Collins on 'Military Operation and Engagement in the Domestic Jurisdiction: Comparative Call-out Laws'

Professor Pauline Collins of the University of Southern Queensland School of Law and Justice has co-edited (with Rosalie Arcala Hall) a new book titled Military Operation and Engagement in the Domestic Jurisdiction: Comparative Call-out Laws (Brill, 2022).  Here is the publisher's description:

"This book scrutinises the call-out of the military in the domestic domain in a selection of 13 countries. Nation-states vary in their political-legal structures and all have their own history in the use of military personnel in domestic matters. Three recent events have resulted in increased domestic military deployment and have been experienced in most countries. In the security domain, there is the rise of Islamic State and increasing acts of terrorism, resulting in military involvement in policing. The other two have been increased humanitarian needs: the COVID-19 pandemic and the widespread flooding and fires following the changes in climate. These have brought increasing military activity domestically, even in established democracies. This comparative analysis incorporates historical developments and provides a rich multidisciplinary approach from political and social scientists to lawyers and military personnel."

In addition to co-writing the book's preface, Collins also contributed one of the chapters: 'Calling Out Defence Personnel in Civilian Security Matters in Australia'.

Mortensen on 'Tort Jurisdiction'

Professor Reid Mortensen of the University of Southern Queensland School of Law and Justice has published a book chapter titled 'Tort Jurisdiction'.  The chapter appears as part of Paul Beaumont and Jayne Holliday (eds), A Guide to Global Private International Law (Bloomsbury [Hart] Publishing, London, 2022).

Patrick on 'Path Dependency, the High Court, and the Constitution'

Dr Jeremy Patrick, a Lecturer in the University of Southern Queensland School of Law and Justice, has published a book chapter on 'Path Dependency, the High Court, and the Constitution'.  The chapter appears in Sarah McKibbin, Jeremy Patrick and Marcus Harmes (eds), The Impact ofLaw’s History: What’s Past is Prologue (Springer, 2022).  Here is the abstract:

"Path dependence is a concept that originally arose in the field of economics before gaining currency with political scientists and historians. The essence of path dependency is that temporality matters: once a decision is made, it often becomes “locked-in” and persists despite the existence of more efficient or otherwise better alternatives that could become apparent later. The tentative hypothesis advanced here is that the concept of path dependency is useful for understanding why some doctrines of Australian constitutional law have changed dramatically since first developed while others remain largely the same. Examples of one arguably path-dependent line of doctrine and one arguably non-path-dependent line of doctrine are discussed and analysed to demonstrate the possibilities and limitations of the theory."

Hemming on 'Under What Circumstances is the Shield Against Self-incrimination Lowered in a Civil Action?'

 Associate Professor Andrew Hemming of the University of Southern Queensland School of Law and Justice has published a new article titled 'Under What Circumstances is the Shield Against Self-incrimination Lowered in a Civil Action?'  The article appears in Volume 9(2) of the Lincoln Memorial University Law Review.  Here is the abstract:

"The case of Pennsylvania v Cosby has brought into sharp relief the question of what criteria apply in determining whether a defendant in a civil action can definitively rely on a District Attorney’s purported statement that no further criminal action will be taken regarding the complaint in question. It is settled law that a defendant in a civil action faces the possibility of perjury charges for not telling the truth once the shield of the constitutionally enshrined Fifth Amendment right against self-incrimination is lowered by virtue of termination of criminal prosecution on the same facts. This article considers how best a defendant in a civil action can be protected against the vagaries of a change in District Attorney who, within the Statute of Limitations, decides the original assurance by a previous District Attorney that no prosecution would be forthcoming was not binding, and consequently evidence gathered in the civil action could be used in a subsequent criminal trial. The dilemma facing defendants is that they may be offered a deal by the District Attorney, whereby criminal charges will be dropped provided defendants give a full disclosure undertaking in a civil action brought by the complainant who is seeking damages. This reflects the breadth of prosecution deals upon which defense attorneys need to be able to rely, otherwise the criminal justice system would be overwhelmed by a significant increase in the number of trials. Such a prospect raises the question of whether a defendant’s best course of action is to claim the Fifth Amendment right in the civil action until the court rules that the District Attorney’s assurance of no prosecution is absolute and binding on his or her successors."

