Martin on 'What is Happening on Keswick Island? Spotlight on Queensland Island Governance Arrangements'

Associate Professor Rhett Martin of the University of Southern Queensland School of Law and Justice has published a new article titled 'What is Happening on Keswick Island? Spotlight on Queensland Island Governance Arrangements' in Volume 40 of the Environmental and Planning Law Journal.  Here is the abstract:

"This article focuses on planning and environmental law issues arising from management of Keswick Island (Keswick), located near Mackay off the Queensland coast. At issue is the extent to which head lease obligations have been performed by the head lessee, whether environmental and planning laws and lease conditions have been properly complied with and, where compliance is deficient, whether duly enforced by the Queensland Government, and the impact this has on island residents, including sublessees. Various questions arise about the transfer of the head lease to the current head lessee on Keswick, Oasis Forest Ltd, and their governance of the island, and relationship with sublessees. These questions are relevant to Queensland, and federal environmental and planning laws, administrative decision-making on Queensland lsland governance, including how head lessees on Queensland islands are chosen, and the future of Queensland Island tourism and governance."

Crowe on 'Is an Existentialist Ethics Possible?'

Professor Jonathan Crowe of the University of Southern Queensland School of Law and Justice has published a paper titled 'Is an Existentialist Ethics Possible?'  The paper appears in The Ultimate Guide to Existentialism (Philosophy Now, 2024).  Here is the publisher's description of the book:

"A collection of the best past articles from Philosophy Now on existentialism, the ever-relevant philosophical movement of Kierkegaard, Sartre, Camus, and Simone de Beauvoir. The Ultimate Guide to Existentialism is divided into five chapters: Foundations; Freedom; Culture; Ethics; and Time, Death & The Absurd. A valuable and entertaining introduction to the key concepts and the main thinkers. Full colour, 116 pages."

Mortensen and McKibben on 'Family Provision Across Borders'

Professor Reid Mortensen and Dr Sarah McKibben have published a new article titled 'Family Provision Across Borders'.  The article appears in Volume 46(1) of the Sydney Law Review.  Here is the abstract:

"It takes little for family provision claims to cross borders, whether state or national. The property may be located in different places — other states or countries; the personal representatives, claimants or beneficiaries under the will may be from different places; or the deceased may have had a strong personal connection with another place. Any one of those cross-border considerations raises questions of a court’s jurisdiction to deal with a family provision application, or of the law that will apply to it. In this article, we give an account of the principles of private international law — which in this area also apply in interstate matters — that affect family provision claims in Australia. In doing so, we explore recurrent complications with these cross-border family provision claims, including those arising under the cross-vesting scheme and in the federal jurisdiction. While we consider that the current equitable principles of choice of law remain best placed to address how provision should be made from different forms of property, reforms must be made to the equitable principles of jurisdiction if complications raised by the cross-vesting scheme and the possible exercise of federal jurisdiction in family provision claims are to be overcome."

Crowe on 'Natural Law With and Without God'

Professor Jonathan Crowe of the University of Southern Queensland School of Law and Justice has published a new article titled 'Natural Law With and Without God'.  The article appears in Volume 4 of the Australian Journal of Law and Religion.  Here is the abstract:

"There is a common perception of natural law theory as characteristically (if not necessarily) theistic. This is sometimes presented as a drawback by secular critics of natural law thinking. Natural law authors themselves differ on the role of theism within their theories. Some have argued that natural law theory presupposes theism, while others have sought to give their views a secular basis. This article explores the relationship between natural law theory and theism. I begin by defining the characteristic features of the natural law outlook. I show that these core aspects of natural law thought can be rendered consistent with both theistic and non-theistic worldviews. However, these worldviews may yield different responses to some fundamental questions about natural law, such as where natural law comes from; how (and to what extent) humans can know about natural law; why humans should follow natural law; and whether natural law changes. I explore the consequences for natural law theories of theistic and non-theistic answers to these questions. I then offer some reasons for thinking that a version of theism incorporating what I term ‘qualified teleological perfectionism’ provides the most coherent foundation for the natural law outlook."

