Mortensen & Reeves on ‘The Common Law Marriage in Australian Private International Law’

Professor Reid Mortensen and Dr Kathy Reeves of the University of Southern Queensland School of Law and Justice have published a new article titled 'The Common Law Marriage in Australian Private International Law'.  The article appears in Volume 20(2) of the Journal of Private International Law.  Here is the abstract:

"The common law marriage is a curiosity in the private international law of marriage in the Commonwealth and Ireland. In some cases, a marriage that is invalid under the law of the place where it was solemnised (lex loci celebrationis) may nevertheless be recognised as valid if it meets the requirements of a common law marriage. These originate in the English canon law as it stood in the eighteenth century and include the central requirement of the parties’ present declaration that they are married. The parties also had to meet the essentials of a Christian marriage as described in Hyde v Hyde (1866): “a voluntary union for life of one man and one woman to the exclusion of all others”.
There are more reported cases on common law marriages in private international law in Australia than any other country. Although its Australian development coincided with that of other countries, in the twenty-first century the Australian common law marriage is now in an unusually amorphous condition. The preconditions for a court to ignore the lex loci have been significantly liberalised. Additional uncertainty in the nature of a common law marriage is created by a combination of repeated misinterpretations of the Marriage Act, the failure to use precedent outlining its requirements and the dismantling of the Hyde definition of marriage in the Same-Sex Marriage Case (2013). The article considers that the common law marriage might still serve a useful purpose in Australian private international law, and how it could better do so."

Ribeiro on ‘Jurors’ perceptions of transgender victims of sexual assault: A literature review of empirical research and policy review of judicial instructions’

Dr Gianni Ribeiro of the University of Southern Queensland School of Law and Justice has published a new article titled 'Jurors' perceptions of transgender victims of sexual assault: A literature review of empirical research and policy review of judicial instructions'.  The article is co-written with Faye T Nitschke and was published in Behavioral Sciences and the Law.  Here is the abstract:

"Sexual assault affects many people of all gender identities, yet most cases do not result in conviction. This may be due to common, inaccurate misperceptions juries hold about how sexual assault is perpetrated and how victims respond to sexual assault. Research has examined misperceptions relating to cisgender victims, yet little is known about the unique misconceptions and stereotypes that may unfairly disadvantage transgender victims or whether courts are attempting to safeguard against them. This article presents a literature review of empirical research on (mock) jurors’ perceptions of transgender victims and a review of judicial instructions about gender identity. We find that empirical research is extremely limited with mixed findings, but many jurisdictions allow for judicial instructions warning jurors against prejudice based on gender identity. Further research is urgently needed to identify common misperceptions jurors may have that are specific to transgender victims to inform legal safeguards and improve justice outcomes."

Radavoi on 'What should communities stipulate in their (macro)social contract with business? Updated CSR commandments for corporations'

Associate Professor Ciprian Radavoi of the University of Southern Queensland School of Law and Justice has published a new article titled 'What should communities stipulate in their (macro)social contract with business? Updated CSR commandments for corporations'.  The article appears in Volume 129 Business and Society Review.  Here is the abstract:

"This article relies on two major business ethics books to propose a decalogue of corporate behavior. Notably, both Donaldson and Dunfee's Ties That Bind (1999) and Kerr et al.'s CSR: A Legal Analysis (2009) tried to avoid the sinuous and inconclusive normative quest for hypernorms of business social responsibility: the former proposed an integrated social contract between business and community, while the latter adopted a positivist approach, looking at existing law of all sorts, national and international, to decant eight principles of CSR. Using a methodological tool from the first book, namely, the macrosocial contract between business and communities, this article updates the list proposed in the second book. As societal expectations evolve in time, emerging principles are included in the amended list, such as meeting tax obligations, refraining from taking advantage of disaster-struck communities, and prioritizing the human in the age of artificial intelligence. The mixed approach (ethical, contractarian, and positivist) allows introducing the 10 principles as “commandments”: initial reasonable content of a macrosocial for business, informed by undisputed ethical principles (hypernorms) and potentially implemented through positive law."

Goding on 'Directors’ Duties, CSR and the Jobkeeper Wage Subsidy Scheme'

Dr Vincent Goding of the University of Southern Queensland School of Law and Justice has published a new article titled 'Directors' Duties, CSR and the Jobkeeper Wage Subsidy Scheme'.  The article appears in Volume 47 of the Melbourne University Law Review.  Here is the abstract:

"This article contributes to the ongoing debate regarding the construction of directors’ duties to act in the best interests of the corporation and their relationship to corporate social responsibility (‘CSR’) and related concepts. It begins by revisiting the neoliberal ideas underpinning the nexus of contracts theory of the corporation as the root of shareholder primacy in Anglo-American corporate governance. Asking whether these theorisations are appropriate in the Australian context and canvassing the evolving interpretation of directors’ duties, this article argues that Australia can still reasonably be said to be a shareholder primacy jurisdiction. Stakeholders’ interests and CSR considerations might be permissible factors in directors’ decision-making, but only derivatively to the interests of shareholders. Using corporate profiteering from the JobKeeper wage subsidy scheme as a case study, this article argues that the outcomes for which the scheme was criticised, and the response of directors to demands to repay unneeded subsidies, are consistent with and legitimated by theory, law and governance principles which maintain shareholder primacy and which might permit but neither compel nor meaningfully encourage socially responsible corporate behaviour. This analysis highlights not only the importance of designing ‘the rules of the game’ to prevent their (lawful) exploitation by corporations, but also the limited effectiveness of our current voluntaristic CSR regime in delivering more conscientious corporate behaviour beyond mere compliance with law."

He on 'Foreign Direct Investment and COVID-19: The Protection of National Security Interests'

Dr Lingling He of the University of Southern Queensland School of Law and Justice has published a new article titled 'Foreign Direct Investment and COVID-19: The Protection of National Security Interests'.  The article appears in Volume 19 of the Journal of Comparative Law.