Gray on 'The Doctrine of Command Responsibility in Australian Military Law'

 Professor Anthony Gray of the University of Southern Queensland School of Law and Justice has published a new article titled 'The Doctrine of Command Responsibility in Australian Military Law'.  The article appears in Volume 45(3) of the University of New South Wales Law Journal.  Here is the abstract:

"The recently released Brereton Inquiry Report found there was credible evidence to suggest a small number of members of the Australian Defence Force were involved in war crimes in Afghanistan. If the allegations are proven to be true at the required standard of proof, one important legal question is the extent, if any, to which those in command of those who committed the crimes are liable for them. This is the doctrine of command responsibility. The article charts development of the doctrine in international law, explores its controversial and uncertain legal basis, considers its compatibility with fundamental principles of criminal law, and offers some suggestions as to how the relevant statutory provision might be interpreted, in a way that is compatible with international law as well as fundamental aspects of Australian criminal law."

Reich on 'The past, present and future of education programs for individuals who sexually offend'

Dr Suzanne Reich, a Senior Lecturer in the University of Southern Queensland School of Law and Justice, has published a new research paper titled 'The past, present and future of education programs for individuals who sexually offend'.  Co-written with Sharon Klamer, the paper appears as a chapter in the edited collection Histories and philosophies of carceral education: aims, contradictions, promises and problems (M.K. Harmes, M.A. Harmes, & B. Harmes, eds.) published by Palgrave MacMillan.

Patrick on 'Legal Realism and Australian Constitutional Law'

Dr Jeremy Patrick, a Senior Lecturer in the University of Southern Queensland School of Law and Justice, has published a new article titled 'Legal Realism and Australian Constitutional Law'.  The article appears in Volume 32 of the Journal of Judicial Administration.  Here is the abstract:

"Our traditional understanding of judicial decision-making is that judges apply the law to a set of facts and reach a result. This is known as legal formalism. But what if this is backwards? What if the process of judicial reasoning is to decide on the result, and then rhetorically justify it with particular interpretations of legal rules and facts? This paper applies the descriptive theory of legal realism in a particular context (Australian constitutional law) alongside a qualitative empirical study to help decide whether legal formalism or legal realism best explains High Court decision-making."

Gray on ‘Religious-Based Discrimination in the Commercial Context on the Basis of Sexual Orientation: A Comparative Perspective'

Professor Anthony Gray of the University of Southern Queensland School of Law and Justice has published a new article titled ‘Religious-Based Discrimination in Religious Context on the Basis of Sexual Orientation: A Comparative Perspective'  The article appears in Volume 51(3) of the Common Law World Review.  Here is the abstract:

"This paper considers how three jurisdictions, Canada, the United States and the United Kingdom, have sought to reconcile freedom of religion with equality rights, particularly in the commercial context, and particularly in relation to sexual orientation. The recent decisions of the United Kingdom Supreme Court and United States Supreme Court form the backdrop for that discussion. It is argued that the former made piecemeal, and misleading, use of American case law, and a fuller consideration of that jurisdiction’s position was warranted, and would have led to a different view of the recent American decision. It argues that the United Kingdom Supreme Court was in error in viewing a message on a cake ordered from a baker as an example of the baker’s expression, leading it to an incorrect conclusion at odds with statutory mandates in the commercial sphere around refusals of service. Both high court decisions risk undermining progress on the equality front."

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."