Gray on ‘Religious-Based Discrimination in the Commercial Context on the Basis of Sexual Orientation: A Comparative Perspective'

Professor Anthony Gray of the University of Southern Queensland School of Law and Justice has published a new article titled ‘Religious-Based Discrimination in Religious Context on the Basis of Sexual Orientation: A Comparative Perspective'  The article appears in Volume 51(3) of the Common Law World Review.  Here is the abstract:

"This paper considers how three jurisdictions, Canada, the United States and the United Kingdom, have sought to reconcile freedom of religion with equality rights, particularly in the commercial context, and particularly in relation to sexual orientation. The recent decisions of the United Kingdom Supreme Court and United States Supreme Court form the backdrop for that discussion. It is argued that the former made piecemeal, and misleading, use of American case law, and a fuller consideration of that jurisdiction’s position was warranted, and would have led to a different view of the recent American decision. It argues that the United Kingdom Supreme Court was in error in viewing a message on a cake ordered from a baker as an example of the baker’s expression, leading it to an incorrect conclusion at odds with statutory mandates in the commercial sphere around refusals of service. Both high court decisions risk undermining progress on the equality front."

Collins on 'In search of certainty for military discipline'

Professor Pauline Collins of the University of Southern Queensland School of Law and Justice has published a new article titled 'In search of certainty for military discipline'.  The article appears in Volume 52 of the Australian Bar Review.  Here is the abstract:

"In 2020 the High Court of Australia yet again addressed the reach of military jurisdiction for criminal offending by military members. This article considers the far-reaching decision in 'Private R v Cowen' (2020) 383 ALR 1 in the context of the state of civil-military relations and discipline in the Australian Defence Force. Five out of the seven judges agreed the defence power under section 51(vi) of the Australian 'Constitution' enables Parliament to decide how the control of the military can occur in disciplining service personnel. The article explores the court’s reasoning and critiques the judgment and its consequences for the civil-military control principle, and the needs of service personnel. The article concludes the area is ripe for Parliament’s attention in bringing military discipline up to 21st century standards."

Gray on 'The Separation of Powers and the Mineralogy/Palmer Litigation'

Professor Anthony Gray of the University of Southern Queensland School of Law and Justice has published a new research paper titled 'The Separation of Powers and the Mineralogy/Palmer Litigation'.  Gray's work appears as a book chapter in A Keith Thompson (ed), Current Issues in Australian Constitutional Law (Shepherd Street Press, 2022).  Here is the paper's abstract:

"In a landmark decision in 1996, a majority of the High Court found that the principle of separation of powers could be effectively drawn down from the Australian Constitution so as to be applicable to the state context. The principle is axiomatic as part of constitutional governance, seeking to enshrine checks and balances as a means of limiting the power of the state against individuals. Recently, the Western Australian Parliament passed legislation specifically naming and targeting an individual and organisation, in relation to particular matters in dispute. Effectively, the legislation rendered court proceedings pointless, because it effectively ordered courts not to review or quash government decisions or to provide a remedy in the event it found a law had been breached. The High Court validated the measure. This article argues there were good arguments in favour of the law being held invalid. The decision to validate such measures also imperils the rule of law."

Hemming on 'Inconsistencies, Improbabilities and Impossibilities in the Case of Cardinal Pell: A Reply to Memory Science'

Associate Professor Andrew Hemming of the USQ School of Law and Justice has published a new article titled 'Inconsistencies, Improbabilities and Impossibilities in the Case of Cardinal Pell: A Reply to Memory Science'.  The article, co-written with Fiona Hum, appears in Volume 46 of the Criminal Law Journal.  Here is the abstract:

"This article is a rejoinder to Goodman-Delahunty, Martschuk and Nolan’s article published in the Criminal Law Journal in 2020. In particular, the authors critically evaluate the arguments by the psychological researchers that the High Court decision in Pell v The Queen was based upon a misunderstanding of an application of memory science involving routine practices versus singular impactful events. The authors contend their narrow focus on memory science rather than other relevant issues associated with the mind, is flawed. Their approach also overlooked the sheer weight of evidence for the defence presented at trial and the forensic disadvantage faced by Pell after 22 years. The authors argue that the High Court’s reasoning was rightly based on concerns that an innocent person had been convicted because the evidence did not establish guilt beyond a reasonable doubt."

