Sundra-Karean on 'Judicial Power in Transplanted Common Law Jurisdictions: Malaysia's Continuing Struggle - One Step Forward, Two Steps Back'

Dr Vanitha Sundra-Karean, a Senior Lecturer in the USQ School of Law and Justice, has published a new article in the April 2020 issue of the prestigious journal Public Law.  The article is 'Judicial Power in Transplanted Common Law Jurisdictions: Malaysia's Continuing Struggle - One Step Forward,

Two Steps Back'.

Gray on "Strict Liability in the Law of Defamation"

Professor Anthony Gray of the USQ School of Law and Justice has published a new article titled "Strict Liability in the Law of Defamation."  The article appears in volume 27(2) of the Tort Law Review.  Here is the abstract:

"The Standing Committee of Attorneys-General is currently considering substantial reform to Australia’s existing defamation laws. In earlier articles, I have suggested reform is required in relation to the multiple publication rule, and in relation to the liability of tech companies in relation to defamation. In this article, a more radical change is suggested. Defamation is traditionally a tort of strict liability, not requiring proof of fault on the defendant’s part. Strict liability has a rich history in the law of tort, but has progressively become more isolated, as fault-based negligence has become more dominant. While strict liability made sense historically, in terms of the goals of the law of tort, its rationales have weakened over time as the tort landscape has changed. Defamation law has sought to accommodate, to some extent, fault-based questions through the use of convoluted defences. It is argued here that it would be simpler to define the tort in terms of fault in a reformed law of defamation, rather than introduce it through the back door of defences to a tort of ostensible strictness. American law provides a partial, but not complete, guide in this process."

Patrick on "Faith or Fraud? Fortune-telling, Spirituality, and the Law"

Dr. Jeremy Patrick of the USQ School of Law and Justice has published a new book with the University of British Columbia Press.  The book is titled Faith or Fraud? Fortune-telling, Spirituality, and the Law.  Here is the publisher's description:

The growing presence in Western society of non-mainstream faiths and spiritual practices poses a dilemma for the law. If a fortune teller promises to tell the future in exchange for cash, and both parties believe in the process, has a fraud been committed? Should someone with a potpourri of New Age beliefs be accorded the same legal protection as a devout Catholic?

Building on a thorough history of the legal regulation of fortune-telling laws in four countries, Faith or Fraud examines the impact of people who identify as “spiritual but not religious” on the future legal understanding of religious freedom. Traditional legal notions of religious freedom have been conceived and articulated in the context of monotheistic, organized religions that impose moral constraints on adherents. Jeremy Patrick examines how the law needs to adapt to a contemporary spirituality in which individuals select concepts drawn from multiple religions, philosophies, and folklore to develop their own idiosyncratic belief systems.

Faith or Fraud exposes the law’s failure to recognize individual spirituality as part of modern religious practice, concluding that the legal conception of religious freedom has not evolved to keep pace with religion itself.

Law and religion scholars in the United States, Canada, and Australia will find much to recommend this work, which also contains valuable material for British law and religion specialists and sociologists of religion.

Gray on 'Sponsor Pressure to Discipline Employees Who Have Expressed Unwelcome Views and Reform of the Business Torts in Australia'

Professor Anthony Gray of the USQ School of Law and Justice has published an article titled 'Sponsor Pressure to Discipline Employees Who Have Expressed Unwelcome Views and Reform of the Business Torts in Australia'.  The article appears in Volume 47(5) of the Australian Business Law Review.  Here is the abstract: 

"This article focuses on a suggestion that the current litigation involving footballer Israel Folau may involve an action by him against sponsors of his employer, if it could be shown that there was some link between sponsor concerns about public comments made and Mr Folau’s eventual termination. The article cannot answer the question specifically about Mr Folau’s case, but the suggestion raises important questions about Australia’s current regime of business torts. The article considers two important questions in this regard. First, whether Australian business law should recognise a tort of unlawful, intentional interference with trade or business, and secondly, if it does, how that tort would sit with the existing business torts of inducing breach of contract, conspiracy and intimidation. The article suggests that Australian business law should adopt the tort of unlawful, intentional interference with trade or business, and that an Australian court should also take the opportunity to subsume existing business law torts within this new tort, to simplify the law in this regard."

Hemming on "In search of a model provision for rape in Australia"

Dr Andrew Hemming, a Senior Lecturer in Law at the USQ School of Law and Justice, has published an important new article.  'In search of a model provision for rape in Australia' appears in Volume 38(1) of the University of Tasmania Law Review and can be accessed through USQ e-Prints.  Here is the abstract:

"The purpose of this article is to set out a comprehensive model provision for the crime of rape (or the equivalent offence) that can be incorporated into all Australian criminal jurisdictions irrespective of whether the particular legislation can be broadly categorised as being a code or a statute. This is in part achieved by defining the specified fault elements, such as knowledge and recklessness, within the provision, thereby overcoming the lack of such definitions in the entire code or statute in some jurisdictions. Given that only the Australian Capital Territory and the Northern Territory have adopted Chapter 2 of the Criminal Code 1995 (Cth), which contains all the general principles of criminal responsibility that apply to any offence, uniform criminal law reform in Australia has stalled. One objective of this article is to show that it is possible to reform key criminal offences in a uniform manner. Apart from addressing the current inconsistencies in rape provisions in Australia, the proposed model provision is also designed to clarify the vexed question of whether the defendant reasonably believed the victim was consenting. In this way, it is hoped that some of the well-known difficulties in securing a conviction for rape — where it is often one person’s word versus another’s against a standard of proof of beyond reasonable doubt — may be reduced through the comprehensiveness and clarity of the statutory language employed in the model provision."

Gray on "The Punishment of Journalists for Contempt for Refusing to Reveal Their Sources in Court"

Professor Anthony Gray of the USQ School of Law and Justice has published a new article in Volume 29(2) of the Journal of Judicial Administration.  The article is titled "The Punishment of Journalists for Contempt for Refusing to Reveal Their Sources in Court".  Here is the abstract:

"Recently, the Australian Federal Police conducted raids at the home and office of two journalists. The validity of such action is currently before the courts. It is argued here that it is possible that the High Court might find that action that effectively forces a journalist to reveal their sources breaches the implied freedom of political communication. Journalists play a pivotal role in permitting the public to hold governments accountable in our democratic system of government. Laws that effectively force them to betray their confidential sources may well limit the supply of information to journalists, in turn curbing the flow of information to voters. Courts in other jurisdictions have found that raids on journalists’ homes and offices infringe freedom of expression in a way that cannot be justified in a democracy."

Gray on ‘The Lawfulness of the Dismissal/Termination of an Employee Who Has Expressed “Unwelcome” Religious Views’

Professor Anthony Gray of the USQ School of Law and Justice has published a new article titled ‘The Lawfulness of the Dismissal/Termination of an Employee Who Has Expressed “Unwelcome” Religious Views’.  The article appears in Volume 47(4) of the Australian Business Law Review.  Here is the abstract:

"The question of the lawfulness of the termination of an employee in relation to their social media activity has been the subject of intense media interest in recent months. This article considers several legal arguments on point, including the possible question of unlawful termination in the Fair Work legislation, arguments about discrimination, breach of contract and other arguments. It concludes that, as the law presently stands, it would generally be difficult for an employee who has terminated in relation to unwelcome social media activity to successfully bring legal action against their employer, subject to a consideration of the specific terms of the employment agreement and facts of any given case. It considers relevant case law in other jurisdictions, accepting that these occurred within a different legal framework."