Mortensen on 'A Trans-Tasman Challenge: The Zurich Insurance Litigation Reviewed'

Professor Reid Mortensen of the University of Southern Queensland School of Law and Justice has published a new article titled 'A Trans-Tasman Challenge: The Zurich Insurance Litigation Reviewed'.  The article appears in Volume 42(3) of the University of Queensland Law Journal.  Here is the abstract:

"The Trans-Tasman Proceedings Acts took effect in Australia and New Zealand in 2013, and since then have created a well-functioning trans-Tasman judicial area in which the process of all Australian and New Zealand courts can be served, and the judgments of all of those courts can be enforced, anywhere in New Zealand or Australia. The unquestioned jurisdiction that is given to all Australian and New Zealand courts in trans-Tasman cases is also limited only by principles of forum conveniens and the enforcement of choice of court agreements. In Zurich Insurance Company Limited v Koper (‘Zurich Insurance’), the validity of the Australian rules of jurisdiction under the Trans-Tasman Proceedings Act 2010 (Cth) was challenged. The New South Wales courts and the High Court of Australia all rejected the challenge. This article is an account of the constitutional considerations that were canvassed throughout the Zurich Insurance litigation, including the possibility that a High Court majority recognised a positive constitutional implication when upholding the personal jurisdictions created by the 

Trans-Tasman Proceedings Act 2010 (Cth) and the recognition of a federal power to extend the jurisdiction of state courts in all international cases. It also undertakes an analysis of the private international law issues of Zurich Insurance: the clarification of the effect of the Trans-Tasman Proceedings Acts; and the unsatisfactory conclusions reached on the territorial application of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) — the issue that forced the need to consider the validity of the Trans-Tasman Proceedings Act 2010 (Cth) in the first place. In this respect, a plea is made for Australian state parliaments and courts to avoid extra-territorial overreach in the application of state legislation."

Crowe on ‘Sovereignty under the Australian Constitution: Why is Section 6 of the Australia Acts Binding on State Parliaments?’

 Professor Jonathan Crowe of the University of Southern Queensland School of Law and Justice has published a new article titled 'Sovereignty under the Australian Constitution: Why is Section 6 of the Australia Acts Binding on State Parliaments?'  The article appears in Volume 42 of the University of Queensland Law Journal.

Hemming on 'Is Leaving God to Make the Choice an Answer to a Charge of Murder by Reckless Indifference to Human Life or Manslaughter? A Case Study of Queensland Criminal Law'

Associate Professor Andrew Hemming of the University of Southern Queensland School of Law and Justice has published a new article titled 'Is Leaving God to Make the Choice an Answer to a Charge of Murder by Reckless Indifference to Human Life or Manslaughter? A Case Study of Queensland Criminal Law'  The article appears in Volume 3 of the Australian Journal of Law and Religion.  Here is the abstract:

"The criminal law punishes persons who commit a guilty act with the requisite guilty mind. This article considers the criminal responsibility of parents and other persons who claim not to have possessed a guilty mind but instead left the choice to God as to whether a child survived the withdrawal of medication. The critical question is whether a jury can infer actual knowledge that death would probably result when a person consciously avoids considering the ramifications of withholding lifesaving medicine, such as insulin to a child with diabetes, and instead hands moral responsibility to God. This article explores whether murder under the circumstance of reckless indifference to human life, defined as an act committed with an awareness that death will probably arise from that act or omission, encompasses a defendant whose awareness is affected by a religious belief that his or her religious faith required God to make the decision of life or death. To avoid the need for the jury to infer actual knowledge from the objective circumstances of the case, the argument is made for an objective test for recklessness based on the natural and probable consequences test. The Crown’s options in framing the charges to be laid and the reasons why a particular choice may be made are considered, particularly in relation to manslaughter. In addition, this article examines the reach of criminal responsibility where the parents of the child are joined in prayer in their own home by members of the religious group to which the parents belong."

Hemming on 'Criminal Procedure: LexisNexis Questions and Answers'

Associate Professor Andrew Hemming of the University of Southern Queensland School of Law and Justice has penned the second edition of Criminal Procedure: LexisNexis Questions and Answers.  The book is published by LexisNexis.  Here is the publisher's description:

"LexisNexis Questions and Answers: Criminal Procedure is designed to facilitate both continuous review and preparation for assessments and examinations.

This book provides an understanding of criminal 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. Each question is followed by a suggested answer plan, a sample answer and comments on how the answer might be assessed by an examiner. The author also offers advice on common errors to avoid when answering each question.

Questions cover a comprehensive range of topics including arrest, detention and search after arrest, bail, obtaining evidence and forensic procedures, the right to silence and police interrogation, entry onto and search of premises, sentencing and pleas in mitigation, and the appeal process.

The second edition has been revised and expanded in line with recent developments in case law and legislation."

Zhao on 'Foreign Environmental Law'

Dr Bob Zhao, a Senior Lecturer at the University of Southern Queensland, has co-authored (along with Shuyi Wang et al.) a new book titled Foreign Environmental Law.  The book is published by China Social Sciences Press.

