Collins on 'In search of certainty for military discipline'

Professor Pauline Collins of the University of Southern Queensland School of Law and Justice has published a new article titled 'In search of certainty for military discipline'.  The article appears in Volume 52 of the Australian Bar Review.  Here is the abstract:

"In 2020 the High Court of Australia yet again addressed the reach of military jurisdiction for criminal offending by military members. This article considers the far-reaching decision in 'Private R v Cowen' (2020) 383 ALR 1 in the context of the state of civil-military relations and discipline in the Australian Defence Force. Five out of the seven judges agreed the defence power under section 51(vi) of the Australian 'Constitution' enables Parliament to decide how the control of the military can occur in disciplining service personnel. The article explores the court’s reasoning and critiques the judgment and its consequences for the civil-military control principle, and the needs of service personnel. The article concludes the area is ripe for Parliament’s attention in bringing military discipline up to 21st century standards."

Gray on 'The Separation of Powers and the Mineralogy/Palmer Litigation'

Professor Anthony Gray of the University of Southern Queensland School of Law and Justice has published a new research paper titled 'The Separation of Powers and the Mineralogy/Palmer Litigation'.  Gray's work appears as a book chapter in A Keith Thompson (ed), Current Issues in Australian Constitutional Law (Shepherd Street Press, 2022).  Here is the paper's abstract:

"In a landmark decision in 1996, a majority of the High Court found that the principle of separation of powers could be effectively drawn down from the Australian Constitution so as to be applicable to the state context. The principle is axiomatic as part of constitutional governance, seeking to enshrine checks and balances as a means of limiting the power of the state against individuals. Recently, the Western Australian Parliament passed legislation specifically naming and targeting an individual and organisation, in relation to particular matters in dispute. Effectively, the legislation rendered court proceedings pointless, because it effectively ordered courts not to review or quash government decisions or to provide a remedy in the event it found a law had been breached. The High Court validated the measure. This article argues there were good arguments in favour of the law being held invalid. The decision to validate such measures also imperils the rule of law."

Hemming on 'Inconsistencies, Improbabilities and Impossibilities in the Case of Cardinal Pell: A Reply to Memory Science'

Associate Professor Andrew Hemming of the USQ School of Law and Justice has published a new article titled 'Inconsistencies, Improbabilities and Impossibilities in the Case of Cardinal Pell: A Reply to Memory Science'.  The article, co-written with Fiona Hum, appears in Volume 46 of the Criminal Law Journal.  Here is the abstract:

"This article is a rejoinder to Goodman-Delahunty, Martschuk and Nolan’s article published in the Criminal Law Journal in 2020. In particular, the authors critically evaluate the arguments by the psychological researchers that the High Court decision in Pell v The Queen was based upon a misunderstanding of an application of memory science involving routine practices versus singular impactful events. The authors contend their narrow focus on memory science rather than other relevant issues associated with the mind, is flawed. Their approach also overlooked the sheer weight of evidence for the defence presented at trial and the forensic disadvantage faced by Pell after 22 years. The authors argue that the High Court’s reasoning was rightly based on concerns that an innocent person had been convicted because the evidence did not establish guilt beyond a reasonable doubt."

Gray on 'Proportionality in Australian Constitutional Law: Next Stop Section 116?'

 Professor Anthony Gray of the USQ School of Law and Justice has published a research note titled 'Proportionality in Australian Constitutional Law: Next Stop Section 116?'  The note appears in Volume 1 of the Australian Journal of Law and Religion.  Here is the abstract:

"The High Court has accepted proportionality in interpreting aspects of the Australian Constitution, particularly in the rights context. This article considers its possible application to s116 of the Australian Constitution, enshrining freedom of religion."

Hemming on ‘Why the Jury in Pell v The Queen Must Have Had a Doubt and the High Court was Right to Quash the Guilty Verdicts’

 Associate Professor Andrew Hemming of the University of Southern Queensland School of Law and Justice has published a new article titled ‘Why the Jury in Pell v The Queen Must Have Had a Doubt and the High Court was Right to Quash the Guilty Verdicts’.  The article appears in Volume 1 of the Australian Journal of Law and Religion.  Here is the abstract:

"In the aftermath of the High Court’s decision in Pell v The Queen to quash the guilty verdicts and enter verdicts of acquittal in their place, there has been considerable public discussion and academic commentary on the respective roles of the jury and appellate courts, with particular focus on the jury as the tribunal of fact. Pell v The Queen was a high-profile case involving sexual assault charges against a Cardinal of the Roman Catholic Church, when just a year earlier the Royal Commission into Institutional Responses to Child Sexual Abuse had published its final report which was dominated by abuses perpetrated in the Roman Catholic Church. This article considers the test for the unreasonableness ground of appeal set out by the High Court in M v The Queen, which is reflected in s 276(1)(a) of the Criminal Procedure Act 2009 (Vic), whether ‘upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty’; and concludes that the High Court was correct to adopt Weinberg JA’s dissenting judgment in the Victorian Court of Appeal which in the author’s view was compelling." 

Olwan on 'Intellectual Property: Principles and Practice'

During his time in the University of Southern Queensland School of Law, Dr Rami Olwan (now a Lecturer at Curtin University) co-wrote a book (along with Anne Fitzgerald and Dimitrios Eliades).  The book is titled Intellectual Property: Principles and Practice (Thomson Reuters, 2022).  Here is a portion of the publisher's description:

"Intellectual Property: Principles and Practice provides a succinct, principles-based account of all the forms of intellectual property recognised in Australian law: copyright, patents, plant breeder’s rights, trade marks, designs and confidential information.  It explains the rationale, key concepts and principles of each form of intellectual property in a style which is readily accessible to broad readership." 

Gray on 'Reform to the Law of Consent: A Tale of Two States'

Professor Anthony Gray of the University of Southern Queensland School of Law and Justice has published a new article titled 'Reform to the Law of Consent: A Tale of Two States'  The article appears in Volume 31 of the Journal of Judicial Administration.  Here is the abstract:

"This article considers reform in New South Wales and Queensland regarding consent in the context of sexual offences. While New South Wales has effectively adopted an affirmative consent model, Queensland has (so far) stopped short of making this reform, while making changes in this general direction. It is argued here that Queensland should adopt the affirmative consent model."