Gray on 'Proportionality in Australian Constitutional Law: Next Stop Section 116?'

 Professor Anthony Gray of the USQ School of Law and Justice has published a research note titled 'Proportionality in Australian Constitutional Law: Next Stop Section 116?'  The note appears in Volume 1 of the Australian Journal of Law and Religion.  Here is the abstract:

"The High Court has accepted proportionality in interpreting aspects of the Australian Constitution, particularly in the rights context. This article considers its possible application to s116 of the Australian Constitution, enshrining freedom of religion."

Hemming on ‘Why the Jury in Pell v The Queen Must Have Had a Doubt and the High Court was Right to Quash the Guilty Verdicts’

 Associate Professor Andrew Hemming of the University of Southern Queensland School of Law and Justice has published a new article titled ‘Why the Jury in Pell v The Queen Must Have Had a Doubt and the High Court was Right to Quash the Guilty Verdicts’.  The article appears in Volume 1 of the Australian Journal of Law and Religion.  Here is the abstract:

"In the aftermath of the High Court’s decision in Pell v The Queen to quash the guilty verdicts and enter verdicts of acquittal in their place, there has been considerable public discussion and academic commentary on the respective roles of the jury and appellate courts, with particular focus on the jury as the tribunal of fact. Pell v The Queen was a high-profile case involving sexual assault charges against a Cardinal of the Roman Catholic Church, when just a year earlier the Royal Commission into Institutional Responses to Child Sexual Abuse had published its final report which was dominated by abuses perpetrated in the Roman Catholic Church. This article considers the test for the unreasonableness ground of appeal set out by the High Court in M v The Queen, which is reflected in s 276(1)(a) of the Criminal Procedure Act 2009 (Vic), whether ‘upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty’; and concludes that the High Court was correct to adopt Weinberg JA’s dissenting judgment in the Victorian Court of Appeal which in the author’s view was compelling." 

Olwan on 'Intellectual Property: Principles and Practice'

During his time in the University of Southern Queensland School of Law, Dr Rami Olwan (now a Lecturer at Curtin University) co-wrote a book (along with Anne Fitzgerald and Dimitrios Eliades).  The book is titled Intellectual Property: Principles and Practice (Thomson Reuters, 2022).  Here is a portion of the publisher's description:

"Intellectual Property: Principles and Practice provides a succinct, principles-based account of all the forms of intellectual property recognised in Australian law: copyright, patents, plant breeder’s rights, trade marks, designs and confidential information.  It explains the rationale, key concepts and principles of each form of intellectual property in a style which is readily accessible to broad readership." 

Gray on 'Reform to the Law of Consent: A Tale of Two States'

Professor Anthony Gray of the University of Southern Queensland School of Law and Justice has published a new article titled 'Reform to the Law of Consent: A Tale of Two States'  The article appears in Volume 31 of the Journal of Judicial Administration.  Here is the abstract:

"This article considers reform in New South Wales and Queensland regarding consent in the context of sexual offences. While New South Wales has effectively adopted an affirmative consent model, Queensland has (so far) stopped short of making this reform, while making changes in this general direction. It is argued here that Queensland should adopt the affirmative consent model."

Collins on 'Military Operation and Engagement in the Domestic Jurisdiction: Comparative Call-out Laws'

Professor Pauline Collins of the University of Southern Queensland School of Law and Justice has co-edited (with Rosalie Arcala Hall) a new book titled Military Operation and Engagement in the Domestic Jurisdiction: Comparative Call-out Laws (Brill, 2022).  Here is the publisher's description:

"This book scrutinises the call-out of the military in the domestic domain in a selection of 13 countries. Nation-states vary in their political-legal structures and all have their own history in the use of military personnel in domestic matters. Three recent events have resulted in increased domestic military deployment and have been experienced in most countries. In the security domain, there is the rise of Islamic State and increasing acts of terrorism, resulting in military involvement in policing. The other two have been increased humanitarian needs: the COVID-19 pandemic and the widespread flooding and fires following the changes in climate. These have brought increasing military activity domestically, even in established democracies. This comparative analysis incorporates historical developments and provides a rich multidisciplinary approach from political and social scientists to lawyers and military personnel."

