Gray on 'Public Servants and the Implied Freedom of Political Communication'

 Professor Anthony Gray of the USQ School of Law and Justice has published a new article titled 'Public Servants and the Implied Freedom of Political Communication'.  The article appears in Volume 49(1) of the Federal Law Review.  Here is the abstract:

"The High Court of Australia recently overturned a tribunal decision in favour of a public servant who was dismissed after sending tweets critical of various politicians and government policies. All members of the Court found the relevant provisions were valid and did not infringe the implied freedom of political communication. This article first discusses development of freedom of speech at common law, through development in ideas about governance from a Hobbesian tradition to a Lockean model of representative government. Notions of representative government underpinned earlier High Court decisions on freedom of political communication, reflecting values such as the sovereignty of the people, accountability and informed decisions at election time. The article then considers restrictions on the ability of public servants to contribute to public debate in that light. Scholars and courts elsewhere have recognised the important contribution public servants can make to representative democracy. The recent decision pays insufficient interest to such contributions and is too willing to accept government arguments as to the need to suppress opinion by public servants in the name of an apolitical and independent public service, without considering counter arguments in terms of democracy, and without sufficient evidence of actual or likely interference with government functions. The proportionality analysis undertaken by the court was inadequate in its failure to do so. Whilst the freedom of communication of public servants is not absolute, restrictions must be narrowly confined and fully justified. Neither test was satisfied in this case."

Young on 'Legal Challenges to ICU Triage Decisions in the Covid-19 Pandemic: How Effectively does the Law Regulate Bedside Rationing Decisions in Australia?'

 Professor Simon Young of the USQ School of Law and Justice has co-written (with Tina Cockburn, Lindy Wilmott, and Ben White) a new article titled 'Legal Challenges to ICU Triage Decisions in the Covid-19 Pandemic: How Effectively does the Law Regulate Bedside Rationing Decisions in Australia?'  The article appears in Volume 44(1) of the University of New South Wales Law Journal.  Here is the abstract:

"The COVID-19 pandemic has raised the difficult question of how to ration scarce intensive care resources when a health system is overwhelmed. Despite substantial ethical scholarship addressing these rationing decisions, little is known about the legal position in Australia. This article considers various legal challenges in response to a clinical scenario denying intensive care admission and a ventilator to a critically ill patient with COVID-19. The article considers key challenges in negligence, criminal law, administrative law, human rights law, and under the parens patriae jurisdiction and guardianship legislation, and how they would apply to this scenario. The article concludes that while there are many obstacles to a successful legal challenge, the law can provide important scrutiny and guidance in the design of decision-making processes and triage policies. To adequately protect individual interests, the article supports calls in the ethical literature to make these policies transparent for public scrutiny."

Gray on 'The Evolution from Strict Liability to Fault in the Law of Torts'

 Professor Anthony Gray of the USQ School of Law and Justice has published an important new book titled The Evolution from Strict Liability to Fault in the Law of Torts (Hart Publishing, 2021).  Here is the publisher's summary:

"Gradually, the law of tort has shifted away from a strict-liability approach to one where fault predominates. This book charts important case law documenting this shift. It seeks to understand how and why it occurred. Given that the Rylands v Fletcher decision is typically seen as a prime exemplar of strict liability, it focusses particularly on that case, as part of the historical development of tort law. It considers the intellectual arguments made in favour of strict liability, and for fault-based liability. Having done so, it then focusses on particular areas of the law of tort, including nuisance, defamation and trespass. It is somewhat anomalous that though most would view these as examples of torts of strict liability, fault considerations have become prominent in their application. This presents an uneasy compromise, where torts that are notionally strict in nature are infused with fault considerations, often through exceptions or defences. This book advocates for further development in the law of tort to better reflect a primarily fault-based approach to liability, at least in the common law. This would make the law of tort more coherent."

Economides on 'Itinerant Justice and Proactive Legal Services: Origins, Achievements and Future Directions’

Honorary Professor Kim Economides of the USQ School of Law and Justice has published a new article titled "Itinerant Justice and Proactive Legal Services: Origins, Achievements and Future Directions'.  The article appears in Volume 18(3) of Direito em Movimento, Rio de Janeiro.  Here is the abstract:

"This article examines itinerant justice and proactive legal services serving remote areas and the distinction between these modes of legal service delivery. It examines foreign and historical precedents for mobile legal services and the lessons that emerge from this experience. The article also considers how these legal services should be evaluated and questions their present scope by asking whether in the future there should be a greater emphasis on collective legal action, or structural, as well as individual casework. Finally, the article looks at future planning and considers specific reforms that might enhance their contribution, particularly for those in remote or Indigenous communities." 

Mortensen on 'The Clergy of Liberalism: Lawyers’ Character, Virtue and Moral Education in Pluralized Societies'

 Professor Reid Mortensen of the USQ School of Law and Justice has published a new paper titled 'The Clergy of Liberalism: Lawyers' Character, Virtue, and Moral Education in Pluralized Societies'.  The paper appears as a chapter in John Witte Jr and Michael Welker (eds), The Impact of Law on Character Formation, Ethical Education, and the Communication of Values in Late Modern Pluralistic Societies (Evangelische Verlagsanstalt, Leipzig, 2021).  

Call for Papers: "Arbiters of Justice: Historical Studies of Southern Queensland Lawgivers" Colloquium

 

The Colloquium: The Law, Religion, and Heritage Research Program Team at the University of Southern Queensland is hosting a colloquium titled Arbiters of Justice: Historical Studies of Southern Queensland Lawgivers.         

Date:    26 November 2021

            Venue: USQ Ipswich Campus, Room I-109

            Note: Physical attendance is warmly encouraged, but a Zoom option will be available.

Invitation: Academics, members of the legal community, local historians, and anyone with an interest in the topic are invited to participate.  The colloquium’s reference to “lawgivers” is intended broadly to encompass a wide range of people responsible for making and administering the law, including Aboriginal and Torres Strait Islander elders, colonial governors, and notable jurists.  The link these individuals have to southern Queensland can take different forms, and will also be interpreted flexibly.  Contributions may include biographical studies, analyses of important decisions, reflections on the role that religion or spirituality played in the lawgiver’s life, and more.

What is required to participate?  Presentations should be 15-20 minutes to duration, with time for questions to follow after.  Presentations should be supported by a completed paper or work-in-progress suitable for distribution to other participants.  Should sufficient numbers of quality papers be received, the opportunity to contribute to an edited collection may become available after the colloquium.

Are you interested in contributing? Please register your interest in presenting at the colloquium by contacting Dr. Jeremy Patrick <jeremy.patrick@usq.edu.au>, Convenor of the Law, Religion, and Heritage Research Program Team. You are asked to submit a short (100-250 word) precis of your planned presentation by 1 October 2021.

Are you interested in attending?  Please RSVP with Dr Jeremy Patrick <jeremy.patrick@usq.edu.au> by 1 October 2021.  There is no cost to attend.

Gray on 'The Legality of Denial of Service to Same Sex Partners and Organisations: Developments in the United Kingdom, United States and Australia’

 Professor Anthony Gray of the USQ School of Law and Justice has published a new article titled 'The Legality of Denial of Service to Same Sex Partners and Organisations: Developments in the United Kingdom, United States and Australia’.  The article appears in Volume 17(2) of the Canberra Law Review.  Here is the abstract:

"This paper considers United Kingdom and United States high court developments in relation to refusal of service to a same-sex individual and same sex couple, based on religious grounds. It considers how similar issues would likely be resolved under current anti-discrimination legislation in Australia."