Martin on ‘Applying the Precautionary Principle to Hidden Collapse'

Associate Professor Rhett Martin of the University of Southern Queensland School of Law and Justice has co-authored (with David Lindenmayer) a new article titled 'Applying the Precautionary Principle to Hidden Collapse'.  The article appears in Volume 16 of Sustainability.  Here is the abstract:

"There is growing evidence around the world of serious decline in biodiversity requiring urgent application of precautionary risk management. A better regulatory regime for precautionary management of long-term risk is now an urgent priority. This article addresses the prioritization of long-term risk management by examining risk management of ecosystems that may be experiencing hidden collapse. Hidden collapse refers to the existence of environmental indicators indicative of future collapse of forests, even though the forest appears intact and not at risk of ecosystem collapse. Professor David Lindenmayer and Dr Chloe Sato (Lindenmayer) first identified hidden collapse in 2018 in Mountain Ash forests of Victoria, Australia. The risk of hidden collapse represents a long-term environmental threat and is a potential trigger for application of the precautionary principle (principle). Implicit in hidden collapse are two preconditions for application of the principle; the risk of a serious or irreversible environmental threat, and the existence of scientific uncertainty about the nature of the risk. Despite hidden collapse satisfying these essential preconditions for applying the principle, decision makers did not apply it in respect hidden collapse of Mountain Ash forests in Victoria. This article considers the current status of the principle in regulation and how it can be adjusted to address long term environmental risk."

Crowe on ‘Harmonising Sexual Consent Law in Australia: Goals, Risks and Challenges'

Professor Jonathan Crowe of the University of Southern Queensland School of Law and Justice has co-written a new paper titled 'Harmonising Sexual Consent Law in Australia: Goals, Risks and Challenges'.  The paper has been published as an article in Volume 49 of the Monash University Law Review.  Here is the abstract:

"The 2021 Australian of the Year, Grace Tame, sought to persuade ‘all governments across Australia to adopt the same definitions of consent, grooming, the age of a child, and sexual intercourse’. However, sexual consent law harmonisation in Australia faces formidable obstacles. We argue that an affirmative consent standard represents the appropriate goal of harmonisation, while potential risks include levelling-down reforms and undermining the role of competitive federalism. We identify four main obstacles to legal harmonisation, including strong advocacy coalitions, jurisdictional differences, historical failures and political disincentives. We conclude these obstacles do not mean harmonisation is undesirable or impossible, but it would require prolonged attention, resources and political will, as well as a nuanced understanding of the difficulties involved."

Radavoi on 'Ante-factum Legislative General Vaccination Mandates, as a Solution to Legal Hypocrisy in Pandemics'

Associate Professor Ciprian Radavoi of the University of Southern Queensland School of Law and Justice has published a new article titled 'Ante-factum Legislative General Vaccination Mandates, as a Solution to Legal Hypocrisy in Pandemics'.  The article appears in Volume 16 of the World Medical and Health Policy.  Here is the abstract:

"With the next pandemic likely not far off, the debate over the suitability of a broad, general vaccination mandate (GVM) goes on. This essay proposes a novel argument in favor of GVM—one based on the reality that left to its own devices, executive power, from governments to the local administration and even corporations, tends anyway to impose on the nonvaccinated restrictions of such harshness that vaccination becomes de facto mandatory. The most coercive measure was banning the nonvaccinated from the workplace, which was done—despite the fundamental importance of the right to work to the human being—without any genuine examination of the elements of balancing (necessity, proportionality) required whenever a right is limited by the authorities. Mandating vaccination de jure, by parliaments, before the next pandemic strikes would have the merits of avoiding legal hypocrisy and would be achieved following national public debate and a thorough process of balancing the rights at stake."

