Humby on 'Life Course Theory and Romance'

 Dr Lauren Humby of the USQ School of Law and Justice has published a new paper titled 'Life Course Theory and Romance.'  The paper is a chapter in Sarah E Daly (ed), Theories of Crime Through Popular Culture (Palgrave Macmillan, 2020) 159-172.  Here is the publisher's summary of the book:

"This textbook brings criminology theories to life through a wide range of popular works in film, television and video games including 13 Reasons Why, Game of Thrones, The Office, and Super Mario Bros, from a variety of contributors. It serves as an engaging and creative introduction to both traditional and modern theories by applying them to more accessible, non-criminal justice settings.  It helps students to think more broadly like critical criminologists and to identify these theories in everyday life and
modern culture. It encourages them to continue their learning outside of the classroom and includes discussion questions following each chapter. The chapters use extracts from the original works and support the assertions with research and commentary. This textbook will help engage students in the basics of criminology theory from the outset."

Gray on 'COVID-19, Border Restrictions and Section 92 of the Australian Constitution'

 Professor Anthony Gray of the USQ School of Law and Justice has published a timely new article on COVID-19, Border Restrictions and Section 92 of the Australian Constitution  The paper appears in Volume 11 of The Western Australian Jurist.  Here is the abstract:

"This article considers the likelihood of a successful constitutional challenge to the Western Australian hard border restrictions. Section 92 of the Australian Constitution states that trade, commerce and intercourse among the states is to be absolutely free. Whilst the section is not interpreted literally, it is argued there is a strong case for the provisions to be held constitutionally invalid, though the High Court recently dismissed the challenge."

Gray on 'Free Speech and Secondary Boycott Activity in Australia'

Professor Anthony Gray of the USQ School of Law and Justice has published a new article titled Free Speech and Secondary Boycott Activity in Australia.  The article appears in Volume 48(5) of the Australian Business Law Review.  Here is the abstract:

"This article considers whether or not existing regulation of secondary boycott activity is consistent with the implied freedom of political communication in the Australian Constitution."

Sylvester on 'eLearn – Statutory Interpretation – an Introduction'

Ms Lisa Sylvester of the USQ School of Law and Justice has recently published eLearn - Statutory Interpretation - an Introduction along with co-author Sharon Szeto.  

This interactive digital learning

resource is available on the LexisNexis online store.  Here is the publisher's summary:

"eLearn: Statutory Interpretation – an Introduction is an online resource that provides students of law and related disciplines with an interactive way to know, understand and practise the fundamentals of interpretation.

This digital resource provides activities that create an engaging way to improve the skills and knowledge that students acquire in their seminars and tutorials. It is designed to align with a semester course where statutory interpretation may be either a unit of study or embedded in another legal subject. It highlights the modern approach to statutory interpretation.

The resource serves as a revision and support tool. Students can stop an activity, logoff and resume at the point they last reached. Completing the reading and activities will take students 5–7 hours, depending on their level of interest and interaction with extra content such as flowcharts; how-to videos and glossaries. It is a companion resource for all foundations of law textbooks and units in which statutory interpretation is taught.

Features

• Interactive timeline to understand England’s role in the development of Australia’s parliament
• Videos to support the practice of research skills
• Search activities that link to Federal Register of Legislation (also NSW and Victoria)
• A “hinty-bot” to provide tips on the learning journey
• Resource tab that includes useful links; downloadable documents; and a glossary of legal terms
• End of module quizzes"

Hemming on ‘Is there any prospect of a model provision for similar fact/propensity evidence or the coincidence/tendency rules in Australia?’

