal, Cultural, and Historical Perspectives.  Details below:

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The organisation and beliefs of numerically smaller religious groups provide fascinating insights into the lives of individuals and communities that are often overlooked when the topic of faith arises.

Like many other countries, Australia is host to a plethora of minority religious groups, and the presence of these faiths in Western nations is increasing in society as the demographic dominance of Christianity continues to shrink in recent decades.

If the future of religion in Australia is pluralism and fragmentation as some studies suggest, understanding the legal, cultural, and historical ramifications of this trend will be a key part of understanding society as a whole. 

This scholarly colloquium will discuss these fascinating issues, and members of the community are invited to attend.

Presenters:

                                                                                                                                         

·         Dr. Jayne Persian, ‘A National Nuisance:’ Banning Jehovah’s Witnesses in Australia During the Second World War

·         Dr. Jeremy Patrick, ‘A la carte’ Spirituality and the Future of Freedom of Religion

·         Dr. Rami Olwan, The Protection of Intellectual Property Rights in Islam

·         Mr. Matthew Harridan, Uncivilised Religion in Modern Australia

·         Dr. Vanitha Sundra-Karean, Freedom of Religion and Minority Interests in Malaysia—Constitutional Challenges for a Reformed State

Date:

Friday 26 October 2018

Time:

9:00am – 12:15 (Morning tea will be served)

Location:

Q501 Toowoomba Campus

RSVP:

Friday 19 October 2018 Email: law@usq.edu.au

Gray on "Punitive Damages: Time for Re-examination"

Professor Anthony Gray of the USQ School of Law and Justice has just published an article titled Punitive Damages: Time for Re-examination in Volume 26 of the Tort Law Review.  Here's the abstract:

"While punitive damages have been known to the common law for a long time, their position as a remedy within the non-criminal law has always been precarious, given their clearly criminal overtones. While at one time they might have been justified, at a time when criminal law was undeveloped and when the state was seeking to encourage individuals to use the courts as a means of resolving disputes rather than resorting to self-help, arguably developments in our legal system and society more broadly have rendered them an anachronism. Not surprisingly, the English courts sought to wind them back, though they did not feel they could abandon them altogether. Today, they retain an awkward place in the civil law, straddling the civil-criminal divide which our legal system traditionally supports. It is highly doubtful they provide any deterrent effect, given the likelihood that a defendant would be insured against such a loss. When punitive damages are imposed as part of vicarious liability, their justification further weakens. Alternative solutions to the problems said to be addressed by punitive damages are readily available. The author argues it would be more intellectual coherent for punitive damages to exit the civil realm altogether."

Breda on "Constitutional Law and Regionalism"

Next month, Elgar Publishing is set to release USQ Senior Lecturer Vito Breda's new book Constitutional Law and Regionalism: A Comparative Analysis of Regionalist Negotiations.  Here is the abstract:

This topical book analyses the practice of negotiating constitutional demands by regional and dispersed national minorities in eight multinational systems. It considers the practices of cooperation and litigation between minority groups and central institutions in Australia, Britain, Canada, New Zealand, Italy, Spain, and the U.S. and includes an evaluation of the implications of the recent Catalan, Puerto Rican and Scottish referenda. Ultimately, the author shows that a flexible constitution combined with a versatile constitutional jurisprudence tends to foster institutional cooperation and the recognition of the pluralistic nature of modern states.

Hart on "The Seven Elements of Successful Country Law Firms"

USQ Associate Professor Caroline Hart has recently published The Seven Elements of Successful Country Law Firms (Federation Press, 2018).  Here is the publisher's summary:

How and why do some country law firms not only survive but prosper while others flounder and fail?

Caroline Hart provides insights for creating a successful country law firm through her interviews with over 40 practice owners who generously share their experiences – good and bad. The remarkable lessons they provide are distilled into seven elements of success.

The book is comprised of chapters covering critical areas such as governance, leadership, information technology, human resources and succession planning. Each chapter concludes with a Masterclass or Lessons Learnt section which gives readers a framed summary that will help them navigate the challenges and opportunities facing their own practice.

Practical and engaging, this book provides a valuable insight into the real lives of owners of country law firms. It reveals what it takes to ensure profitable practices, maintain productive client relationships, retain highly motivated staff, and ultimately ensure the longevity and success of a country law firm.

Collins on "Civil-Military 'Legal' Relations: Where to From Here?"