Nugent on ‘Justice Alfred Lutwyche and the Early Supreme Court’

Dr Timothy Nugent, a Lecturer in the University of Southern Queensland School of Law and Justice, has published a new article titled 'Justice Alfred Lutwyche and the Early Supreme Court’.  The article appears in Volume 25(7) of the Queensland History Journal.

Gray on ‘Relational Contract Theory, the Relevance of Actual Performance in Contract Interpretation and its Application to Employment Contracts in the United Kingdom and Australia'

Professor Anthony Gray of the University of Southern Queensland School of Law and Justice has published a new article titled ‘Relational Contract Theory, the Relevance of Actual Performance in Contract Interpretation and its Application to Employment Contracts in the United Kingdom and Australia'.  The article appears in Volume 52 of the Common Law World Review.  Here is the abstract:

"This article articulates a theory of relational contract, as an alternative to traditional freedom of contract philosophy. The law has moved away from freedom of contract to some extent, and it can be criticised on the basis of its unrealistic assumptions and detachment from the typical reality of parties’ contracting. Relational contract theory is a possible suitable alternative theoretical framework. It may be useful in relation to contract interpretation. Specifically, it can be utilised to support a broader approach to contract interpretation, with the court focussing on the entirety of the parties’ relations, including the written terms and also subsequent performance. It enjoys some support in the United Kingdom and in other common law jurisdictions. It can support the view taken by two justices of the High Court of Australia in a recent contract interpretation decision involving employment contracts. The article favours the approach taken by these justices, rather than that of the majority, whose judgment reflects classic contract law sentiments at odds with the general direction of contract law in comparative jurisdictions."

Law, Religion, and Heritage Research Program Team Edit Special Issue of Queensland History Journal

The Law, Religion, and Heritage Research Program Team at the University of Southern Queensland has edited a special issue (Volume 25:7) of the Queensland History Journal.  The special issue, "Arbiters of Justice: Historical Studies of Southern Queensland Lawmakers" contains research presented at a colloquium in November of 2021.  Here is the table of contents:

Introduction by Julie Copley, Marcus Harmes, Sarah McKibbin, Jeremy Patrick

‘To chastise and punish’: Patrick Logan, justice of the peace and magistrate of convict Moreton Bay by Roger Ford

Dr Stephen Simpson and the origins of the court system in Queensland by Thomas Bradley

Lawgiving in early colonial Queensland – an historical perspective by Helen Gregory

Justice Alfred Lutwyche and the early Supreme Court by Timothy Nugent

Zhao on 'Commentaries on All-China Environment Federation v Scenic Spot Management Council of Wuxi City’

Dr Bob Zhao of the University of Southern Queensland School of Law and Justice has published a book chapter titled 'Commentaries on All-China Environment Federation v Scenic Spot Management Council of Wuxi City’.  The chapter appears as pp. 419-426 in Xi Wang, Selection of 100 Environmental and Resource Law Cases (Higher Education Press, 2023).

Gray on ‘The Treatment of Young Transgender People and the Law’

Professor Anthony Gray of the University of Southern Queensland School of Law and Justice has published a new article titled 'The Treatment of Young Transgender People and the Law'.  The article appears in Volume 30(2) of the Journal of Law and Medicine.  Here is the abstract:

"This article considers contentious legal issues regarding the treatment of young people who identify as transgender. It considers the extent to which they may consent to treatment, the consent to which parental and/or court approval may be required, and ways in which the law in this area might be reformed."

Young on ‘Indigenous Rights in Freshwater: Mapping the Contest Space in Australia, New Zealand and Canada’

Professor Simon Young of the University of Southern Queensland School of Law and Justice has co-written a new paper (along with Sarah Down and Sharon Mascher) titled 'Indigenous Rights in Freshwater: Mapping the Contest Space in Australia, New Zealand and Canada’.  The article appears in Volume 39 of the Environmental and Planning Law Journal.

Mortensen on ‘The Lost Lawyer regained: virtue, liberalism and citizenship in lawyers’ ethics’

Professor Reid Mortensen of the University of Southern Queensland School of Law and Justice has published a new research paper titled ‘The Lost Lawyer regained: virtue, liberalism and citizenship in lawyers’ ethics’.  The paper appears in Julian Webb (ed), Leading Works in Legal Ethics (Routledge, Abingdon, 2023).  Here is the abstract:

"Anthony Kronman’s Lost Lawyer remains the central contribution of virtue ethics to the moral theory of the legal profession. It is a strangely dichotomised work. Part One is an Aristotelian account of how traditional forms of legal practice have a distinct capacity to nurture practical wisdom in lawyers and, in doing so, prepare ‘the lawyer-statesman’ for public life beyond the law – politics, government, diplomacy. The lawyer-statesman is praised ‘for his virtue and not just his expertise‘. As the subtitle of Lost Lawyer suggests, in Part Two Kronman then presents a gloomy account of the American legal profession in the 1990s, and its shrinking capacity to prepare lawyers for statecraft. His snapshot of trends in law schools, law firms and courts suggests that legal practice is often no longer structured in ways that encourage the development of moral character and the virtue that holds it together – practical wisdom or prudence (phronēsis).

