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Religious Freedom and Job Security 宗教自由和工作保障
IF 1.3
UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL Pub Date : 2022-04-21 DOI: 10.53637/fnzf5790
Joellen Riley Munton, T. MacDermot
{"title":"Religious Freedom and Job Security","authors":"Joellen Riley Munton, T. MacDermot","doi":"10.53637/fnzf5790","DOIUrl":"https://doi.org/10.53637/fnzf5790","url":null,"abstract":"Debate on the need for new anti-discrimination laws to address religious discrimination continues in Australia. Claims for greater protection for freedom of religious expression present particular challenges for employers who bear responsibilities to maintain psychologically safe and healthy workplaces for all their employees. The present ‘general protections’ against discriminatory treatment in the Fair Work Act 2009 (Cth) do not adequately deal with complaints of discrimination, largely because of the ease with which employers can excuse adverse action on the basis of their own workplace policies. However, the proposals in the Religious Discrimination Bill 2019 (Cth) go too far in seeking to address that weakness. We propose that an alternative model for balancing the respective interests in workplace disputes of this kind would be expanding the workplace bullying and unfair dismissal jurisdictions of the Fair Work Commission, to enable these kinds of conflicts to be managed in a proportionate and balanced manner.","PeriodicalId":45951,"journal":{"name":"UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":1.3,"publicationDate":"2022-04-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42255500","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Legal Unreasonableness: In Need of a New Justification? 法律不合理：需要新的理由吗？
IF 1.3
UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL Pub Date : 2022-04-21 DOI: 10.53637/wopx7767
J. Boughey
{"title":"Legal Unreasonableness: In Need of a New Justification?","authors":"J. Boughey","doi":"10.53637/wopx7767","DOIUrl":"https://doi.org/10.53637/wopx7767","url":null,"abstract":"Over the past decade, the High Court of Australia has made significant changes to the administrative law ground of unreasonableness, yet has given few indications of what values and functional considerations precipitated this shift. This is not unusual. The High Court has a reputation for preferring rules-based reasoning to values-based reasoning in administrative law (and beyond). But this does not mean that values and functional considerations are not important in shaping, and in explaining, the new legal unreasonableness test. This article analyses the changes that have occurred in unreasonableness – both in rhetoric and in application – and seeks to illuminate what this says about, and means for, Australian administrative law values. It explores the return, in the rhetoric of some judges, to relying on abuse of power as a justification and threshold for unreasonableness, and argues that other administrative law values better explain the new legal unreasonableness test.","PeriodicalId":45951,"journal":{"name":"UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":1.3,"publicationDate":"2022-04-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42742591","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Misuse of Power in the Australian Charities Sector 澳大利亚慈善部门滥用权力
IF 1.3
UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL Pub Date : 2022-04-21 DOI: 10.53637/oole6882
Rosemary Teele Langford, M. Webster
{"title":"Misuse of Power in the Australian Charities Sector","authors":"Rosemary Teele Langford, M. Webster","doi":"10.53637/oole6882","DOIUrl":"https://doi.org/10.53637/oole6882","url":null,"abstract":"Charities are an essential part of Australian civil society and make fundamental contributions to social cohesion and well-being, as well as to the Australian economy. Public trust and confidence in the sector has, however, been damaged by high profile governance failures, despite the advent of a new national regime overseen by the Australian Charities and Not-for-profits Commission. This article draws attention to gaps in the regulatory frameworks applicable to Australian charities in relation to misuse of charitable assets and makes reform suggestions. Strengthening the charities sector by deterring and sanctioning such misuse more effectively is important in order for the law to hold those who govern and control charities to account and to ensure that such power is not misused.","PeriodicalId":45951,"journal":{"name":"UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":1.3,"publicationDate":"2022-04-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49429908","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Minister for Home Affairs v Benbrika and the Capacity of Chapter III of the Commonwealth Constitution to Protect Prisoners' Rights 内政部长诉本布里卡和《联邦宪法》第三章保护囚犯权利的能力
IF 1.3
UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL Pub Date : 2022-04-21 DOI: 10.53637/wwjh7374
Andrew Dyer