In addition to co-writing the book's preface, Collins also contributed one of the chapters: 'Calling Out Defence Personnel in Civilian Security Matters in Australia'.

Mortensen on 'Tort Jurisdiction'

Professor Reid Mortensen of the University of Southern Queensland School of Law and Justice has published a book chapter titled 'Tort Jurisdiction'.  The chapter appears as part of Paul Beaumont and Jayne Holliday (eds), A Guide to Global Private International Law (Bloomsbury [Hart] Publishing, London, 2022).

Patrick on 'Path Dependency, the High Court, and the Constitution'

Dr Jeremy Patrick, a Lecturer in the University of Southern Queensland School of Law and Justice, has published a book chapter on 'Path Dependency, the High Court, and the Constitution'.  The chapter appears in Sarah McKibbin, Jeremy Patrick and Marcus Harmes (eds), The Impact ofLaw’s History: What’s Past is Prologue (Springer, 2022).  Here is the abstract:

"Path dependence is a concept that originally arose in the field of economics before gaining currency with political scientists and historians. The essence of path dependency is that temporality matters: once a decision is made, it often becomes “locked-in” and persists despite the existence of more efficient or otherwise better alternatives that could become apparent later. The tentative hypothesis advanced here is that the concept of path dependency is useful for understanding why some doctrines of Australian constitutional law have changed dramatically since first developed while others remain largely the same. Examples of one arguably path-dependent line of doctrine and one arguably non-path-dependent line of doctrine are discussed and analysed to demonstrate the possibilities and limitations of the theory."

Hemming on 'Under What Circumstances is the Shield Against Self-incrimination Lowered in a Civil Action?'

 Associate Professor Andrew Hemming of the University of Southern Queensland School of Law and Justice has published a new article titled 'Under What Circumstances is the Shield Against Self-incrimination Lowered in a Civil Action?'  The article appears in Volume 9(2) of the Lincoln Memorial University Law Review.  Here is the abstract:

"The case of Pennsylvania v Cosby has brought into sharp relief the question of what criteria apply in determining whether a defendant in a civil action can definitively rely on a District Attorney’s purported statement that no further criminal action will be taken regarding the complaint in question. It is settled law that a defendant in a civil action faces the possibility of perjury charges for not telling the truth once the shield of the constitutionally enshrined Fifth Amendment right against self-incrimination is lowered by virtue of termination of criminal prosecution on the same facts. This article considers how best a defendant in a civil action can be protected against the vagaries of a change in District Attorney who, within the Statute of Limitations, decides the original assurance by a previous District Attorney that no prosecution would be forthcoming was not binding, and consequently evidence gathered in the civil action could be used in a subsequent criminal trial. The dilemma facing defendants is that they may be offered a deal by the District Attorney, whereby criminal charges will be dropped provided defendants give a full disclosure undertaking in a civil action brought by the complainant who is seeking damages. This reflects the breadth of prosecution deals upon which defense attorneys need to be able to rely, otherwise the criminal justice system would be overwhelmed by a significant increase in the number of trials. Such a prospect raises the question of whether a defendant’s best course of action is to claim the Fifth Amendment right in the civil action until the court rules that the District Attorney’s assurance of no prosecution is absolute and binding on his or her successors."

McNamara on ‘The Good, the Bad and the Ugly: A Short History of Biosecurity Regulation in Australia’

Professor Noeleen McNamara of the University of Southern Queensland School of Law and Justice has published a book chapter titled 'The Good, the Bad and the Ugly: A Short History of Biosecurity Regulation in Australia'  The chapter appears in Sarah McKibbin, Jeremy Patrick and Marcus Harmes (eds), The Impact ofLaw’s History: What’s Past is Prologue (Springer, 2022).  Here is the abstract:

"Biosecurity is a major issue for Australia. There have been both successes in stopping the import of diseases and failures in allowing the import of destructive flora and fauna. This chapter will review the legislative history and policies surrounding some of these successes and failures to demonstrate best practice legislation going forward. By way of example, the threat of grape phylloxera, which led to the passing of the Phylloxera Act 1899 (SA), prohibited the import of cuttings from the old-world vineyards—at a time when many vineyards were being wiped out in Europe. Phylloxera was successful and coincidentally has resulted in Australia having the oldest shiraz vineyards in the world. This is not just an historical threat, with current legislation still targeting phylloxera and other vineyard diseases. The chapter will also discuss various historic failures, where a lack of knowledge of local circumstances led to the import of inappropriate “cures”. The cane toad example is well known. Another example is a native African plant, Glycine, which was introduced into Australia for cattle fodder. It is now regarded as an invasive weed, particularly in tropical and sub-tropical Australia. The chapter will address other flora and fauna examples which continue as major environmental problems today. A theme of the chapter is that an understanding of the historical policies surrounding the development of legislation is relevant today as they give us an understanding of what should be considered when developing biosecurity policy and legislation in the modern era."

Gray on 'Proportionality in Administrative Law and its Application to Victoria’s Proposed Pandemic Legislation'

 Professor Anthony Gray of the University of Southern Queensland School of Law and Justice has published a new article titled 'Proportionality in Administrative Law and its Application to Victoria's Proposed Pandemic Legislation'.  The article appears in Volume 29(1) of the Australian Journal of Administrative Law.  Here is the abstract:

"This article describes the use of proportionality in United Kingdom and Australian administrative law. There remains uncertainty regarding use of the doctrine, particularly in Australia. The article defends proportionality on the basis it reflects the rule of law. Its flexibility is an asset. Arguments against proportionality are considered weak. The use of proportionality reflects a culture of justification for the use of government power in a way that impacts an individual’s human rights, which reflects Australia’s liberal democracy. The article then considers application of proportionality principles to Victoria’s mooted pandemic laws. It finds that proportionality principles provide a more fertile ground for effective judicial review of the proposed extreme measures than 'Wednesbury' unreasonableness."

Copley on 'Land, the Social Imaginary, and the Constitution Act 1867 (Qld)'

 Mrs Julie Copley of the University of Southern Queensland School of Law and Justice has published a paper titled 'Land, the Social Imaginary, and the Constitution Act 1867 (Qld)'.  The paper appears as a chapter in Sarah McKibbin, Marcus Harmes, and Jeremy Patrick, eds., The Impact of Law's History: The Past is Prologue (Palgrave Macmillan, 2022).  Here is the abstract:

"Answers to property questions must be integrated into a state’s property institution. That institution is a product of the state’s legal and political arrangements. In law and in society, property questions are likely to be contested, dealing as they do with “property as things” and “property as wealth”. This chapter analyses, with reference to the real property institution established when the colony of Queensland was created in the mid-nineteenth century, legal and social (including political) theory of J.W. Harris, Charles Taylor, and Jeremy Waldron relevant to allocation of property as wealth. Early constitutional provision, enacted to give effect to the instrumental values of the “idea of order” in the new colony, is found to have continuing relevance. This finding demonstrates the importance of due appreciation of the historical evolution of a property institution if answers to property questions—in Queensland, generally in legislative form—are to allocate property as wealth on just and principled lines. It is argued that, as in Queensland, an appreciation of a state’s property institution—including the deeper normative notions and images of the common understandings of the state’s idea of order—is essential to amendment of legal and political arrangements."

Martin on 'Agricultural Biodiversity Stewardship Package - An Analysis of Methodology for Environmental Regulatory Efficiency'

 Dr Rhett Martin, a Senior Lecturer in the USQ School of Law and Justice, has published a new article titled 'Agricultural Biodiversity Stewardship Package -- An Analysis of Methodology for Environmental Regulatory Efficiency'.  The article appears in Volume 38(6) of the Environmental and Planning Law Journal.
 

Gray on 'The Historical Development of the Fault Basis of Liability in the Law of Torts'

Professor Anthony Gray of the USQ School of Law and Justice has published a new book chapter titled 'The Historical Development of the Fault Basis of Liability in the Law of Torts'.  The chapter appears in an edited collection titled The Impact of Law's History: What's Past is Prologue.  Here is the abstract:

"This chapter seeks to understand the general shift in the law of tort, over centuries, from a primarily strict liability system to a fault-based system. At inception, the law was designed to deter the blood feud between individuals as a way of ‘resolving’ conflict. In that context, legal principles that made a person who caused injury to another liable, regardless of the circumstances, were understandable. However, a shift occurred in the law. The law began to take into account the extent to which the plaintiff’s injuries could be said to be the fault of the defendant. All the circumstances of the events, rather than the simple fact or injury and causation, began to be considered. It is important to understand the timeframe over which this has occurred and why it occurred. Such learning may give us fresh insights into possible future reforms in tort law."