Dr Andrew Hemming, a Senior Lecturer in the USQ School of Law and Justice, has published a new article titled ‘Is there any prospect of a model provision for similar fact/propensity evidence or the coincidence/tendency rules in Australia?’ The article appears in Volume 44 of the Criminal Law Journal.  Here is the abstract:

"Australia has five tests for the admission of similar fact or propensity evidence as it is known at common law, or alternatively coincidence or tendency evidence as it is known under the Uniform Evidence Legislation. Each test differs according to the difficulty or “bar” the Crown faces in obtaining the court’s permission to adduce such potentially damaging evidence. This article will weigh the merits of each of the five tests in an endeavour to establish whether there is any prospect of a model provision, such that a uniform test across Australian criminal law jurisdictions for the admission of similar fact or tendency evidence could be adopted, aside from child sexual offences and domestic violence offences. It is acknowledged that where to set the bar of
admission is both a moral and political one, weighing the moral harm of wrongful conviction against the public interest in convicting offenders (leaving aside local factors such as whether jury trials are mandatory or whether joint trials are common). The criteria for determining the test for a model provision will be considered in Part III, which if adopted will require a shift in the weight ascribed to these competing considerations in some jurisdictions."

Gray on ‘The Evolution from Strict Liability to Negligence: Implications for the Tort of Private Nuisance Part II’

Professor Anthony Gray of the USQ School of Law and Justice has published a new article titled 'The Evolution from Strict Liability to Negligence: Implications for the Tort of Private Nuisance Part II'.  The article appears in Volume 94(9) of the Australian Law Journal.  Here is the abstract:

"Part 1 of this article considered the broad shift in the law of tort away from a strict liability, “act at peril” approach in favour of a fault-based system of liability, best shown in the explosive growth of the tort of negligence. Given the overwhelming prevalence of fault-based liability in negligence, it causes us to wonder about continuing pockets of strict liability elsewhere in tort law. The tort of private nuisance is typically seen as one such tort. Part 2 considers these trends and developments, with a view to considering whether the tort of private nuisance might now be subsumed into the law of negligence, as has occurred with other torts that formerly had a separate identity."

Hart & McKibbin on "Learning Law"

Associate Professor Caroline Hart and Dr Sarah McKibbin of the USQ School of Law and Justice have co-authored the second edition of Learning Law from Cambridge University Press along with Anthony

Marinac, Rhianna Chisholm, Jennifer Nielsen, Asmi Wood, and Adrian Evans.  Here is the publisher's summary:

"Learning Law is an accessible and engaging introduction to Australian law for students considering a career in the legal profession. This text teaches students how to deal with legislation and cases, focusing on core topics and contextualisation. This second edition has been thoroughly updated and revised, with significant changes including: six new chapters – First Peoples and the law, research, the ethical lawyer, statutory interpretation, lawyers and clients, becoming a lawyer – more coverage of parliaments and courts, new Living Law boxes that showcase the diverse career paths available to law graduates and new Critical Perspective boxes to engage students with critical analysis. Written in a conversational style, Learning Law will leave students feeling more knowledgeable about, and confident in, their interactions with Australian legal institutions and legal professionals. This text is an essential resource that law students will refer to throughout their studies and in the early stages of their career."

Gray on 'The Evolution from Strict Liability to Negligence: When and Why? Part I'

Professor Anthony Gray of the USQ School of Law and Justice has published a new article titled 'The Evolution from Strict Liability to Neglience: When and Why? Part I'.  The article appears in Volume 94(8) of the Australian Law Journal.  Here is the abstract:

"Tort law has, viewed through a long lens, moved generally from strict to fault-based liability. This move is not (yet) complete; pockets of strict liability remain. It is important to understand this move. Why, and when, did it occur? The questions, and so the answers, may be related. This article attempts some answers. Part 1 charts the gradual but perceptible shift in common law thinking away from “act at peril” philosophy to one where liability lies where it falls, unless fault of another is shown. While of historical interest, this shift is also of contemporary interest. Given that pockets of strict liability remain in our law, what
rationale, if any, supports them? If most tort law is now fault-based, why persist with any strict liability? In that context, Part 2 considers application of these trends in the context of the tort of private nuisance, traditionally a tort of strict liability."