USQ Associate Professor Pauline Collins has just published an important new book:  Civil-Military 'Legal' Relations: Where to From Here? The Civilian Courts and the Military in the United Kingdom, United States, and Australia (Brill, 2018).  The book is Volume 51 in Brill's International Humanitarian Law Series, and its abstract states:

"Civil-military relations establishes the civilian control over the military to protect democratic values. This book argues analysis of the CMR is distorted by the absence of consideration of the judicial arm, with the ‘civil’ seen as referring only to the executive and/or legislature. The civil courts approach to military discipline and the impact that has for CMR within — the United Kingdom, United States and Australia is investigated. The author concludes that by including the courts in the development of CMR theory militarisation of the civilian domain is discouraged. A paradigm shift acknowledging the fundamental role of all three organs of government in liberal democracies, for control of States’ power is essential for genuine civilian oversight."

Byrne asks "How do we assess the risk of personal liability for directors arising out of tortious acts?"

Mark Byrne, a Senior Lecturer in the School, has asked the important question: 'How do we assess the risk of personal liability for directors arising out of tortious acts?' in (2017) 32 Australian Journal of Corporate Law 351.  The abstract states:

"This is well-recognised as a confusing area of the law. This question is still unsettled today even though the first test which attempted to resolve the matter was introduced in 1924. Further tests have developed and a great deal of scrutiny has been given to them all as alternatives to a solution. This article attempts to summarise the origins of the law and then follow its progress in order to propose a way forward that may provide the certainty and predictability that directors must crave to properly assess their personal risk. It will be argued that all tests should not have to stand alone but contribute to a scale of analysis that will find a director either a primary or joint tortfeasor."

Gray on "Public Sector Employees and the Freedom of Political Communication"

USQ's Professor Anthony Gray has published a journal article on "Public Sector Employees and the Freedom of Political Communication" in a recent issue of the Alternative Law Journal.  Here's the abstract:

"This article considers the Australian Public Service guidelines on public comment on social media in terms of the constitutionally protected freedom of political communication. It argues the guidelines are excessively broad, and go beyond legitimate government interests, significantly affecting the speech of government employees. Such employees have a significant contribution to make to the kind of political debates that are necessary in a functional democracy. It argues there is a real question regarding the compatibility of the guidelines with the constitutionally implied freedom of political communication."

Gray on ''Contempt and the Australian Constitution - Part II'

Professor Anthony Gray recently published 'Contempt and the Australian Constitution - Part II' in the Journal of Judicial Administration (Volume 27, Part 2, 2018).  Here is the abstract:

"Part I of this article considered the existing common law of contempt in light of the implied freedom of political communication, concluding there were real doubts about current contempt law given this constitutional freedom. In Part II another constitutional aspect of contempt law is considered – the question of reform to contempt law, and constitutional limits on such proposals, particularly Chapter III of the Constitution."

McNamara and Zhao on ‘Adani Mining Pty Ltd v Land Services of Coast and Country Inc & Ors [2015] QLC 48’

USQ academics Dr. Noeleen McNamara (Senior Lecturer in Law) and Dr. Bob Zhao (Lecturer in Law) recently published a comment on Adani Mining Pty Ltd v Land Services of Coast and Country Inc & Ors, [2015] QLC 48 in the Australian Resources and Energy Law Journal (Volume 35, Issue 1, 2016).  Here is the abstract:

"The Carmichael Coal Mine and Rail Project comprises a greenfield open cut and underground coal mine and associated mine processing facilities, and a 450 km railway linking the mine with Abbot Point. The proponent is Adani Mining Pty Ltd (Adani), a subsidiary of the Adani Group, based in Ahmedabad, India. The mine is located in the Galilee Basin, the site of a number of proposed coal mines, and when fully developed is to be by far the largest coal mine in Queensland with a proposed production of up to 60 Mtpa and an estimated life of approximately 60 years. Current reserves total in excess of 3 billion tonnes of thermal coal. The estimated investment for the project is between $10 and $14 billion."

Zhao on 'Soil Degradation Through Agriculture in China'

Dr. Bob Zhao, Lecturer in Law at USQ, recently published 'Soil Degradation Through Agriculture in China: Its Extent, Impacts and Implications for Environmental Law Reform' in the International Yearbook of Soil Law and Policy 2017.

Introduction

The purpose of this blog is to chronicle and highlight research from the USQ School of Law and Justice.  Posts will include abstracts of recent publications by academic staff, notices about research events held at the School, and more.  All of this information is gathered from publicly-available sources, and is presented solely at my personal discretion as an individual, unofficial project.  Please read the prominent disclaimer on the side of the desktop version of this blog.