{"title":"Minister for Home Affairs v Benbrika and the Capacity of Chapter III of the Commonwealth Constitution to Protect Prisoners' Rights","authors":"Andrew Dyer","doi":"10.53637/wwjh7374","DOIUrl":"https://doi.org/10.53637/wwjh7374","url":null,"abstract":"Protect Prisoners’ Rights Author Andrew Dyer In recent cases in which prisoners have used Chapter III of the Commonwealth Constitution to challenge draconian legislation, the High Court of Australia (‘HCA’) has deployed formalistic reasoning when rejecting their claims. The latest such case was Minister for Home Affairs v Benbrika (‘Benbrika’), where a majority upheld the continuing detention order scheme created by Division 105A of the Criminal Code Act 1995 (Cth), essentially on the basis that imprisonment is not necessarily punishment. Judges should never use such reasoning to avoid striking down laws that breach Chapter III. When they do so, they fail properly to hold power to account. However, the result in Benbrika seems largely justified. Judges are rightly cautious about using Chapter III to strike down punitive laws; and, as Edelman J showed, the Court in Benbrika could exercise restraint without resorting to formalistic evasion. His Honour correctly acknowledged that the HCA has only a limited ability to protect unpopular minorities.","PeriodicalId":45951,"journal":{"name":"UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":1.3,"publicationDate":"2022-04-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44962033","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 2
Perilous Fires, Pandemics and Price Gouging: The Need to Protect Consumers from Unfair Pricing Practices during Times of Crisis 危险的火灾、流行病和价格欺诈:危机时期保护消费者免受不公平定价行为侵害的必要性
IF 1.3
UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL Pub Date : 2021-11-01 DOI: 10.53637/dkyf4495
M. Giancaspro
{"title":"Perilous Fires, Pandemics and Price Gouging: The Need to Protect Consumers from Unfair Pricing Practices during Times of Crisis","authors":"M. Giancaspro","doi":"10.53637/dkyf4495","DOIUrl":"https://doi.org/10.53637/dkyf4495","url":null,"abstract":"Recent crises affecting Australia, including the Black Summer bushfires and Coronavirus pandemic, have devastated social morale and crippled our economy. Countless lives and properties have been damaged or lost. These conditions have inflated demand for basic consumer goods and services, such as hygiene products, staple foods, and utility services. Sadly, some sellers have exploited public desperation, with widespread reports of price gouging. This notorious practice involves pricing high-demand essentials at levels significantly higher than what is commonly considered acceptable, reasonable or fair. This article critically analyses moral and economic arguments surrounding statutory controls before proposing a model law regulating price gouging during times of crisis. It argues that such a law is both essential and easily adaptable to Australia’s consumer law framework. The model law provides a basis for the federal government to consider desperately required change to ensure consumers do not suffer during current crises or those to come.","PeriodicalId":45951,"journal":{"name":"UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":1.3,"publicationDate":"2021-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45971937","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
To Boldly Go, Part II: Data as the CISG’s Next (but Probably Not Final) Frontier 大胆前行，第二部分:数据作为CISG的下一个(但可能不是最终的)前沿
IF 1.3
UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL Pub Date : 2021-11-01 DOI: 10.53637/ntic9846
B. Hayward
{"title":"To Boldly Go, Part II: Data as the CISG’s Next (but Probably Not Final) Frontier","authors":"B. Hayward","doi":"10.53637/ntic9846","DOIUrl":"https://doi.org/10.53637/ntic9846","url":null,"abstract":"The United Nations Convention on Contracts for the International Sale of Goods (‘CISG’) is an international sales law treaty concluded in 1980 and drafted with traditional (physical) goods trade in mind. While a significant body of scholarship has addressed its capacity to govern electronic software transactions, only limited commentary has explored the CISG’s digital application beyond software per se. ‘To Boldly Go, Part I’, this article’s counterpart, developed a specific legal framework for assessing the CISG’s capacity to regulate international trade in non-software data. This article now applies that framework, confirming the CISG is capable of governing non-software data trade, and uses that framework to resolve the currently unsettled question of whether cryptocurrency trade falls within the CISG’s scope. Since non-software data trade is becoming increasingly economically important, this article’s conclusions stand to benefit data traders as well as the practitioners advising them.","PeriodicalId":45951,"journal":{"name":"UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":1.3,"publicationDate":"2021-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43100976","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Algorithmic Collusion and Australian Competition Law: Trouble Ahead for the National Electricity Market? 算法合谋与澳大利亚竞争法:全国电力市场的麻烦?