Crowe on 'The Evolution of Natural Law'

Professor Jonathan Crowe of the University of Southern Queensland School of Law and Justice has published 'The Evolution of Natural Law'.  The paper appears as a chapter in the edited collection Research Handbook on Legal Evolution (edited by Wojciech Zaluski, Sacha Bourgeois-Gironde, and Adam Dyrda).  Here is the abstract:

"This chapter examines the evolution of natural law - not natural law ideas or theories, but natural law itself. The chapter begins by exploring how the normative inclinations by which humans identify the content of natural law are shaped and guided by social circumstances and practices. It then discusses two specific mechanisms by which social expressions of natural law evolve: communal norms and value commitments. I argue that these processes play a central role in the development of natural law and should be recognised as such within natural law theories."

Gray on ‘Freedom of Speech in the Woke Era: Critical Race Theory and State Neutrality’

Professor Anthony Gray, recently of the University of Southern Queensland School of Law and Justice, has published a new article titled 'Freedom of Speech in the Woke Era: Critical Race Theory and State Neutrality'.  The article appears in Volume 12 of the Western Australia Jurist.  Here is the abstract:

"This chapter advocates for freedom of speech against the kind of post-modern critical race theory that is said to justify serious restrictions on speech relating to race.  A liberal democratic society is fundamentally premised on freedom of speech.  This should be a neutral political principle, espoused by all sides of politics.  And yet, politicians of all political persuasions are being seduced by the woke shutdown, de-platforming vibe.  This is undemocratic and those who cherish democratic, free speech principles must fight back with strong speech."

Hemming on 'Why Australia Should Adopt the English Model for Propensity and Bad Character Evidence: Re-balancing the Criminal Justice System in Favour of the Victims of Crime'

Associate Professor Andrew Hemming of the University of Southern Queensland School of Law and Justice has co-written (along with Emma Hudson) a new article titled 'Why Australia Should Adopt the English Model for Propensity and Bad Character Evidence: Re-balancing the Criminal Justice System in Favour of the Victims of Crime'.  The article appears in Volume 47(2) of the Criminal Law Journal.  Here is the abstract:

"In recent years, Australian jurisdictions have reformed the admissibility of propensity evidence, most particularly for sexual offences against children, but have left the admissibility of bad character evidence untouched. This article argues that Australia should follow the English example and comprehensively reform both propensity and bad character evidence by adopting the seven gateways model found in s 101 of the Criminal Justice Act 2003 (England and Wales), which makes it easier for the Crown to adduce propensity and bad character evidence into court. Australian law reform bodies and legal academics have virtually ignored this revolutionary development in England, which the authors argue is a major oversight that needs to be addressed in the context of re-balancing the criminal justice system in favour of the victims of crime."

Gray on ‘Viability of a Psychiatric Injury Claim for Bystanders Who Witnessed and Rescuers Who Attended the Sea World Helicopter Accident’

Professor Anthony Gray, recently of the University of Southern Queensland School of Law and Justice, has published a new article titled ‘Viability of a Psychiatric Injury Claim for Bystanders Who Witnessed and Rescuers Who Attended the Sea World Helicopter Accident’.  The article appears in Volume 98(2) of the Australian Law Journal.  Here is the abstract:

"This article considers the extent to which an observer or a rescuer who were caught up in the Sea World Helicopter Accident might have a viable claim for psychiatric injury they can demonstrate to have been caused by what they saw on that day. This is on the assumption that at least some finding of fault is made against a particular individual or organisation in relation to the accident."

Ribeiro on ‘The impact of misinformation presented during jury deliberation on juror memory and decision-making’

Dr Gianni Ribeiro of the University of Southern Queensland School of Law and Justice has co-written a new journal article titled 'The impact of misinformation presented during jury deliberation on juror memory and decision-making'.  The article appears in Volume 15 of Frontiers in Psychology.  Here is the abstract:

"When deliberating, jurors may introduce misinformation that may influence other jurors’ memory and decision-making. In two studies, we explored the impact of misinformation exposure during jury deliberation. Participants in both studies read a transcript of an alleged sexual assault. In Study 1 (N = 275), participants encountered either consistent pro-prosecution misinformation, consistent pro-defense misinformation, or contradictory misinformation (pro-prosecution and pro-defense). In Study 2 (N = 339), prior to encountering either pro-prosecution or pro-defense misinformation while reading a jury deliberation transcript, participants either received or did not receive a judicial instruction about misinformation exposure during deliberation. Participants in both studies completed legal decision-making variables (e.g., defendant guilt rating) before and after deliberation, and their memory was assessed for misinformation acceptance via recall and source memory tasks. In Study 1, misinformation type did not influence legal decision-making, but pro-prosecution misinformation was more likely to be misattributed as trial evidence than pro-defense or contradictory misinformation. In Study 2, pro-defense misinformation was more likely to be misattributed to the trial than pro-prosecution misinformation, and rape myths moderated this. Furthermore, exposure to pro-defense misinformation skewed legal decision-making towards the defense’s case. However, the judicial instruction about misinformation exposure did not influence memory or decision-making. Together, these findings suggest that misinformation in jury deliberations may distort memory for trial evidence and bias decision-making, highlighting the need to develop effective safeguards for reducing the impact of misinformation in trial contexts."

Copley on 'A right to adequate housing: Translating “political” rhetoric into legislation'

Dr Julie Copley, a Lecturer at the University of Southern Queensland, has published a new article titled 'A right to adequate housing: Translating "political" rhetoric into legislation'.  The article appears in Volume 31 of the Australian Property Law Journal.  Here is the abstract:

"In Australia, calls for a statutory right to adequate housing predate the enactment of the current Australian human rights statutes, with recent recommendations made by a Victorian parliamentary committee and the Australian Human Rights Commission. In effect, the recommendations are for legislative processes translating the politics of homelessness and housing inadequacy, in an ongoing way, into practical statutory measures. To build a framework to inform and assist the legislative processes, this article analyses contemporary property theory, including about a right to adequate housing, and legal, political and constitutional theory directed to the positivisation of human rights. As the core of a right to housing is a place to live in security, peace and dignity, an essential component of a framework will be the functioning in Australian jurisdictions of human dignity, the source from which all other human rights are derived."

Zhao on 'Contemporary Australian Tort Law'

Dr Bob Zhao, a Senior Lecturer at the University of Southern Queensland School of Law and Justice, has co-written a textbook titled Contemporary Australian Tort Law (Cambridge University Press, 2nd edition, 2024).  Here is the publisher's description:

"Tort law is a dynamic area of Australian law, offering individuals the opportunity to seek legal remedies when their interests are infringed. Contemporary Australian Tort Law introduces the fundamentals of tort law in Australia today in an accessible, student-friendly way. This edition retains the logical coverage of key aspects of tort law and has been thoroughly updated to cover recent case law and legal developments. The chapter on defamation has been comprehensively updated to reflect recent amendments to uniform legislation and its application in common law. Self-assessment tools throughout the text encourage students to test and apply their knowledge of key concepts. These features include case questions and review questions throughout each chapter, as well as longer end-of-chapter hypothetical problems which consolidate students' application of key concepts to realistic contemporary scenarios. Written by a team of teaching experts, Contemporary Australian Tort Law is an engaging resource for students new to studying tort law."

Crowe on 'Human Rights in the Natural Law Tradition'

Professor Jonathan Crowe of the University of Southern Queensland School of Law and Justice has published a new paper titled 'Human Rights in the Natural Law Tradition'.  The paper appears as a chapter in an edited collection titled Beyond Classical Liberalism: Freedom and the Good (Routledge, 2024).  Here is the paper's abstract:

"This chapter explores the distinctive features of natural law approaches to explaining and defending human rights. Human rights are not a basic concept in the natural law outlook. Rather, they are subsidiary to the more fundamental notion of intrinsic human goods. Nonetheless, the natural law outlook offers a straightforward and compelling way of deriving human rights from intrinsic goods. This derivation proceeds by showing how goods generate reasons for action, which in turn produce duties toward others. These duties then correlate to rights.