Timoshanko on 'Justice at the Edge: Hearing the Sound of Silence’

Dr Aaron Timoshanko, a Lecturer in the USQ School of Law and Justice, has co-authored a new article titled 'Justice at the Edge: Hearing the Sound of Silence.'  The article was written in collaboration with Kim Economides and Leslie S. Ferraz and appears in Volume 41(1) of the Adelaide Law Review.  Here is the abstract:

"This article examines a novel emerging trend in the access to justice movement. This latest trend is best seen as a counter-wave — or rip current — that seeks to incorporate knowledge and experience found at the periphery of the legal system in order to advance the theory and practice that underpins access to justice. Drawing on recent legal developments pioneered in Aotearoa/New Zealand that grant personhood status to natural objects, we report on the Maori world view that treats natural objects in much the same way as respected family members. This new perspective is indicative of the counter-wave in action and illustrates how legal principles derived from the periphery — in this case rooted in the First Law of the Maori people — are being recognised and incorporated into the mainstream legal system, holding the potential to advance access to justice for First Nations peoples whilst also bringing other benefits to the wider society. Focusing primarily on Australia, Brazil and Canada, our aim is to highlight common signs of receptivity for granting natural objects personhood status, and to show how this converging trend could enrich both the quality and accessibility of justice in these and other  jurisdictions."

Gray on ‘Three Suggested Reforms to Australia’s Defamation Laws’

Professor Anthony Gray of the USQ School of Law and Justice has published a new article titled 'Three Suggested Reforms to Australia's Defamation Laws'.  The article appears in Volume 45(2) of the Alternative Law Journal.  Here is the abstract:

"The Council of Attorneys-General is currently reviewing Australia's existing uniform defamation laws. This article suggests three significant reforms that would improve the existing law."

Young on ‘The ‘Blue Sky effect’: A repatriation of judicial review grounds or a search for flexibility?’

Professor Simon Young of the University of Southern Queensland School of Law and Justice has published a new article titled ‘The ‘Blue Sky effect’: A repatriation of judicial review grounds or a search for flexibility?’ The article appears in Volume 98 of the Australian Institute of Administrative Law Forum. 

Gray pens ‘Change the Rules: Reform of the Economic Torts in Australia’

Professor Anthony Gray of the USQ School of Law and Justice has published a new article titled 'Change the Rules: Reform of the Economic Torts in Australia'.  The article appears in Volume 21(2) of the Flinders Law Journal.  Here is the abstract:

"The status of the economic torts in Australian law has not featured in recent academic writing, and has not been the subject of much judicial consideration. This article intends to bridge this gap. It was prompted by a controversy involving a sporting star. Rugby Australia terminated the contract of star player Israel Folau due to his social media activity. One issue that has been raised is whether sponsors may be liable to the player for one of the economic torts, such as inducing breach of contract and/or interference with trade or business. While the former tort has been well accepted in Australian tort law, there remains real uncertainty about the latter."

Hemming on 'LexisNexis Questions and Answers: Civil Procedure'

Dr Andrew Hemming, a Senior Lecturer at the USQ School of Law and Justice, has recently published the second edition of LexisNexis Questions and Answers: Civil Procedure.  The book is published by LexisNexis and co-authored with Hugh Zillman.  Here is the publisher's summary:

"LexisNexis Questions and Answers: Civil Procedure is designed to facilitate both continuous review and preparation for examinations. It provides an understanding of civil procedure and gives a clear and systematic approach to analysing and answering problem and exam questions. Each chapter commences with a summary of the relevant law and key issues. A suggested answer plan, a sample answer and comments on how the answer might be assessed by an examiner are provided for each question. The authors also offer advice on common errors to avoid when answering the problems.

In this second edition, the authors present the rules relating to civil procedure in a way that develops an academically rigorous understanding of this complex area of legal practice and enhances the reader’s ability to apply this knowledge in real world client-based situations. The commentary has been updated throughout with reference to recent decisions and includes expanded examination of the procedural rules and processes in the Federal Court jurisdiction.

Features

• Summary of key issues in each chapter
• Questions with answer guide, suggested answer, examiners comments and common errors to avoid
• Helps students revise key areas before attempting problem questions
• Assists students with effective exam study preparation
• Enables students to practise applying their knowledge to hypothetical problems"
  

Patrick on ‘A la carte spirituality and the future of freedom of religion’

Dr Jeremy Patrick, a Lecturer in the USQ School of Law and Justice, has published a paper in a new edited collection.  The title of the paper is 'A la carte spirituality and the future of freedom of religion' and it appears in Paul Babie, Neville Rochow, and Brett Scharffs (eds), Freedom of Religion or Belief: Creating the Constitutional Space for Fundamental Freedoms (Elgar, 2020).  Here is the abstract:

"Although institutional religion continues on, there has been a dramatic increase in the past 20 years in those who describe themselves as ‘spiritual but not religious’. The common trait among so-called SBNRs is that they take an individualistic approach to religion: picking and choosing particular beliefs from a wide variety of religious traditions and then adding in, on an a la carte basis, notions from what may be derided by many as folklore, pseudoscience, the New Age smorgasbord or personal intuition. The rise of this ‘new spirituality’ presents challenges for the traditional application of religious freedom principles in liberal democracies which were developed in the context of institutional, hierarchical and formalized religious affiliations. This paper examples doctrinal freedom of religion principles in Australia, Canada and the United States and discusses how ‘freedom of religion’ must evolve to protect spiritual beliefs that are personal and idiosyncratic."

McKibbin Reviews "Commercial Issues in Private International Law"

Dr Sarah McKibbin of the USQ School of Law and Justice has published a review o

f Commercial Issues in Private International Law (Michael Douglas, Vivienne Bath, Mary Keyes and Andrew Dickinson, eds.) (Hart Publishing, 2019).  The review appears in Volume 39(1) of the University of Queensland Law Journal.

Sundra-Karean on 'Judicial Power in Transplanted Common Law Jurisdictions: Malaysia's Continuing Struggle - One Step Forward, Two Steps Back'

Dr Vanitha Sundra-Karean, a Senior Lecturer in the USQ School of Law and Justice, has published a new article in the April 2020 issue of the prestigious journal Public Law.  The article is 'Judicial Power in Transplanted Common Law Jurisdictions: Malaysia's Continuing Struggle - One Step Forward,

Two Steps Back'.

Gray on "Strict Liability in the Law of Defamation"

Professor Anthony Gray of the USQ School of Law and Justice has published a new article titled "Strict Liability in the Law of Defamation."  The article appears in volume 27(2) of the Tort Law Review.  Here is the abstract:

"The Standing Committee of Attorneys-General is currently considering substantial reform to Australia’s existing defamation laws. In earlier articles, I have suggested reform is required in relation to the multiple publication rule, and in relation to the liability of tech companies in relation to defamation. In this article, a more radical change is suggested. Defamation is traditionally a tort of strict liability, not requiring proof of fault on the defendant’s part. Strict liability has a rich history in the law of tort, but has progressively become more isolated, as fault-based negligence has become more dominant. While strict liability made sense historically, in terms of the goals of the law of tort, its rationales have weakened over time as the tort landscape has changed. Defamation law has sought to accommodate, to some extent, fault-based questions through the use of convoluted defences. It is argued here that it would be simpler to define the tort in terms of fault in a reformed law of defamation, rather than introduce it through the back door of defences to a tort of ostensible strictness. American law provides a partial, but not complete, guide in this process."

Patrick on "Faith or Fraud? Fortune-telling, Spirituality, and the Law"

Dr. Jeremy Patrick of the USQ School of Law and Justice has published a new book with the University of British Columbia Press.  The book is titled Faith or Fraud? Fortune-telling, Spirituality, and the Law.  Here is the publisher's description:

The growing presence in Western society of non-mainstream faiths and spiritual practices poses a dilemma for the law. If a fortune teller promises to tell the future in exchange for cash, and both parties believe in the process, has a fraud been committed? Should someone with a potpourri of New Age beliefs be accorded the same legal protection as a devout Catholic?

Building on a thorough history of the legal regulation of fortune-telling laws in four countries, Faith or Fraud examines the impact of people who identify as “spiritual but not religious” on the future legal understanding of religious freedom. Traditional legal notions of religious freedom have been conceived and articulated in the context of monotheistic, organized religions that impose moral constraints on adherents. Jeremy Patrick examines how the law needs to adapt to a contemporary spirituality in which individuals select concepts drawn from multiple religions, philosophies, and folklore to develop their own idiosyncratic belief systems.

Faith or Fraud exposes the law’s failure to recognize individual spirituality as part of modern religious practice, concluding that the legal conception of religious freedom has not evolved to keep pace with religion itself.