McNamara on ‘The Good, the Bad and the Ugly: A Short History of Biosecurity Regulation in Australia’

Professor Noeleen McNamara of the University of Southern Queensland School of Law and Justice has published a book chapter titled 'The Good, the Bad and the Ugly: A Short History of Biosecurity Regulation in Australia'  The chapter appears in Sarah McKibbin, Jeremy Patrick and Marcus Harmes (eds), The Impact ofLaw’s History: What’s Past is Prologue (Springer, 2022).  Here is the abstract:

"Biosecurity is a major issue for Australia. There have been both successes in stopping the import of diseases and failures in allowing the import of destructive flora and fauna. This chapter will review the legislative history and policies surrounding some of these successes and failures to demonstrate best practice legislation going forward. By way of example, the threat of grape phylloxera, which led to the passing of the Phylloxera Act 1899 (SA), prohibited the import of cuttings from the old-world vineyards—at a time when many vineyards were being wiped out in Europe. Phylloxera was successful and coincidentally has resulted in Australia having the oldest shiraz vineyards in the world. This is not just an historical threat, with current legislation still targeting phylloxera and other vineyard diseases. The chapter will also discuss various historic failures, where a lack of knowledge of local circumstances led to the import of inappropriate “cures”. The cane toad example is well known. Another example is a native African plant, Glycine, which was introduced into Australia for cattle fodder. It is now regarded as an invasive weed, particularly in tropical and sub-tropical Australia. The chapter will address other flora and fauna examples which continue as major environmental problems today. A theme of the chapter is that an understanding of the historical policies surrounding the development of legislation is relevant today as they give us an understanding of what should be considered when developing biosecurity policy and legislation in the modern era."

Gray on 'Proportionality in Administrative Law and its Application to Victoria’s Proposed Pandemic Legislation'

 Professor Anthony Gray of the University of Southern Queensland School of Law and Justice has published a new article titled 'Proportionality in Administrative Law and its Application to Victoria's Proposed Pandemic Legislation'.  The article appears in Volume 29(1) of the Australian Journal of Administrative Law.  Here is the abstract:

"This article describes the use of proportionality in United Kingdom and Australian administrative law. There remains uncertainty regarding use of the doctrine, particularly in Australia. The article defends proportionality on the basis it reflects the rule of law. Its flexibility is an asset. Arguments against proportionality are considered weak. The use of proportionality reflects a culture of justification for the use of government power in a way that impacts an individual’s human rights, which reflects Australia’s liberal democracy. The article then considers application of proportionality principles to Victoria’s mooted pandemic laws. It finds that proportionality principles provide a more fertile ground for effective judicial review of the proposed extreme measures than 'Wednesbury' unreasonableness."

Copley on 'Land, the Social Imaginary, and the Constitution Act 1867 (Qld)'

 Mrs Julie Copley of the University of Southern Queensland School of Law and Justice has published a paper titled 'Land, the Social Imaginary, and the Constitution Act 1867 (Qld)'.  The paper appears as a chapter in Sarah McKibbin, Marcus Harmes, and Jeremy Patrick, eds., The Impact of Law's History: The Past is Prologue (Palgrave Macmillan, 2022).  Here is the abstract:

"Answers to property questions must be integrated into a state’s property institution. That institution is a product of the state’s legal and political arrangements. In law and in society, property questions are likely to be contested, dealing as they do with “property as things” and “property as wealth”. This chapter analyses, with reference to the real property institution established when the colony of Queensland was created in the mid-nineteenth century, legal and social (including political) theory of J.W. Harris, Charles Taylor, and Jeremy Waldron relevant to allocation of property as wealth. Early constitutional provision, enacted to give effect to the instrumental values of the “idea of order” in the new colony, is found to have continuing relevance. This finding demonstrates the importance of due appreciation of the historical evolution of a property institution if answers to property questions—in Queensland, generally in legislative form—are to allocate property as wealth on just and principled lines. It is argued that, as in Queensland, an appreciation of a state’s property institution—including the deeper normative notions and images of the common understandings of the state’s idea of order—is essential to amendment of legal and political arrangements."