Hemming on 'The Use of Real Evidence in Court: Time to Trust the Common Sense of the Jury?'

Associate Professor Andrew Hemming of the USQ School of Law and Justice has published a new article titled 'The Use of Real Evidence in Court: Time to Trust the Common Sense of the Jury?'  The article appears in Volume 96(2) of the prestigious Australian Law Journal.  Here is the abstract:

"Real evidence perhaps is best understood by what it is not: evidence that is neither given by a witness in court nor documentary in form. As such real evidence, while being both tangible and often highly compelling (such as a murder weapon), is also a residual category comprising such assortments of evidence as views, demonstrations and experiments. Real evidence is of course subject to all the usual rules of admissibility such as relevance. But it is the use to which real evidence is put that can lead to controversy and possible appeal grounds. The purpose of this article is to examine the leading cases on the use and misuse of real evidence with a view to recommending (a) legislative reform of the uniform evidence legislation, and (b) statutorily overriding Scott v Numurkah Corporation and Kozul v The Queen at common law. Where real evidence takes the form of an out of court experiment, it is contended that s 53(3)(c) of the uniform evidence legislation should be amended to include an expanded version of the Neilan test at common law, in so far as there should be a presumption that the results of an experiment can be adduced and a jury can make use of what is drawn from the experiment, unless conditions are so dissimilar as to confuse or mislead the jury. Where real evidence takes the form of an in court experiment, it is contended that s 53(4) of the uniform evidence legislation should be amended to allow the court (including, if there is a jury, the jury) to conduct an experiment in the course of its deliberations. The argument is made that the underlying cause of these present restrictions on the use of real evidence is an apparent distrust by the legal profession of the jury’s capacity to properly handle and assess real evidence."

McKibbin, Patrick, and Harmes on "The Impact of Law's History: What's Past is Prologue"

USQ School of Law and Justice lecturers Dr Sarah McKibbin and Dr Jeremy Patrick, along with USQ Open Access College Professor Marcus Harmes, have published a new edited collection titled The Impact of Law's History: What's Past is Prologue.  The book is published by Palgrave Macmillan and collects papers presented at a USQ Law, Religion, and Heritage Research Program Team colloquium on legal history.  Here is the publisher's description:

"This book considers how legal history has shaped and continues to shape our shared present. Each chapter draws a clear and significant connection to a meaningful feature of our lives today. Focusing primarily on England and Australia, contributions show the diversity of approaches to legal history’s relevance to the present. Some contributors have a tight focus on legal decisions of particular importance. Others take much bigger picture overview of major changes that take centuries to register and where impact is still felt. The contributors are a mix of legal historians, practising lawyers, members of the judiciary, and legal academics, and develop analysis from a range of sources from statutes and legal treatises to television programs. Major legal personalities from Edward Marshall Hall to Sir Dudley Ryder are considered, as are landmarks in law from the Magna Carta to the Mabo Decision."

Hemming on 'Nominations to the Supreme Court: Much Ado About Nothing or a Polarized Partisan Court?'

 Associate Professor Andrew Hemming of the USQ School of Law and Justice has published a new article titled 'Nominations to the Supreme Court: Much Ado About Nothing or a Polarized Partisan Court?'  The article appears in Volume 14 of the Elon Law Review.  Here is the abstract:

"The purpose of this article is to examine the recent history of nominations to the Supreme Court with a view to establishing whether the Supreme Court has become a polarized partisan court basing its decisions on values and ideology. For the difficult cases, do Supreme Court Justices reason in reverse by deciding their position in advance and then seeking a logical reasoned argument to justify their pre-determined outcome? Is Posner correct in suggesting that Supreme Court Justices, by virtue of being at the top of the judicial tree, are uniquely free from the constraints on ordinary judges and uniquely tempted to engage in legislative forms of adjudication, with the Supreme Court being best understood as a political court? Alternatively, as Green argues, does Posner overlook the strong influence of historical legalism in constraining Supreme Court Justices from acting like politicians? In view of the political battleground that the filling of Supreme Court vacancies has become, there is a clear expectation, at least on behalf of Presidents and Senators, that their nominated and carefully screened candidate will decide important cases in a manner consistent with their own political values and ideology. Legal commentators regularly refer to the relative number of conservative and liberal Justices on the Supreme Court, with the frequent identification of a single Justice as being a ‘swing’ voter. Such expectations and commentary reinforce the popular notion that Justices on the Supreme Court are legal proxies for the political party which nominated them and do not decide important cases with an open mind. This article considers the extent to which this popular notion of a partisan Supreme Court is accurate."

Collins on 'The Significance of the Defence Force Discipline Appeal Tribunal: Analysis of its Activity Over Four Years'

 Professor Pauline Collins of the USQ School of Law and Justice has published a new article titled 'The Significance of the Defence Force Discipline Appeal Tribunal: Analysis of its Activity Over Four Years'.  The article appears in Volume 32(4) of the Public Law Review.  Here is the abstract:

"The Defence Force Discipline Appeal Tribunal (DFDAT) is a statutory administrative body, not a court, established under the Defence Force Discipline Appeals Act 1955 (Cth). The Tribunal hears and determines appeals from courts martial and Defence Force magistrate hearings in respect of service offences by Australian Defence Force personnel under the Defence Force Discipline Act 1982 (Cth). The Tribunal provides the highest-level 'appeal' review in these matters. The Full Court of the Federal Court of Australia can be accessed for appeals and reference on questions of law. An appeal from the Federal Court’s decision to the High Court can only occur where the High Court grants special leave. Both types of appeal occur infrequently. Otherwise, the Tribunal’s determination is final. Little legal academic interest in this specialised area provides minimal scrutiny of the decisions of the Tribunal, including decisions in which the Tribunal interprets the High Court’s case law. This article provides an overview of the type of matters heard in the last four years, the Tribunal’s reasoning and the issues highlighted for military discipline. It reveals any current challenges for justice and the rights of military personnel."

Gray on 'An Adverse View of Adverse Possession'

 Professor Anthony Gray of the USQ School of Law and Justice has published a new article titled 'An Adverse View of Adverse Possession'.  The article appears in Volume 96(1) of the prestigious Australian Law Journal.  Here is the abstract:

"The doctrine of adverse possession, under which a trespasser to property belonging to another might ultimately become the legal owner of it, continues to be applied in Australian and United Kingdom courts. Though it may have made sense centuries ago, it has become increasingly difficult to justify the doctrine. It has been stridently criticised by the judiciary and academy. It appears at odds with the law's general reluctance to permit individuals to profit from wrongdoing, and the Torrens system of title by registration. This article critiques the doctrine, suggesting significant reform is necessary."

Call for Papers: "USQ Colloquium on Religious Freedom, Sexuality, and Gender Identity"

 Call for Papers
Religious Freedom, Sexuality and Gender Identity

Recent events, including the introduction of the Human Rights Amendment Bill 2022, have placed the

interaction between sexuality, gender and religious belief at the centre of public attention. 

The debate surrounding this measure takes place within a broader conversation on acceptance of LGBTIQA+ communities, religious freedom, and the role of discrimination law in our society.

The Colloquium: The Law, Religion, and Heritage Research Program Team in the University of Southern Queensland is hosting a scholarly colloquium on Religious Freedom, Sexuality, and Gender Identity.

Date: Friday 28 October 2022

Venue: USQ Toowoomba Campus | Q Block | Q501 and Q502 (physical attendance is warmly encouraged, but a Zoom option will be available)                                                        

Keynote Speakers:  Professor Patrick Parkinson and Professor Anthony Gray          

Invitation: At the colloquium, academics are invited to provide scholarly presentations that address the intersection of sexuality, gender identity, and religious belief in a legal context.

What is required to participate? Presentations should be 15-20 minutes in duration, with time for questions to follow. Presentations must be supported by a completed paper or work-in-progress suitable for distribution to other participants. The opportunity to contribute to a special issue of the Australian Journal of Law and Religion may become available after the colloquium.

