Gray on 'Determining Whether an Employment or Independent Contractor Relationship Exists and the Relevance of Contractual Performance to its Interpretation'

Professor Anthony Gray of the University of Southern Queensland School of Law and Justice has published a new article titled 'Determining Whether an Employment or Independent Contractor Relationship Exists and the Relevance of Contractual Performance to its Interpretation'.  The article appears in Volume 50 of the Australian Business Law Review.  Here is the abstract:

"A recent High Court decision considered important questions regarding principles of contractual interpretation when actual performance differs from the form of the contract, and how a court should determine the true nature of a working relationship. On the former, a majority of the Court took a formalist view of contract interpretation; on the latter, a majority signalled a return to a kind of organisation test that earlier decisions had discarded. On the former, this position isolates Australian law from that pertaining in jurisdictions elsewhere. It is submitted the position of the second joint reasons is preferred, taking into account actual performance in interpreting the contract. It also defends the multi-factorial approach traditionally taken to questions regarding the true nature of a working relationship."

Hart & Timoshanko on 'Ready for a Reboot: Law Schools Need to Reboot and Upgrade the Law Curriculum Now to Better Meet the Impacts of Technology'

Professor Caroline Hart and Dr Aaron Timoshanko of the University of Southern Queensland School of Law and Justice have published a new article titled 'Ready for a Reboot: Law Schools Need to Reboot and Upgrade the Law Curriculum Now to Better Meet the Impacts of Technology'.  The article appears in Volume 15 of the Journal of Australasian Law Academics Association.  The paper can be found on SSRN.  Here is the abstract:

"This paper investigates Australian legal education’s capacity to acknowledge and respond to the impacts of the increasing use of technologies aiding legal service delivery. While law academics are debating the extent of this impact, there are already new jobs with new titles requiring new skillsets, and these employment opportunities will go to the best-prepared graduates. Even within the current framework, law academics have the capacity to better equip graduates to succeed in this changing environment through leadership and engagement with the key players. The responsibility to lead this adapted legal education is best held by law schools carrying it out as a fiduciary role towards graduates rather than as a broker for broader tech-interests."

Gray on ‘Vanderstock v Victoria: Are “True” Consumption Taxes Forbidden to the States by Section 90 of the Australian Constitution?'

Professor Anthony Gray of the University of Southern Queensland School of Law and Justice has published a new article titled ‘Vanderstock v Victoria: Are “True” Consumption Taxes Forbidden to the States by Section 90 of the Australian Constitution?'  The article appears in Volume 44(4) of the Sydney Law Review.  Here is the abstract:

"The High Court of Australia will soon consider a constitutional challenge to recent Victorian legislation that imposes a fee on the use of a zero or lowemission vehicle. The challenge argues that such a fee is an excise tax, prohibited to the States by s 90 of the Australian Constitution. The Court will need to consider the current orthodoxy that a consumption tax is not an excise, and its longstanding interpretation of s 90. This column submits the High Court should extend the existing definition of excise to include true taxes on consumption. This would be most consistent with the view of the purpose of s 90 accepted by the High Court since 1949, and would remove an anomaly from existing law."

Martin on ‘The River as a Separate Legal Person: Implications for Sustainability and Governance’

Dr Rhett Martin, a Senior Lecturer in the University of Southern Queensland School of Law and Justice, has published a new article titled 'The River as a Separate Legal Person: Implications for Sustainability and Governance'.  The article appears in Volume 39(2) of the Environmental and Planning Law Journal.  

Hemming on 'Evidence Law in Queensland, South Australia and Western Australia'

 Associate Professor Andrew Hemming of the University of Southern Queensland School of Law and Justice has published the second edition of Evidence Law in Queensland, South Australia and Western Australia (Thomson Reuters, 2022).  Here is the publisher's description:

"Evidence law in the three “common law” states of Queensland, South Australia and Western Australia is the prime focus of this book, highlighting their similarities and differences. Additionally the book compares and contrasts the evidence law of these states with the uniform evidence legislation.  

Each of the 12 chapters traverse key concepts, case law and legislation, with generous use of headings to guide readers in a logical and easy- to- read style. The publication is an excellent teaching tool and includes active learning questions and problem scenarios which can be discussed during evidence courses. The book is also a practical resource for busy legal practitioners who need to gain a quick understanding of particular evidentiary issues.

Specific features of this book included within the 12 Chapters are:

• Tables summarising the main common law judicial discretions governing exclusion of relevant evidence and the equivalent uniform evidence provisions.
• Special and vulnerable witnesses giving evidence - law and practice.
• Privileges of confidential communications, counselling, religious confessions, shield for journalist sources in Qld and SA, and parliamentary proceedings; public interest immunity in AB (a pseudonym) v CD (a pseudonym).
• Consideration of the propensity or similar fact cases of Hughes v The Queen and The Queen v Dennis Bauer (A Pseudonym); analysis of the rebuttable presumption for child sexual offences in s 97A for NSW.
• Legislation and cases as to when evidence of bad character of an accused is allowed; failure to adduce good character in Xu v The Queen; discussion of the High Court case of Pell v The Queen on the unreasonableness ground of appeal.
• When opinion evidence may be admitted from lay persons or ‘Ad hoc’ experts; differing  procedures and warnings which are required for admission of identification evidence.
• Discussion of discretion to exclude identification evidence in The Queen v Dickman.
• Full discussion and summary of the leading cases on hearsay, exceptions and implied assertions; when “res gestae” evidence is admissible as a hearsay exception or as original evidence.
• Judicial discretion to exclude a voluntary confession; confessions and failure to understand the caution; unfairness discretion in Sindoni v The Queen; distinction between formal and informal admissions; implied admissions in TWR v Western Australia; directions to the jury on lies and post offence conduct.
• Discussion of High Court case of Kadir and Grech v The Queen on illegally obtained evidence."

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.