Gray on ‘The Australian Government’s Use of the Military in an Emergency and the Constitution’

 Professor Anthony Gray of the USQ School of Law and Justice has published a new article titled 'The Australian Government's Use of the Military in an Emergency and the Constitution'.  The article appears in Volume 44(1) of the University of New South Wales Law Journal.  Here is the abstract:

"Australia has recently endured a very trying bushfire season and is currently enduring a worldwide pandemic with COVID-19. These events raise very significant legal issues, including the powers of the federal government to deal with emergency situations. A particularly noteworthy feature of the federal government’s response to these crises has been the use of Defence Force personnel to implement its policy decisions. This article considers the federal government’s powers to respond to emergency situations, including the use of the military."

Hemming on 'Evidence: Commentary and Materials'

 Associate Professor Andrew Hemming of the USQ School of Law and Justice has co-written (along with Brianna Chesser) the new 9th edition of Evidence: Commentary and Materials (ThomsonReuters, 2021).  Here is the publisher's description and the table of contents:

"Evidence: Commentary and Materials 9th Edition introduces general principles and theoretical perpsectives of the law of evidence, covering all Australian jurisdictions and explaining State by State variations.

TABLE OF CONTENTS

Chapter 1. Introduction

Chapter 2. Competence and Compellability 

Chapter 3. The Burden and Standard of Proof 

Chapter 4. Presumptions 

Chapter 5. Prima Facie Case 

Chapter 6. Privilege 

Chapter 7. The Examination of Witnesses 

Chapter 8. Disposition and Character 

Chapter 9. Propensity or Similar Fact Evidence 

Chapter 10. The Accused as a Witness 

Chapter 11. Identification Evidence 

Chapter 12. Real Evidence 

Chapter 13. Documentary Evidence

Chapter 14. Opinion Evidence and Prior Determinations 

Chapter 15. Hearsay: The Exclusionary Rule 

Chapter 16. Hearsay: The Common Law and Statutory Exclusions 

Chapter 17. Confessions, Admissions and Statements Made in the Accused’s Presence 

Chapter 18. Illegally Obtained Evidence and Confirmation by Subsequent Fact 

Chapter 19. Res Gestae 

Chapter 20. Corroboration and Judicial Warnings in the Case of Suspect Witnesses"

Gray on 'Public Servants and the Implied Freedom of Political Communication'

 Professor Anthony Gray of the USQ School of Law and Justice has published a new article titled 'Public Servants and the Implied Freedom of Political Communication'.  The article appears in Volume 49(1) of the Federal Law Review.  Here is the abstract:

"The High Court of Australia recently overturned a tribunal decision in favour of a public servant who was dismissed after sending tweets critical of various politicians and government policies. All members of the Court found the relevant provisions were valid and did not infringe the implied freedom of political communication. This article first discusses development of freedom of speech at common law, through development in ideas about governance from a Hobbesian tradition to a Lockean model of representative government. Notions of representative government underpinned earlier High Court decisions on freedom of political communication, reflecting values such as the sovereignty of the people, accountability and informed decisions at election time. The article then considers restrictions on the ability of public servants to contribute to public debate in that light. Scholars and courts elsewhere have recognised the important contribution public servants can make to representative democracy. The recent decision pays insufficient interest to such contributions and is too willing to accept government arguments as to the need to suppress opinion by public servants in the name of an apolitical and independent public service, without considering counter arguments in terms of democracy, and without sufficient evidence of actual or likely interference with government functions. The proportionality analysis undertaken by the court was inadequate in its failure to do so. Whilst the freedom of communication of public servants is not absolute, restrictions must be narrowly confined and fully justified. Neither test was satisfied in this case."

Young on 'Legal Challenges to ICU Triage Decisions in the Covid-19 Pandemic: How Effectively does the Law Regulate Bedside Rationing Decisions in Australia?'

 Professor Simon Young of the USQ School of Law and Justice has co-written (with Tina Cockburn, Lindy Wilmott, and Ben White) a new article titled 'Legal Challenges to ICU Triage Decisions in the Covid-19 Pandemic: How Effectively does the Law Regulate Bedside Rationing Decisions in Australia?'  The article appears in Volume 44(1) of the University of New South Wales Law Journal.  Here is the abstract:

"The COVID-19 pandemic has raised the difficult question of how to ration scarce intensive care resources when a health system is overwhelmed. Despite substantial ethical scholarship addressing these rationing decisions, little is known about the legal position in Australia. This article considers various legal challenges in response to a clinical scenario denying intensive care admission and a ventilator to a critically ill patient with COVID-19. The article considers key challenges in negligence, criminal law, administrative law, human rights law, and under the parens patriae jurisdiction and guardianship legislation, and how they would apply to this scenario. The article concludes that while there are many obstacles to a successful legal challenge, the law can provide important scrutiny and guidance in the design of decision-making processes and triage policies. To adequately protect individual interests, the article supports calls in the ethical literature to make these policies transparent for public scrutiny."

Gray on 'The Evolution from Strict Liability to Fault in the Law of Torts'

 Professor Anthony Gray of the USQ School of Law and Justice has published an important new book titled The Evolution from Strict Liability to Fault in the Law of Torts (Hart Publishing, 2021).  Here is the publisher's summary:

"Gradually, the law of tort has shifted away from a strict-liability approach to one where fault predominates. This book charts important case law documenting this shift. It seeks to understand how and why it occurred. Given that the Rylands v Fletcher decision is typically seen as a prime exemplar of strict liability, it focusses particularly on that case, as part of the historical development of tort law. It considers the intellectual arguments made in favour of strict liability, and for fault-based liability. Having done so, it then focusses on particular areas of the law of tort, including nuisance, defamation and trespass. It is somewhat anomalous that though most would view these as examples of torts of strict liability, fault considerations have become prominent in their application. This presents an uneasy compromise, where torts that are notionally strict in nature are infused with fault considerations, often through exceptions or defences. This book advocates for further development in the law of tort to better reflect a primarily fault-based approach to liability, at least in the common law. This would make the law of tort more coherent."

Economides on 'Itinerant Justice and Proactive Legal Services: Origins, Achievements and Future Directions’

Honorary Professor Kim Economides of the USQ School of Law and Justice has published a new article titled "Itinerant Justice and Proactive Legal Services: Origins, Achievements and Future Directions'.  The article appears in Volume 18(3) of Direito em Movimento, Rio de Janeiro.  Here is the abstract:

"This article examines itinerant justice and proactive legal services serving remote areas and the distinction between these modes of legal service delivery. It examines foreign and historical precedents for mobile legal services and the lessons that emerge from this experience. The article also considers how these legal services should be evaluated and questions their present scope by asking whether in the future there should be a greater emphasis on collective legal action, or structural, as well as individual casework. Finally, the article looks at future planning and considers specific reforms that might enhance their contribution, particularly for those in remote or Indigenous communities."