This chapter will present Lost Lawyer’s theory as an important account of legal practice as a morally worthy undertaking. It will locate Lost Lawyer in the rise of virtue ethics in moral theory since the 1950s and therefore grapple with the critics (Dare) who object to Kronman’s theory precisely because it is virtue ethics. The chapter will also explore Kronman’s idea of phron?sis as the simultaneous exercise of sympathy and detachment in relation to client business and how, when compared with earlier efforts at bringing virtue ethics into lawyer’s ethics (Postema, Shaffer), it gives a more satisfying explanation of the connection between legal practice and the development of moral character. The gloom of Part Two will also be addressed. Kronman limited his critique to ‘a crisis in the American legal profession’, and this begs the question whether there has been a comparable crisis in other common law professions. The arguments that Part Two’s sociology of the American legal profession in the 1990s is exaggerated will also be investigated. They leave room to consider whether Lost Lawyer is not only a compelling and positive ethics for lawyers, but one that the contemporary lawyer can achieve."

Zhao on 'The Standing to Sue of NGOs in Environmental Public Interest Litigation in China: A Doctrinal Analysis of Laws and Cases’

Dr Bob Zhao, a Senior Lecturer at the University of Southern Queensland, has co-authored (along with Qi Gao and Quan Ke)  a new research paper titled 'The Standing to Sue of NGOs in Environmental Public Interest Litigation in China: A Doctrinal Analysis of Laws and Cases'.  The paper appears in the edited collection Environmental Public Interest Litigation in China (Springer, Cham, Switzerland, 2023).  Here is the abstract:

"Environmental public interest litigation filed by NGOs is an important legal breakthrough to improve the private enforcement of environmental law. Different from traditional standing rules, NGOs are allowed to sue even if their rights or legal interests are not affected by the acts or omissions in question. Since individual rights are considered as superfluous in actions vindicating environmental public interests, certain threshold requirements are applied to NGOs in Article 58 of Environmental Protection Law to ensure the professionalism of NGOs and prevent frivolous lawsuits. The year 2022 marks the 8th year of its implementation in practice and the judiciary has applied and interpreted this provision in numerous cases. Notably, the status quo of practice does not match expectations. Instead, NGOs are increasingly marginalized in this court-centred environmental movement. Although the Chinese courts have generally adopted a relaxed interpretation of Article 58 in individual cases, the standing to sue of the administrative agencies and procuratorates in environmental public interest litigation has a significant impact on the participation of NGOs. Moreover, it should be admitted that difficulties still exist in providing a sound doctrinal explanation for the application of relevant provisions. This is the dilemma faced by the rapid development of environmental judicial innovations driven by legal policies."

Jones on 'Human Rights and the Environment in the Ogiek Case: Implications for Property Rights in Queensland’

Dr Nicky Jones, a Senior Lecturer in the University of Southern Queensland School of Law and Justice, has published a new article titled 'Human Rights and the Environment in the Ogiek Case: Implications for Property Rights in Queensland'.  The article appears in Volume 39 of the Environmental and Planning Law Journal.

Zhao and McNamara on 'Environmental Public Interest Litigation in China'

 Dr Bob Zhao, a Senior Lecturer, and Professor Noeleen McNamara of the University of Southern Queensland School of Law and Justice have published (along with co-author Xi Wang) a new book titled Environmental Public Interest Litigation in China (Springer, 2023).  Here is the publisher's description:

"This book offers readers an accessible and broad-ranging guide to Environmental Public Interest Litigation (EPIL), which has burgeoned in China over the past decade. The aim of this book is to provide a systematic review of Chinese experiences with EPIL in environmental matters, both with a view to gauging its success to date and well as discussing some more critical aspects. To this end, the book systematically examines the establishment and development of EPIL in China's legal, social, and political contexts. It examines particularly the significant role and functions of EPIL in China's environmental governance, and the far-reaching impacts on Chinese civil society and governments. It also offers readers an insiders' perspective in terms of procedural and substantive issues with respect to EPIL, by reviewing the institutional designs, theoretical underpinnings and specific mechanisms, the roles of various participants and stakeholders involved in this legal process. At the same time, it studies leading EPIL cases raised from environmental pollution, natural resource damage and ecological damage, and the effectiveness of environmental adjudication that sustains EPIL as a new form of judicial instrument. This book is written to remedy the gap between Chinese and English literature in this area of law. The analysis of these issues, through a historic and comparative perspective, reveals the strengths and weaknesses of the current legal regime and serves as a basis for recommendations for bringing about more effective EPIL in China."

Jones on 'An Annotated Guide to the Human Rights Act 2019 (Qld)'

Dr Nicky Jones of the University of Southern Queensland has co-written (along with Peter Billings) a new book titled An Annotated Guide to the Human Rights Act 2019 (Qld).  The book is published by LexisNexis. Here is the publisher's description:

"The Human Rights Act 2019 (Qld) introduced human rights obligations into Queensland that affect all new legislation and require public entities to conduct themselves and make decisions in a way that is compatible with human rights.