The chapter elaborates and defends a specific version of the natural law argument for human rights outlined above. It then explores some advantages of the natural law approach to human rights, showing how it defuses criticisms of rights discourse advanced from both within and outside the natural law tradition. The priority of goods over duties, and duties over rights, in the natural law outlook offers an antidote to the individualistic and positional tendencies of rights claims in political arenas. It also helps to ensure that rights claims do not obscure or override the primary role of the common good in shaping political obligations."

Collins and Gray on 'SDCV v Director-General of Security: Procedural Fairness and the Ability to Decide a Matter Based on Secret Evidence Not Disclosed to a Party or their Legal Team’

Professor Pauline Collins and Professor Anthony Gray of the University of Southern Queensland School of Law and Justice have published a new article titled: 'SDCV v Director-General of Security: Procedural Fairness and the Ability to Decide a Matter Based on Secret Evidence Not Disclosed to a Party or their Legal Team’.  The article appears in Volume 98(1) of the Australian Law Journal.  Here is the abstract:

"With changes afoot in the judges sitting on the High Court later in 2023, this article addresses a hope for a future change enabling greater protection of fundamental rights of an individual to know the accusations and evidence against them. The decision in 'SDCV', by a slim majority of one, validated the challenged law in section 46(2) of the 'Administrative Appeals Tribunal Act 1975' (Cth). This precluded the right of SDCV or his legal team from knowledge of the evidence against him. This article documents the decision and reasoning of the High Court in this case. It sets forth the basis for concern in such national security situations."

Hemming on 'Criminal Procedure in Australia'

Associate Professor Andrew Hemming of the University of Southern Queensland School of Law and Justice has co-authored the third edition of Criminal Procedure in Australia (LexisNexis, 2024).  Here is the publisher's summary:

"This important book combines commentary with primary sources to provide a contextualised approach to the legal principles underpinning criminal procedure in Australia. It offers a unified and comprehensive analysis of the law relating to policing, criminal prosecutions, pretrial and trial issues, sentencing and criminal appeals. In addition, the book examines the extensive Commonwealth, state and territory legislation and case law in the fields of police investigation and Crown prosecutor’s powers and duties across all jurisdictions.

The third edition is fully revised and extensively updated, with:

• up-to-date cases on criminal procedure, including:
         o Pell v The Queen (HCA 2020: unreasonableness ground of appeal)
         o R v Rolfe (HCA 2021: police immunity)
         o Director of Public Prosecutions (NSW) v Greenhalgh (NSWSC 2022: meaning of ‘to use such force as is reasonably necessary’)
         o Roy v O’Neill (HCA 2020: permission to enter upon premises)
         o Smethurst v Chief Commissioner of Police (HCA 2020: unlawful search)
         o Zhang v Commissioner of Police (HCA 2021: destruction or return of seized and copied material)
         o Bradley v Senior Constable Chilby (NSWSC 2020: prosecutor’s duty of disclosure)
         o Edwards v The Queen (HCA 2021: prosecutor’s duty of disclosure)
         o Nguyen v The Queen HCA 2020: prosecutor’s duty of fairness)
         o State of NSW v Robinson (HCA 2019: wrongful arrest)
         o GBF v The Queen (HCA 2020: right to silence)
         o McKell v The Queen (HCA 2019: judge’s summing up)
         o Hoang v The Queen (HCA 2022: juror misconduct)
         o Hofer v The Queen (HCA 2021: appeals)
         o Strbak v The Queen (HCA 2020: right to silence in sentencing)
• new legislation on police powers, bail and mandatory sentencing
• new commentary on legal principles and policy
• the latest data on rates of victimisation, police and prison detention, hyperincarceration of First Nations people and deaths in custody.

This comprehensive and accessible book is of practical assistance to practitioners, police, prosecutors and anyone involved or interested in the criminal prosecution process, while the contextualised and critical approach to legal doctrine provides academics, students and researchers with reliable guidance in this complex area.