IF 1.3
UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL Pub Date : 2021-11-01 DOI: 10.53637/stoa4193
Jeremy D Chan
{"title":"Algorithmic Collusion and Australian Competition Law: Trouble Ahead for the National Electricity Market?","authors":"Jeremy D Chan","doi":"10.53637/stoa4193","DOIUrl":"https://doi.org/10.53637/stoa4193","url":null,"abstract":"This article explores the interaction between the National Electricity Law and potential algorithmic collusion in the National Electricity Market (‘NEM’). Reviewing the current state of Australian competition law, this article concludes that the law does not prohibit algorithmic collusion in the NEM, even though such collusion has serious ramifications for Australian consumers. Despite recent hesitancy to addressing algorithmic collusion, this article argues we cannot afford to ‘wait and see’ and proposes nuanced solutions that appropriately address algorithmic collusion in the NEM. These solutions include a notification regime, a reduction in bidding transparency, and a novel definition to ‘concerted practice’ that would ensure competition law captures tacit and autonomous algorithmic collusion. More generally, the approach in this article highlights the need for market-specific analysis of algorithmic collusion, particularly as the competitive impact of using algorithmic technology depends on the circumstances in which the algorithm is deployed.","PeriodicalId":45951,"journal":{"name":"UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":1.3,"publicationDate":"2021-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42635568","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Still Lagging Behind: Diagnosing Judicial Approaches to ‘Bodily Injury’ Claims for Psychiatric Injury under the Montreal Convention of 1999 仍然落后:根据1999年蒙特利尔公约诊断精神伤害“身体伤害”索赔的司法方法
IF 1.3
UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL Pub Date : 2021-11-01 DOI: 10.53637/idln9124
John-Patrick Asimakis
{"title":"Still Lagging Behind: Diagnosing Judicial Approaches to ‘Bodily Injury’ Claims for Psychiatric Injury under the Montreal Convention of 1999","authors":"John-Patrick Asimakis","doi":"10.53637/idln9124","DOIUrl":"https://doi.org/10.53637/idln9124","url":null,"abstract":"International civil aviation is today a mature global industry, without which the modern world is unimaginable. That modern world increasingly recognises, in view of advancing medical science, that the dualist distinction between body and mind is artificial. Yet recent judicial interpretation of the term ‘bodily injury’ in the Convention for the Unification of Certain Rules for International Carriage by Air (‘Montreal’) of 1999 has revalidated this distinction by denying compensation for psychiatric injury in the field of international civil aviation. This article challenges that interpretation by explaining the physical nature of psychiatric injury with reference to medical literature and neuroimaging technologies. It argues that the ordinary meaning of ‘bodily injury’ across Montreal’s authentic texts encompasses psychiatric injury, supporting this construction by examining both Montreal’s travaux préparatoires and its parties’ municipal jurisprudence. After briefly addressing policy concerns, it concludes that national courts may permit recovery for pure psychiatric injury under Montreal.","PeriodicalId":45951,"journal":{"name":"UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":1.3,"publicationDate":"2021-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41757664","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Blurred Lines or Stark Contrasts: Are By-laws to Restrict Short-Term Holiday Letting Permissible in Queensland Community Titles Schemes? 模糊的界限还是鲜明的对比：昆士兰社区产权计划是否允许限制短期假期出租的细则？
IF 1.3
UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL Pub Date : 2021-11-01 DOI: 10.53637/fuex9448
Melissa Pocock
{"title":"Blurred Lines or Stark Contrasts: Are By-laws to Restrict Short-Term Holiday Letting Permissible in Queensland Community Titles Schemes?","authors":"Melissa Pocock","doi":"10.53637/fuex9448","DOIUrl":"https://doi.org/10.53637/fuex9448","url":null,"abstract":"Complex laws regulate the development and management of Queensland community titles schemes. Different legislative regimes co-exist, including the Body Corporate and Community Management Act 1997 (Qld) (‘BCCM Act’) and its predecessor, the Building Units and Group Titles Act 1980 (Qld) (‘BUGT Act’). This article considers by-laws under the BUGT Act regulating short-term holiday letting post the decisions in Fairway Island GTP v Redman [2019] QMC 13 and Redman v The Proprietors – Fairway Island GTP 107328 [2020] QDC 68. It compares the BCCM Act and BUGT Act requirements and argues that similarities in by-law making powers under the two may appear to blur the divisions between them. However, the positions under each Act are in stark contrast, rendering the cases distinguishable for BCCM Act schemes, a desirable outcome. The article also explores arguments in favour of self-regulation, and the governmental response in New South Wales, Victoria and Western Australia.","PeriodicalId":45951,"journal":{"name":"UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":1.3,"publicationDate":"2021-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43723575","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Native Title as Displaced Mediator 作为流离失所的调解人的土著头衔
IF 1.3
UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL Pub Date : 2021-11-01 DOI: 10.53637/wphs1787
Stephenie Young
{"title":"Native Title as Displaced Mediator","authors":"Stephenie Young","doi":"10.53637/wphs1787","DOIUrl":"https://doi.org/10.53637/wphs1787","url":null,"abstract":"This article considers how native title is a legal manifestation of settler colonialism that operates as a displaced mediator. Using native title cases from Australia and elsewhere, this article argues that native title displaces Indigenous laws, customs, and practices in constructing native title holders as ‘traditional’ to mediate their integration into the so-called ‘modern’ nation. Legal processes construct native title and then retroactively posit that these legal constructions pre-exist the Crown’s acquisition of sovereignty. This provides legal support for the Crown’s acquisition of sovereignty and Aboriginal and Torres Strait Islander peoples who assert native title claims become subjects who aver and reproduce the myth that the Crown acquired sovereignty over them. Native title displaces more unsettling, decolonising practices but produces the appearance of justice through the production of existential and material benefits for its subjects. Northern Territory v Griffiths (2019) 364 ALR 208 (‘Timber Creek’) demonstrates this.","PeriodicalId":45951,"journal":{"name":"UNIVERSITY OF NEW SOUTH WALES LAW JOURNAL","volume":"1 1","pages":""},"PeriodicalIF":1.3,"publicationDate":"2021-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70624060","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
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