This important new text clarifies the scope, content, interpretation and operation of the legislation. The extensive discussion and analysis is informed by the considerable body of international human rights decisions and commentary that has developed under core international human rights treaties such as the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the European Convention on Human Rights, as well as the domestic jurisprudence and commentary from Victoria and the Australian Capital Territory and comparable countries such as the United Kingdom.

Providing both commentary on the Act and annotations to all key provisions, the text offers first reference guidance to legal practitioners, Members of Parliament, public servants, service providers and other people whose role brings them into contact with Queensland’s Human Rights Act, as well as a broader audience of students, academics and people who are interested in human rights law."

Mortensen on ‘Lucy’s Argument: The Spycatcher Case in Australia’

Professor Reid Mortensen of the University of Southern Queensland School of Law and Justice has published a research article titled 'Lucy's Argument: The Spycatcher Case in Australia'.  It appears as  Chapter 6 in an edited collection by Sarah McKibbin and Anthony Kennedy titled The Common Law Jurisprudence of the Conflict of Laws (Hart Publishing, Oxford, 2023).

Gray on ‘Consumption Taxes and Section 90 of the Australian Constitution’

 Professor Anthony Gray of the University of Southern Queensland School of Law and Justice has published a new article titled 'Consumption Taxes and Section 90 of the Australian Constitution'.  The article appears in Volume 38(2) of the Australian Tax Forum.  Here is the abstract:

"Although the High Court has settled upon a broad view of “excise” in s 90 of the Constitution, it has excluded from that term a “true” consumption tax, a tax imposed upon the act of consumption. A Victorian tax on zero and low-emission vehicles imposes such a tax, and is under constitutional challenge. This article explains relevant case law on s 90 as it relates to this question. It considers arguments in favour of and against including “true” consumption taxes within the meaning of excise in s 90. It concludes there are stronger arguments, based on precedent, logic and public policy, favouring the inclusion of such taxes within the meaning of excise in the Constitution."

Collins on 'The Essentials of International Law: An Australian Context'

Professor Pauline Collins of the University of Southern Queensland School of Law and Justice has co-written (with Math Noortmann) a new book titled Essentials of International Law: An Australian Context.  The book is published by LexisNexis.  Here is the publisher's summary:

"Essentials of International Law: An Australian Context provides a comprehensive guide to the basic rules and sources of international law. Designed as a concise and accessible reference for both students and practitioners, it offers Australia-specific examples to contextualise international law concepts for Australian readers. Key principles, cases, legislation, treaties and other international instruments are identified and explained succinctly.

The book covers all the foundational topics of international law and international organisations, and also includes specific international law topics such as human rights, criminal law, economic law and environmental law.

Features
• Concise yet comprehensive coverage
• A succinct quick reference guide
• Accessible and informative
• Australian-focused"

McKibbin on ‘Brook v Brook: Rethinking Marriage Choice of Law’

Dr Sarah McKibbin, a Lecturer at the University of Southern Queensland School of Law and Justice, has published a new scholarly book chapter titled 'Brook v Brook: Rethinking Marriage Choice of Law'.  The chapter appears in Sarah McKibbin and Anthony Kennedy (eds), The Common Law Jurisprudence of the Conflict of Laws (Hart Publishing, Oxford, 2023).

Hemming on 'Criminal Responsibility: Older but No Wiser’

Associate Professor Andrew Hemming of the University of Southern Queensland School of Law and Justice has published a new article titled 'Criminal Responsibility: Older but No Wiser'.  The article appears in Volume 46 of the Criminal Law Journal.  Here is the abstract:

"This paper is a rejoinder to an article entitled ‘Will Australia Raise the Minimum Age of Criminal Responsibility?’ and an editorial entitled ‘A New Architecture for Youth Justice’ both published in the Criminal Law Journal in 2019 and 2022 respectively, in which Professor Thomas Crofts and editor Phillip Boulten endorsed previous calls for an increase in the minimum age of criminal responsibility (MACR) in Australia to a minimum of 12 years of age and preferably 14 years of age. By contrast, the author supports the retention of doli incapax for children aged between 10 and 13 years of age to address the small number of children who represent a threat to public safety, and argues that the neuroscience relied upon by proponents of raising the MACR is dated. The author supports the Queensland Government’s position that simply raising the MACR does not address the complex societal factors underlying offending by children. Any solution to child offending requires a recognition that without improved social justice for the most disadvantaged sections of society, raising the MACR is both pointless and dangerous."

McKibbin on 'The Common Law Jurisprudence of the Conflict of Laws'

Dr Sarah McKibbin, a Lecturer at the University of Southern Queensland School of Law and Justice, has co-edited (along with Anthony Kennedy) a new collected titled The Common Law Jurisprudence of the Conflict of Laws.  The book is published by Hart.  Here is the publisher's synopsis:

"This book presents a collection of leading common law cases in private international law ranging from the 18th to the 21st century. The cases traverse issues of jurisdiction, choice of law and the recognition and enforcement of foreign judgments. Questions of marital validity, domicile, foreign immovable property and choice of law in contract are just some of the topics that this collection examines. The 'unusual factual situations' of some 18th- and 19th-century English cases also reveal compelling human interest stories and political controversies worthy of further exploration.