Features
• Provides a principles approach to develop understanding of the area
• Contextual discussion supports student learning
• Comparative coverage across Australian Jurisdictions"

Timoshanko on ''An Empirical Study of Lawyers’ Capability to Adapt to Disruption in Queensland, Australia’

Dr Aaron Timoshanko of the University of Southern Queensland School of Law and Justice has published a new article titled 'An Empirical Study of Lawyers' Capability to Adapt to Disruption in Queensland, Australia'.  The article, co-written with four others, appears in Volume 31(1) of the International Journal of the Legal Profession.  Here is the abstract:

"An online survey of 261 Queensland legal practitioners working in sole, micro, small or medium-sized law firms provides valuable insights into their capability to successfully navigate disruption like that experienced during COVID-19. Our results indicated that respondent lawyers demonstrated progressiveness, openness and willingness to engage with innovative approaches, including technology, to build greater capacity within their firms. However, the results from the research identified several overlapping challenges faced by respondents that reduced their capability to adapt to disruption, including being time-poor and difficulty obtaining impartial and trustworthy information and training about emerging forms of disruption."

Crowe on 'Nutshell: Legal Theory'

Professor Jonathan Crowe of the University of Southern Queensland School of Law and Justice has written the fourth edition of Nutshell: Legal Theory (Thomson Reuters, 2023).  Here is the publisher's summary:

"The essence of the law...
Lawbook Co. Nutshells are the essential revision tool: they provide a concise outline of the principles for each of the major subject areas within undergraduate law.
Written in clear, straight-forward language, the authors explain the principles, and highlight key cases and legislative provisions for each subject.
Nutshell: Legal Theory is aimed primarily at students encountering legal theory for the first time or seeking a concise summary of the area for revision purposes. The third edition contains a new chapter on critical reasoning. Several other parts of the book have been revised and updated to reflect recent developments, including new suggestions for further reading."

Timoshanko on ‘A New Sheriff in Town? Section 596A and Shareholders’ Newfound Powers’

Dr Aaron Timoshanko, a Senior Lecturer in the University of Southern Queensland School of Law and Justice, has published a new article titled 'A New Sheriff in Town? Section 596A and Shareholders' Newfound Powers'.  The article appears in Volume 51 of the Australian Business Law Review.  Here is the abstract:

"In the case of Walton v ACN 004 410 833 Ltd (in liq) (Walton), the High Court of Australia interpreted s 596A of the Corporations Act 2001 (Cth) in a way that benefits shareholders and former shareholders. Before this ruling, it was believed that examining company officers could only be done for the benefit of the company, its creditors, or contributories. However, post-Walton, eligible applicants, including shareholders and former shareholders, can now examine certain company officers about the examinable affairs of the company for their own benefit. This includes uncovering information about misconduct to potentially reclaim financial losses. As a result, there may be an increase in applications for eligible applicant status received by Australian Securities and Investments Commission and an overall increase in the enforcement of the Corporations Act."

Radavoi on ‘True Justice through Deep Listening on Country: Decolonising Legal Education in Australia'

Associate Professor Ciprian Radavoi of the University of Southern Queensland School of Law and Justice has co-authored a new article titled 'True Justice through Deep Listening on Country: Decolonising Legal Education in Australia'.  The article is written with Susan Bird and John Rawnsley, and appears in Volume 19(4) of AlterNative: An International Journal of Indigenous Peoples.  Here is the abstract:

"This article examines the impact of True Justice, a unique continuing legal education programme introduced in 2022 to increase cultural competency in legal practitioners. The programme achieves its purpose via the incorporation of First Nations principles and pedagogies, taking participants beyond the university classroom to learn deep listening on Country. The feedback from participants in the programme in April and May 2022 reveals the powerful experiences that are possible when the university classroom is abandoned in favour of place-based, trauma-informed learning. Incorporating not only First Nations perspectives but also pedagogies is particularly important in the legal profession, where, if these are ignored, practitioners and educators risk reproducing colonial models."