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."