Drawing on a diverse team of contributors, this edited collection showcases the research of eminent conflicts scholars together with emerging scholars from the United Kingdom, Australia, Canada, Ireland and South Africa."

Hemming on 'Lost in Translation: The Wrongful Conviction of Kathleen Folbigg Based on Fresh Medical Evidence and Expert Interpretation of Her Diaries’

Associate Professor Andrew Hemming of the University of Southern Queensland School of Law and Justice has co-written (along with Fiona Hum) a new article titled: ‘Lost in Translation: The Wrongful Conviction of Kathleen Folbigg Based on Fresh Medical Evidence and Expert Interpretation of Her Diaries’.  The article appears in Volume 97 of the Australian Law Journal.  Here is the abstract:

"This article argues that Kathleen Folbigg was wrongly convicted of suffocating her four children and should be immediately released from prison where she has been incarcerated since 2003. The basis for this contention is the fresh and compelling evidence that Ms Folbigg has the CALM2 mutation which she passed on to two of her four children and precipitated lethal cardiac arrests. The current medical and scientific expert opinion is that all four children died from natural causes. In addition, recent expert opinion from psychologists and linguists on Ms Folbigg’s diaries, which the Crown argued amounted to virtual admissions of guilt, concluded that there was no evidence Ms Folbigg harmed her children and her purpose in writing the entries was to try and make sense of the deaths of her children."

Collins on 'Practice Insight: Court-connected mediation in Jordan—Considerations for choosing a mediator’

Professor Pauline Collins of the University of Southern Queensland School of Law and Justice has co-written (along with Bakr Abdel Fattah Al Serhan and Wesam Faisal Al Shawawreh) a new article titled 'Practice Insight: Court-connected mediation in Jordan—Considerations for choosing a mediator’.  The article appears in the April 2023 issue of Conflict Resolution Quarterly.  Here is the abstract:

"A model of court-connected mediation following Western practice was adopted in Jordan in 2003. Its success has been limited. This practice insight addresses the current mediation legislation in Jordan in relation to civil and commercial disputes. The law allows the parties three options in choosing a mediator, one being a judge mediator. This raises important considerations for parties when they are choosing a mediator. The practice insight addresses these considerations with a view to improving party awareness when exercising their choice of mediator. It also takes the opportunity to suggest legislative changes to improve the uptake of mediation."

Gray on 'The Defence of Superior Orders (and Related Defences) in Australian Military Law'

Professor Anthony Gray of the University of Southern Queensland School of Law and Justice has published a new article titled 'The Defence of Superior Orders (and Related Defences) in Australian Military Law'.  The article appears in Volume 43(2) of the Adelaide Law Review.  Here is the abstract:

"A soldier ordered by a commanding officer to commit acts which may be unlawful is in an invidious position. If they fail to obey the command, they are liable to be convicted of a serious crime. If they obey, but their actions are subsequently found to be unlawful, they are also liable to be convicted of a serious crime. Not surprisingly, the law has struggled to grapple with this conundrum, at times protecting the obedient soldier, at other times punishing them. The relevant provision of the Rome Statute of the International Criminal Court (‘Rome Statute’), focusing on whether the order was ‘manifestly unlawful’, represents an uneasy compromise. This article charts the development of this concept in international law and its reception into Australian domestic law. It also critiques the doctrine for failing to reflect the realities of an obedience imperative within military ranks, its uncertain meaning and its embrace of negligence to effectively gauge criminality, before proposing improvements in this difficult area. The focus should be on a reasonable soldier, to take specific account of the peculiarities of a military environment, rather than a reasonable person. Specifically, this article proposes necessary clarification of the meaning of ‘manifest illegality’, with a specific list of factors to be considered. No other article of which the author is aware attempts such a list."

Patrick on 'Book Review: The Transgender Issue: An Argument for Justice’

Dr Jeremy Patrick, a Senior Lecturer at the University of Southern Queensland School of Law and Justice, has published a book review of The Transgender Issue: An Argument for Justice.  The review appears in Volume 2 of the Australian Journal of Law and Religion.

Gray and Copley on 'Possessory Title: Its Salience to the Torrens System of Australian States’

Professor Anthony Gray and Dr Julie Copley of the University of Southern Queensland School of Law and Justice have published a new article titled 'Possessory Title: Its Salience to the Torrens System of Australian States'.  The article appears in Volume 30 of the Australian Property Law Journal.  Here is the abstract:

"The ancient doctrines of possessory title — protecting possessory interests in land, independent of legal title — continue within the Torrens land title registration systems of Australian states, despite evidence in the case law of legal confusions between possessory title and registered title. To analyse possessory title and its confusions, this article applies law and economics theory of possession to possessory title. According to that theory, possession operates to turn ordinary, social expectations into legal reality, and fundamental to the analysis will be Frederick Pollock’s argument that possession is law’s way of mediating scrambled property interests. The analysis is of the social and legal norms of possessory title (also termed ‘adverse possession’) in Australia: the twin legal doctrines; the consistency of the doctrines with the law and economics of possession and modern property theory; and case law evidence of scrambled real property interests when possessory title operates within a formal, legislative Torrens system. From Pollock’s argument, as applied to contemporary real property interests, an ongoing salience of possessory title will emerge. The salience relates to possession’s contingencies. Where Torrens law is unclear and unsettled, social norms formed from community expectations can convert into legal norms. Where Torrens law is clear and settled, social norms can promote shared understandings of the acts of possession a community associates with legal title."