Are you interested in contributing? Please register your interest in presenting at the colloquium by contacting Dr Jeremy Patrick jeremy.patrick@usq.edu.au  Please include a CV and a brief abstract of the planned paper (100-250 words). 

Expressions of interest should be submitted by 28 August 2022.

The University of Southern Queensland is committed to the values of diversity, multiculturalism, and gender equity by fostering an inclusive environment that embraces difference and supports, values, and respects the unique perspectives and approaches of all individuals.  Please visit https://www.usq.edu.au/about-usq/values-culture/diversity-inclusion for more information.

Hemming on 'Illegally or Improperly Obtained Evidence: Time to Reform s 138 of the Uniform Evidence Legislation?'

 Associate Professor Andrew Hemming of the USQ School of Law and Justice has published a new article titled 'Illegally or Improperly Obtained Evidence: Time to Reform s 138 of the Uniform Evidence Legislation?'  The article appears in 31(2) of the Journal of Judicial Administration.  Here is the abstract:

"Section 138 of the uniform evidence legislation deals with the discretion to exclude improperly or illegally obtained evidence, and has its origins in the well-known judgment of Stephen and Aickin JJ in Bunning v Cross. Section 138 prevents the admission of improperly or illegally obtained evidence ‘unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained’. Thus, unlike the common law, s 138 places the onus of proof on the Crown to justify the admission of improperly or illegally obtained evidence, a situation this article argues should be reversed. The balancing exercise is undertaken through an examination of a non-exhaustive list of matters to be taken into account by the court as set out in s 138(3)(a)-(h). This article will analyse the list of matters in s 138(3)(a)-(h) with a view to considering whether the list should be prioritised in some form, given that jurisdictions such as New South Wales have attempted to influence the balancing exercise by introducing legislation that confers a right of appeal on the Director of Public Prosecutions against an evidentiary ruling that substantially weakens the prosecution case: s 5F(3A) of the Criminal Appeal Act 1912 (NSW). In particular, in light of animal welfare cases such as Lenah Game Meats and Kadir v The Queen, there will be a focus on the matter set out in s 138(3)(h), namely, ‘the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law’. Finally, the interaction between s 138 and s 90 Discretion to exclude admissions will be considered, given that s 90 is effectively a residual fairness discretion to exclude evidence."

Martin on 'Is sustainability classified as law in Australia?'

 Dr Rhett Martin, a Senior Lecturer in the USQ School of Law and Justice, has published a new article titled 'Is sustainability classified as law in Australia?'.  The article appears in Volume 167 of Precedent, a publication of the Australian Lawyer's Alliance.  Here is the abstract:

"Australians embrace sustainability as a concept that sounds worthwhile and may induce actions that help the environment, but what exactly does this term mean, and how does it apply in Australia?"

Timoshanko & Hart on ‘Teaching Technology into the Law Curriculum'

 Dr Aaron Timoshanko and Professor Caroline Hart of the USQ School of Law and Justice have published a new article titled 'Teaching Technology into the Law Curriculum'.  The article appears in Volume 13/14 of the Journal of the Australasian Law Academics Association.  Here is the abstract:

"The role technology plays in the legal profession is growing. It is, therefore, incumbent on legal educators to prepare law students for a profession that leverages current and emerging technologies, while mitigating potential risks. A desktop analysis was performed on all technology-focused courses offered at Australian and New Zealand law schools and at the top five universities in the United States of America and the United Kingdom to identify common themes and characteristics. The authors then share their experiences teaching a technology-focused course at a small regional university. The aim of this article is to stimulate greater discussion about how universities teach technology into the law curriculum, not whether such a course is needed."

Murray on 'A Lawyer by Any Other Name: The Restrictions on Unqualified Legal Practice in Australia’

 Dr Katie Murray, a Lecturer at the USQ School of Law and Justice, has published a new article titled 'A Lawyer by Any Other Name: The Restrictions on Unqualified Legal Practice in Australia'.  The article appears in Volume 95 of the prestigious Australian Law Journal.  Here is the abstract:

"This article examines the restrictions on engaging in legal practice in Australia, focusing on how the restrictions also apply to lawyers, who remain in good standing with the profession, but who no longer hold a current practising certificate. In doing so, it outlines jurisdictional differences; the tests that have been applied to determine what constitutes ‘legal practice’; and examines whether the restriction of lawyers can be justified against the dual considerations of public protection. In particular, I question whether placing lawyers in the same category as ‘laypeople’ is justified by the need to protect the public from ‘unlawful operators’ and argue that this may do a disservice to both lawyers and the public."

