Hemming on 'Criminal Responsibility: Older but No Wiser’

Associate Professor Andrew Hemming of the University of Southern Queensland School of Law and Justice has published a new article titled 'Criminal Responsibility: Older but No Wiser'.  The article appears in Volume 46 of the Criminal Law Journal.  Here is the abstract:

"This paper is a rejoinder to an article entitled ‘Will Australia Raise the Minimum Age of Criminal Responsibility?’ and an editorial entitled ‘A New Architecture for Youth Justice’ both published in the Criminal Law Journal in 2019 and 2022 respectively, in which Professor Thomas Crofts and editor Phillip Boulten endorsed previous calls for an increase in the minimum age of criminal responsibility (MACR) in Australia to a minimum of 12 years of age and preferably 14 years of age. By contrast, the author supports the retention of doli incapax for children aged between 10 and 13 years of age to address the small number of children who represent a threat to public safety, and argues that the neuroscience relied upon by proponents of raising the MACR is dated. The author supports the Queensland Government’s position that simply raising the MACR does not address the complex societal factors underlying offending by children. Any solution to child offending requires a recognition that without improved social justice for the most disadvantaged sections of society, raising the MACR is both pointless and dangerous."

McKibbin on 'The Common Law Jurisprudence of the Conflict of Laws'

Dr Sarah McKibbin, a Lecturer at the University of Southern Queensland School of Law and Justice, has co-edited (along with Anthony Kennedy) a new collected titled The Common Law Jurisprudence of the Conflict of Laws.  The book is published by Hart.  Here is the publisher's synopsis:

"This book presents a collection of leading common law cases in private international law ranging from the 18th to the 21st century. The cases traverse issues of jurisdiction, choice of law and the recognition and enforcement of foreign judgments. Questions of marital validity, domicile, foreign immovable property and choice of law in contract are just some of the topics that this collection examines. The 'unusual factual situations' of some 18th- and 19th-century English cases also reveal compelling human interest stories and political controversies worthy of further exploration.

Drawing on a diverse team of contributors, this edited collection showcases the research of eminent conflicts scholars together with emerging scholars from the United Kingdom, Australia, Canada, Ireland and South Africa."

Hemming on 'Lost in Translation: The Wrongful Conviction of Kathleen Folbigg Based on Fresh Medical Evidence and Expert Interpretation of Her Diaries’

Associate Professor Andrew Hemming of the University of Southern Queensland School of Law and Justice has co-written (along with Fiona Hum) a new article titled: ‘Lost in Translation: The Wrongful Conviction of Kathleen Folbigg Based on Fresh Medical Evidence and Expert Interpretation of Her Diaries’.  The article appears in Volume 97 of the Australian Law Journal.  Here is the abstract:

"This article argues that Kathleen Folbigg was wrongly convicted of suffocating her four children and should be immediately released from prison where she has been incarcerated since 2003. The basis for this contention is the fresh and compelling evidence that Ms Folbigg has the CALM2 mutation which she passed on to two of her four children and precipitated lethal cardiac arrests. The current medical and scientific expert opinion is that all four children died from natural causes. In addition, recent expert opinion from psychologists and linguists on Ms Folbigg’s diaries, which the Crown argued amounted to virtual admissions of guilt, concluded that there was no evidence Ms Folbigg harmed her children and her purpose in writing the entries was to try and make sense of the deaths of her children."

Collins on 'Practice Insight: Court-connected mediation in Jordan—Considerations for choosing a mediator’

Professor Pauline Collins of the University of Southern Queensland School of Law and Justice has co-written (along with Bakr Abdel Fattah Al Serhan and Wesam Faisal Al Shawawreh) a new article titled 'Practice Insight: Court-connected mediation in Jordan—Considerations for choosing a mediator’.  The article appears in the April 2023 issue of Conflict Resolution Quarterly.  Here is the abstract:

"A model of court-connected mediation following Western practice was adopted in Jordan in 2003. Its success has been limited. This practice insight addresses the current mediation legislation in Jordan in relation to civil and commercial disputes. The law allows the parties three options in choosing a mediator, one being a judge mediator. This raises important considerations for parties when they are choosing a mediator. The practice insight addresses these considerations with a view to improving party awareness when exercising their choice of mediator. It also takes the opportunity to suggest legislative changes to improve the uptake of mediation."

Gray on 'The Defence of Superior Orders (and Related Defences) 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 Defence of Superior Orders (and Related Defences) in Australian Military Law'.  The article appears in Volume 43(2) of the Adelaide Law Review.  Here is the abstract:

"A soldier ordered by a commanding officer to commit acts which may be unlawful is in an invidious position. If they fail to obey the command, they are liable to be convicted of a serious crime. If they obey, but their actions are subsequently found to be unlawful, they are also liable to be convicted of a serious crime. Not surprisingly, the law has struggled to grapple with this conundrum, at times protecting the obedient soldier, at other times punishing them. The relevant provision of the Rome Statute of the International Criminal Court (‘Rome Statute’), focusing on whether the order was ‘manifestly unlawful’, represents an uneasy compromise. This article charts the development of this concept in international law and its reception into Australian domestic law. It also critiques the doctrine for failing to reflect the realities of an obedience imperative within military ranks, its uncertain meaning and its embrace of negligence to effectively gauge criminality, before proposing improvements in this difficult area. The focus should be on a reasonable soldier, to take specific account of the peculiarities of a military environment, rather than a reasonable person. Specifically, this article proposes necessary clarification of the meaning of ‘manifest illegality’, with a specific list of factors to be considered. No other article of which the author is aware attempts such a list."

Patrick on 'Book Review: The Transgender Issue: An Argument for Justice’

Dr Jeremy Patrick, a Senior Lecturer at the University of Southern Queensland School of Law and Justice, has published a book review of The Transgender Issue: An Argument for Justice.  The review appears in Volume 2 of the Australian Journal of Law and Religion.

Gray and Copley on 'Possessory Title: Its Salience to the Torrens System of Australian States’

Professor Anthony Gray and Dr Julie Copley of the University of Southern Queensland School of Law and Justice have published a new article titled 'Possessory Title: Its Salience to the Torrens System of Australian States'.  The article appears in Volume 30 of the Australian Property Law Journal.  Here is the abstract:

"The ancient doctrines of possessory title — protecting possessory interests in land, independent of legal title — continue within the Torrens land title registration systems of Australian states, despite evidence in the case law of legal confusions between possessory title and registered title. To analyse possessory title and its confusions, this article applies law and economics theory of possession to possessory title. According to that theory, possession operates to turn ordinary, social expectations into legal reality, and fundamental to the analysis will be Frederick Pollock’s argument that possession is law’s way of mediating scrambled property interests. The analysis is of the social and legal norms of possessory title (also termed ‘adverse possession’) in Australia: the twin legal doctrines; the consistency of the doctrines with the law and economics of possession and modern property theory; and case law evidence of scrambled real property interests when possessory title operates within a formal, legislative Torrens system. From Pollock’s argument, as applied to contemporary real property interests, an ongoing salience of possessory title will emerge. The salience relates to possession’s contingencies. Where Torrens law is unclear and unsettled, social norms formed from community expectations can convert into legal norms. Where Torrens law is clear and settled, social norms can promote shared understandings of the acts of possession a community associates with legal title."