Martin on ‘Conversion Practices Legislation in Victoria - A Potential Crisis for Church Authority?’

Dr Rhett Martin, a Senior Lecturer at the University of Southern Queensland School of Law and Justice, has published a new article titled 'Conversion Practices Legislation in Victoria -- A Potential Crisis for Church Authority?'  The article appears in Volume 2 of the Australian Journal of Law and Religion.  Here is the abstract:

"The Victorian Change or Suppression (Conversion) Practices Prohibition Act 2021 (Vic) prohibits change and suppression practices that alter or fundamentally change someone’s sexual orientation or gender identity. Whilst the intent of the Act is worthy, the devil is very much in the detail, especially in how the Act includes religious and psychiatric practices and services in its potential ambit. The other contentious issue is the range of powers provided to the Victorian Equal Opportunity and Human Rights Commission, which some argue potentially blur the lines on separation of powers between the judiciary and the legislature. This paper argues some amendments to the Act may be required in order to address these issues."

Gray on 'Proportionality in Australian Constitutional and Administrative Law’

Professor Anthony Gray of the University of Southern Queensland School of Law and Justice has published a new article titled 'Proportionality in Australian Constitutional and Administrative Law'.  The article appears in Volume 41(1) of the University of Tasmania Law Review.  Here is the abstract:

"This article suggests that a consistent approach should be taken to the use of proportionality in public law, including constitutional and administrative law. It documents the partial use of the doctrine in constitutional law, notably with respect to some heads of power, but more in the area of express and implied rights. However, its use in the administrative law realm has been more hesitant. This article argues this hesitancy is misplaced. Its use in both constitutional and administrative law should be consistent, reflecting acknowledgement of the great powers government has, and an insistence they be used carefully, with restraint, and with sensitivity to human rights. Proportionality can assist in meeting this goal."

LRH RPT Submits to ALRC on 'Religious Educational Institutions and Anti-Discrimination Laws'

The Law, Religion, and Heritage Research Program Team at the University of Southern Queensland has made a submission to the Australian Law Reform Commission.  The submission comes in response to a consultation paper on 'Religious Educational Institutions and Anti-Discrimination Laws'.  The submission can be downloaded here   Here is a summary:

"In response to the consultation paper, the LR
H RPT has prepared the present written submission.  It contains three main points.  First, that taken as a whole, the positions expressed in the consultation paper are pragmatic, feasible, and strike a reasonable balance between the fundamental rights of religious freedom and equality.  Second, that religious educational institutions need better guidance on which staffing roles and activities are subject to protection by anti-discrimination provisions in the proposals.  Third, that additional safeguards should be instituted in regard to Proposal 7 so that LGBTIQ+ students are better protected from a pervasive atmosphere of discrimination and hostility that could result from a religious educational institution’s delivery of curriculum content on matters of sexuality and gender. Below, each of these points is discussed in further detail."

Gray on ‘The Tort of Misuse of Public Office: Suggested Clarifications and Reforms’

Professor Anthony Gray of the University of Southern Queensland School of Law and Justice has published a new article titled ‘The Tort of Misuse of Public Office: Suggested Clarifications and Reforms’.  The article appears in 48(2) of the Monash University Law Review.  Here is the abstract:

"Recently the Federal Court of Australia found that a Commonwealth Minister had committed the tort of misuse of public office. While this claim is often brought, it is usually unsuccessful, making this case noteworthy. The case shines a spotlight on this unusual tort. While it has a lengthy history in the common law, many of its contours remain unresolved. This article will explain the basis of the tort, before considering how it has developed in the United Kingdom and Australia. It will consider differences, or possible differences, between the tort in the two jurisdictions. It then critically considers some important aspects of the tort about which there continues to be controversy, including the notion of a public office, the question of vicarious liability, the question whether a duty of care is necessary, and the mental element required. It suggests some important changes in how courts should apply these principles in future cases, to better reflect the realities of government today, the rationale of the tort, and to make it consistent with the courts’ approach to other intent-based torts with which the High Court has specifically related to this novel tort."

Patrick on 'Respect for juries: A rejoinder to Hemming on Pell’

Dr Jeremy Patrick, a Senior Lecturer in the University of Southern Queensland School of Law and Justice, has published a new article titled 'Respect for juries: A rejoinder to Hemming on Pell'.  The article appears in Volume 48(1) of the Alternative Law Journal.  Here is the abstract:

"The High Court decision in Pell v The Queen continues to be the subject of extensive academic controversy. In a pair of important articles, evidence and criminal law scholar Andrew Hemming has defended the Court’s decision. This rejoinder critiques Hemming’s defence (and, by extension, the High Court’s decision) on three grounds. First, because the decision conflates unchallenged testimony with honest and reliable testimony. Second, because it relies on ad hoc probabilistic determinations of discrete and unreplicable historical events. Third, because it fails to answer a key epistemological question: how could the High Court know more about what really did or did not happen in that sacristy than the jury?"