Law and religion scholars in the United States, Canada, and Australia will find much to recommend this work, which also contains valuable material for British law and religion specialists and sociologists of religion.

Gray on 'Sponsor Pressure to Discipline Employees Who Have Expressed Unwelcome Views and Reform of the Business Torts in Australia'

Professor Anthony Gray of the USQ School of Law and Justice has published an article titled 'Sponsor Pressure to Discipline Employees Who Have Expressed Unwelcome Views and Reform of the Business Torts in Australia'.  The article appears in Volume 47(5) of the Australian Business Law Review.  Here is the abstract: 

"This article focuses on a suggestion that the current litigation involving footballer Israel Folau may involve an action by him against sponsors of his employer, if it could be shown that there was some link between sponsor concerns about public comments made and Mr Folau’s eventual termination. The article cannot answer the question specifically about Mr Folau’s case, but the suggestion raises important questions about Australia’s current regime of business torts. The article considers two important questions in this regard. First, whether Australian business law should recognise a tort of unlawful, intentional interference with trade or business, and secondly, if it does, how that tort would sit with the existing business torts of inducing breach of contract, conspiracy and intimidation. The article suggests that Australian business law should adopt the tort of unlawful, intentional interference with trade or business, and that an Australian court should also take the opportunity to subsume existing business law torts within this new tort, to simplify the law in this regard."

Hemming on "In search of a model provision for rape in Australia"

Dr Andrew Hemming, a Senior Lecturer in Law at the USQ School of Law and Justice, has published an important new article.  'In search of a model provision for rape in Australia' appears in Volume 38(1) of the University of Tasmania Law Review and can be accessed through USQ e-Prints.  Here is the abstract:

"The purpose of this article is to set out a comprehensive model provision for the crime of rape (or the equivalent offence) that can be incorporated into all Australian criminal jurisdictions irrespective of whether the particular legislation can be broadly categorised as being a code or a statute. This is in part achieved by defining the specified fault elements, such as knowledge and recklessness, within the provision, thereby overcoming the lack of such definitions in the entire code or statute in some jurisdictions. Given that only the Australian Capital Territory and the Northern Territory have adopted Chapter 2 of the Criminal Code 1995 (Cth), which contains all the general principles of criminal responsibility that apply to any offence, uniform criminal law reform in Australia has stalled. One objective of this article is to show that it is possible to reform key criminal offences in a uniform manner. Apart from addressing the current inconsistencies in rape provisions in Australia, the proposed model provision is also designed to clarify the vexed question of whether the defendant reasonably believed the victim was consenting. In this way, it is hoped that some of the well-known difficulties in securing a conviction for rape — where it is often one person’s word versus another’s against a standard of proof of beyond reasonable doubt — may be reduced through the comprehensiveness and clarity of the statutory language employed in the model provision."

Gray on "The Punishment of Journalists for Contempt for Refusing to Reveal Their Sources in Court"

Professor Anthony Gray of the USQ School of Law and Justice has published a new article in Volume 29(2) of the Journal of Judicial Administration.  The article is titled "The Punishment of Journalists for Contempt for Refusing to Reveal Their Sources in Court".  Here is the abstract:

"Recently, the Australian Federal Police conducted raids at the home and office of two journalists. The validity of such action is currently before the courts. It is argued here that it is possible that the High Court might find that action that effectively forces a journalist to reveal their sources breaches the implied freedom of political communication. Journalists play a pivotal role in permitting the public to hold governments accountable in our democratic system of government. Laws that effectively force them to betray their confidential sources may well limit the supply of information to journalists, in turn curbing the flow of information to voters. Courts in other jurisdictions have found that raids on journalists’ homes and offices infringe freedom of expression in a way that cannot be justified in a democracy."

