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."