Mortensen on 'Private International Law in Australia'

Professor Reid Mortensen of the University of Southern Queensland School of Law and Justice has co-written (along with Richard Garnett and Mary Keyes) the new fifth edition of Private International Law in Australia (LexisNexis Butterworths, 2023).  Here is the publisher's description:

"The fifth edition of this highly regarded book provides a clear and comprehensive analysis of the principles of private international law and the methods by which such principles are applied to cross-border legal problems in Australia.

Important recent developments in Australian private international law are discussed, together with legislative reforms and significant decisions, particularly of Australian courts. The fifth edition introduces chapters on the taking of evidence across state and national borders.

The book provides an in-depth examination of the following subjects:

• introduction to private international law
• civil jurisdiction and judgments in international litigation
• civil jurisdiction and judgments in Australia and New Zealand
• taking of evidence for Australian and foreign court proceedings
• applicable law method
• international family law
• applicable law for obligations
• applicable law for property
• international company law

An understanding of the fundamental concepts in private international law is becoming increasingly important in legal practice, and the accessible style of this text makes it invaluable to both students and practitioners.

Features
• Detailed discussion of all key areas
• Clear and accessible style
• Comprehensive range of topics
• Authoritative author team"

Reich on 'Making Desistance Recognisable: How Ex-offenders Can Signal Their Desistance from Crime to Employers by Strategic Design'

Dr Suzanne Reich, a Senior Lecturer at the University of Southern Queensland School of Law and Justice, has published a new article titled 'Making Desistance Recognisable: How Ex-offenders Can Signal Their Desistance from Crime to Employers by Strategic Design'.  The article appears in Volume 20 of the British Journal of Criminology.  Here's the abstract:

"One of the primary concerns employers hold about hiring an ex-offender is the potential reoffending risk they pose. However, criminological literature shows that an ex-offender may be able to mitigate employers’ concerns by signalling their desistance from crime. Less understood is how ex-offenders can signal their desistance to (a) make desistance recognizable and (2) communicate desistance signals that employers value. This article draws on the results from the second phase of an Explanatory Sequential Mixed Methods study with a sample of Australian employers who participated in semi-structured interviews (n = 43). The findings show desistance signals can be communicated to employers via strategic design. These findings along with the theoretical and policy implications are then discussed."

Timoshanko on ‘Could Existing Anticruelty Laws Ban Whip Use in Horse Racing?’

Dr Aaron Timoshanko, a Senior Lecturer in the University of Southern Queensland School of Law and Justice, has published a new article titled 'Could Existing Anticruelty Laws Ban Whip Use in Horse Racing?'  The article appears in Volume 43(1) of the Adelaide Law Review.  Here is the abstract:

"In the face of new scientific evidence suggesting horses experience pain with the use of padded whips in racing, this article considers whether the continued use of whips in racing could offend the existing anticruelty laws. In Australia, it is an offence to inflict ‘unreasonable’, ‘unnecessary’ or ‘unjustifiable’ pain or suffering on an animal. How reasonable, necessary or justifiable is the pain caused by padded whips for the purpose of human entertainment? Relying on the ‘modern’ approach to statutory interpretation and the application of the ‘always speaking’ approach, it is argued that a court could interpret ‘unreasonable’, ‘unnecessary’ or ‘unjustifiable’ to extend the anticruelty provision to new situations and developments, including new scientific knowledge. However, in respect of whip use in racing, other important constitutional and contextual considerations must also be taken into account when deciding if whipping inflicts ‘unreasonable’, ‘unnecessary’ or ‘unjustifiable’ pain. Namely, the potential consequences of a certain interpretation, the presumption against retrospective operation, and the doctrine of the separation of powers. In giving all considerations due weight, it is unlikely that any court would interpret whip use in racing as inflicting ‘unreasonable’, ‘unnecessary’ or ‘unjustifiable’ pain or suffering despite new scientific evidence suggesting the pain inflicted may be disproportionate."

Gray on 'Determining Whether an Employment or Independent Contractor Relationship Exists and the Relevance of Contractual Performance to its Interpretation'

Professor Anthony Gray of the University of Southern Queensland School of Law and Justice has published a new article titled 'Determining Whether an Employment or Independent Contractor Relationship Exists and the Relevance of Contractual Performance to its Interpretation'.  The article appears in Volume 50 of the Australian Business Law Review.  Here is the abstract:

"A recent High Court decision considered important questions regarding principles of contractual interpretation when actual performance differs from the form of the contract, and how a court should determine the true nature of a working relationship. On the former, a majority of the Court took a formalist view of contract interpretation; on the latter, a majority signalled a return to a kind of organisation test that earlier decisions had discarded. On the former, this position isolates Australian law from that pertaining in jurisdictions elsewhere. It is submitted the position of the second joint reasons is preferred, taking into account actual performance in interpreting the contract. It also defends the multi-factorial approach traditionally taken to questions regarding the true nature of a working relationship."