Gray on 'The Constitutional Validity of State Royalty Schemes and Profit-Based Schemes'

 Professor Anthony Gray of the USQ School of Law and Justice has published a new article titled 'The Constitutional Validity of State Royal Schemes and Profit-Based Schemes'.  The article appears in Volume 36(4) of the Australian Tax Forum.  Here is the abstract:

"This article considers the constitutional validity of state royalty schemes. The conventional wisdom is that such schemes are consistent with s90 of the Constitution. This article questions that orthodoxy. It also considers the constitutional position if states were to move to profit-based schemes."

Collins on 'A Snapshot of the Family Law Pathways Network Program: Working at the local Community level'

Professor Pauline Collins of the USQ School of Law and Justice has co-written a new journal article titled 'A Snapshot of the Family Law Pathways Network Program: Working at the local Community level'.  The article is co-written with India Bryce and Timothy Nugent and appears in Volume 34(2) of the Australian Journal of Family Law.  Here is the abstract:

"Since 2003, the Australian Attorney-General’s Department has funded Family Law Pathways Network (‘FLPN’) to provide professional assistance for separating families when navigating the legal and human support network maze. The FLPN serve in providing an assured access to information and necessary services in the family justice system. Thirty-three FLPN now operate across Australia. FLPN funding relies on annual government funding approval creating a fragile funding basis for their continued work. In response the FLPN has sought evidence to determine just how important their role is in the family domain. This article reports on an evidence-based research project that provides a snapshot of FLPN activities and their value to the local community across FLPN communities in Australia."

Burgess on 'The Philippine Competition Act Annotated'

 Rachel Burgess, an academic affiliated with the USQ School of Law and Justice, has co-edited (along with Amabelle Asuncion and Alain Charles Veloso) a new book: The Phillippine Competition Act Annotated.  The book is published by Rex Publishing.

Hemming on 'Reform of the Evidential Rules for Eyewitness Identification in the United States – Advice from the Antipodes'

Associate Professor Andrew Hemming of the USQ School of Law and Justice has published a new article titled 'Reform of the Evidential Rules for Eyewitness Identification in the United States--Advice from the Antipodes'.  The article appears in Volume 43(1) of the Houston Journal of International Law.  Here is the abstract:

"The Federal Rules of Evidence (FRE) in the United States comprise a number of short provisions that are set out in plain language and are largely free of technical terms. Rule 801 deals with exclusions from hearsay, and sub-section (d) deals with statements that are not hearsay. FRE 801(d)(1)(C) covers the situation where the declarant testifies about a prior statement, and the statement identifies a person as someone the declarant perceived earlier. Eyewitness identification evidence is notoriously unreliable, and the courts apply the test enumerated in Manson v Brathwaite to determine the reliability of pre-trial eyewitness identification.

Manson identified a two part test where the first limb involves consideration of whether the police adopted a suggestive procedure pointing to the defendant as the perpetrator. If the procedure is satisfactory, then the identification evidence is admitted as there is no breach of due process. In the event the procedure is found to be suggestive, then the second limb applies and the court examines five factors to decide whether the identification is nevertheless admissible on the grounds of reliability. These five factors are: (1) the opportunity to view; (2) the degree of attention; (3) the accuracy of the description; (4) the witness’ level of certainty; and (5) the time between the crime and the confrontation.

The Manson decision has been criticized and will be further considered here, but the focus of this article is to view the admissibility of eyewitness identification evidence holistically from the voir dire to the judge’s summing up to the jury. Assuming that the evidence is admitted under either of the limbs set out in the Manson test, the next question is whether the evidence requires a warning to be given by the trial judge to the jury as to the dangers of convicting the defendant where eyewitness identification is the critical fact in issue and the mainstay of the prosecution’s case. In this regard, the evidential principles relating to eyewitness identification evidence in Australia (and to a lesser extent in England ) will be examined, with a view to making recommendations that the United States should adopt aspects of these principles, particularly the criteria triggering a warning from the trial judge to the jury."