Gray on ‘The Lawfulness of the Dismissal/Termination of an Employee Who Has Expressed “Unwelcome” Religious Views’

Professor Anthony Gray of the USQ School of Law and Justice has published a new article titled ‘The Lawfulness of the Dismissal/Termination of an Employee Who Has Expressed “Unwelcome” Religious Views’.  The article appears in Volume 47(4) of the Australian Business Law Review.  Here is the abstract:

"The question of the lawfulness of the termination of an employee in relation to their social media activity has been the subject of intense media interest in recent months. This article considers several legal arguments on point, including the possible question of unlawful termination in the Fair Work legislation, arguments about discrimination, breach of contract and other arguments. It concludes that, as the law presently stands, it would generally be difficult for an employee who has terminated in relation to unwelcome social media activity to successfully bring legal action against their employer, subject to a consideration of the specific terms of the employment agreement and facts of any given case. It considers relevant case law in other jurisdictions, accepting that these occurred within a different legal framework." 

Young co-authors "Constitutional promises of indigenous recognition: Canada, Vanuatu and the challenges of pluralism"

Professor Simon Young of the USQ School of Law and Justice has co-authored a new paper (with Professor Jennifer Corrin of UQ) titled "Constitutional promises of indigenous recognition: Canada, Vanuatu and the challenges of pluralism".  The article appears in Volume 48(4) of the Common Law World Review.  Here is the abstract:

"The Constitutions of Canada and Vanuatu commit to recognition of ‘Aboriginal rights’ and ‘customary laws’, respectively. The translation of these aspirations has led the courts deep into the challenges of pluralism, magnified here by the weight of colonialism and constitutional context. This article explores the progress in these two contrasting countries to provide a broader view of the undertaking. It is argued that the persistence of visible problems reveals more fundamental difficulties and that the collaboration essential to the task of ‘recognition’—and to shoring up Western legal systems in the modern reality—must begin earlier and run deeper."

Gray on "Freedom of Speech in Practice: Controversial Applications of Law and Theory"

Professor Anthony Gray of the USQ School of Law and Justice has published an important new book with Lexington Press (an imprint of Rowan and Littlefield).  The book's title is Freedom of Speech in Practice: Controversial Applications of Law and Theory.  Here is the abstract:

"This book considers the application of free speech principles in controversial contexts discussing United States law and equivalent law in Europe, Canada and Australia. Anthony Gray examines the extent to which speech of public sector employees is and should be protected. He tackles the difficult question of hate speech and the degree to which regulation of it has been permitted, and should be permitted. The growing controversy of speech in a university setting is discussed along with the roles campuses play in fostering intellectual debate which democracies depend on. Lastly, Gray looks at free speech issues at stake in the exponential growth of online activity and analyzes questions the of liability these tech companies have and their role as facilitators of mass communication, to what extent does the first amendment even apply, and the potential of the internet to support democratic traditions. Overall, Gray finds that in these several key areas, free speech rights are not as strongly protected as they should be. Courts have often bowed to decision makers balancing away free speech rights in favor of other objectives and instead need to re-assert the importance of free speech in these disparate contexts."

Martin on "Victorian ecological sustainable forest management: Part VI – Identifying change mechanisms in regulation and a new model for Victorian public forestry"

Dr Rhett Martin, a Senior Lecturer at the USQ School of Law and Justice, has published the conclusion to his six-part series on forest management in Victoria.  The article appears in Volume 37(6) of the Environmental and Planning Law Journal and is titled "Victorian ecological sustainable forest management: Part VI – Identifying change mechanisms in regulation and a new model for Victorian public forestry".

Gray on "Chapter III of the Constitution and the Protection of Due Process Rights"

Professor Anthony Gray of the USQ School of Law and Justice has published a new paper in an edited collection on rights.  The book is titled The Legal Protection of Rights in Australia (Hart, 2019) and Professor Gray's contribution is "Chapter III of the Constitution and the Protection of Due Process Rights."

Gray on "A Critique of the Enterprise Risk Theory of Vicarious Liability"

Professor Anthony Gray of the USQ School of Law and Justice has published a new article in Volume 62(2) of the Canadian Business Law Journal.  Here is the abstract for A Critique of the Enterprise Risk Theory of Vicarious Liability:

"The enterprise risk theory has gained prominence as an attempted justification and rationalisation for the imposition of vicarious liability upon employers. This paper makes several criticisms of the enterprise risk theory, including that it does not accurately describe how judges traditionally decide tort law cases, it does not adequately explain all features of vicarious liability law, and it does not justify the imposition of vicarious liability upon organisations."