Hart & Timoshanko on 'Ready for a Reboot: Law Schools Need to Reboot and Upgrade the Law Curriculum Now to Better Meet the Impacts of Technology'

Professor Caroline Hart and Dr Aaron Timoshanko of the University of Southern Queensland School of Law and Justice have published a new article titled 'Ready for a Reboot: Law Schools Need to Reboot and Upgrade the Law Curriculum Now to Better Meet the Impacts of Technology'.  The article appears in Volume 15 of the Journal of Australasian Law Academics Association.  The paper can be found on SSRN.  Here is the abstract:

"This paper investigates Australian legal education’s capacity to acknowledge and respond to the impacts of the increasing use of technologies aiding legal service delivery. While law academics are debating the extent of this impact, there are already new jobs with new titles requiring new skillsets, and these employment opportunities will go to the best-prepared graduates. Even within the current framework, law academics have the capacity to better equip graduates to succeed in this changing environment through leadership and engagement with the key players. The responsibility to lead this adapted legal education is best held by law schools carrying it out as a fiduciary role towards graduates rather than as a broker for broader tech-interests."

Gray on ‘Vanderstock v Victoria: Are “True” Consumption Taxes Forbidden to the States by Section 90 of the Australian Constitution?'

Professor Anthony Gray of the University of Southern Queensland School of Law and Justice has published a new article titled ‘Vanderstock v Victoria: Are “True” Consumption Taxes Forbidden to the States by Section 90 of the Australian Constitution?'  The article appears in Volume 44(4) of the Sydney Law Review.  Here is the abstract:

"The High Court of Australia will soon consider a constitutional challenge to recent Victorian legislation that imposes a fee on the use of a zero or lowemission vehicle. The challenge argues that such a fee is an excise tax, prohibited to the States by s 90 of the Australian Constitution. The Court will need to consider the current orthodoxy that a consumption tax is not an excise, and its longstanding interpretation of s 90. This column submits the High Court should extend the existing definition of excise to include true taxes on consumption. This would be most consistent with the view of the purpose of s 90 accepted by the High Court since 1949, and would remove an anomaly from existing law."

Martin on ‘The River as a Separate Legal Person: Implications for Sustainability and Governance’

Dr Rhett Martin, a Senior Lecturer in the University of Southern Queensland School of Law and Justice, has published a new article titled 'The River as a Separate Legal Person: Implications for Sustainability and Governance'.  The article appears in Volume 39(2) of the Environmental and Planning Law Journal.  

Hemming on 'Evidence Law in Queensland, South Australia and Western Australia'

 Associate Professor Andrew Hemming of the University of Southern Queensland School of Law and Justice has published the second edition of Evidence Law in Queensland, South Australia and Western Australia (Thomson Reuters, 2022).  Here is the publisher's description:

"Evidence law in the three “common law” states of Queensland, South Australia and Western Australia is the prime focus of this book, highlighting their similarities and differences. Additionally the book compares and contrasts the evidence law of these states with the uniform evidence legislation.  

Each of the 12 chapters traverse key concepts, case law and legislation, with generous use of headings to guide readers in a logical and easy- to- read style. The publication is an excellent teaching tool and includes active learning questions and problem scenarios which can be discussed during evidence courses. The book is also a practical resource for busy legal practitioners who need to gain a quick understanding of particular evidentiary issues.

Specific features of this book included within the 12 Chapters are:

• Tables summarising the main common law judicial discretions governing exclusion of relevant evidence and the equivalent uniform evidence provisions.
• Special and vulnerable witnesses giving evidence - law and practice.
• Privileges of confidential communications, counselling, religious confessions, shield for journalist sources in Qld and SA, and parliamentary proceedings; public interest immunity in AB (a pseudonym) v CD (a pseudonym).
• Consideration of the propensity or similar fact cases of Hughes v The Queen and The Queen v Dennis Bauer (A Pseudonym); analysis of the rebuttable presumption for child sexual offences in s 97A for NSW.
• Legislation and cases as to when evidence of bad character of an accused is allowed; failure to adduce good character in Xu v The Queen; discussion of the High Court case of Pell v The Queen on the unreasonableness ground of appeal.
• When opinion evidence may be admitted from lay persons or ‘Ad hoc’ experts; differing  procedures and warnings which are required for admission of identification evidence.
• Discussion of discretion to exclude identification evidence in The Queen v Dickman.
• Full discussion and summary of the leading cases on hearsay, exceptions and implied assertions; when “res gestae” evidence is admissible as a hearsay exception or as original evidence.
• Judicial discretion to exclude a voluntary confession; confessions and failure to understand the caution; unfairness discretion in Sindoni v The Queen; distinction between formal and informal admissions; implied admissions in TWR v Western Australia; directions to the jury on lies and post offence conduct.
• Discussion of High Court case of Kadir and Grech v The Queen on illegally obtained evidence."