{"title":"Legal Parameters of the Employer's Duty to Consult","authors":"Giuseppe Carabetta, Paul Lorraine","doi":"10.38127/uqlj.v42i2.7805","DOIUrl":"https://doi.org/10.38127/uqlj.v42i2.7805","url":null,"abstract":"Significant workplace change requires consultation, and standard consultation obligations exist under legislation and statutory instruments. However, those provisions offer minimal guidance on how to approach consultation. The consultation cases tend to focus on compliance, adding little beyond saying consultation needs to be meaningful. Building on the foundation laid by the 2021 decision in Construction, Forestry, Maritime, Mining and Energy Union v Mt Arthur Coal Pty Ltd, this article considers what the parameters of the obligation to consult might — or should — be. It shows that there is an over emphasis in the authorities on timing, as a compliance trigger, rather than the substance of the obligation, and major decisions continue to show the obligation is poorly understood. It argues that clear parameters are needed on how to implement the duty to consult, and that these parameters need to come from statute or clear authority of the courts. Without restricting the inherent flexibility that is needed for consultation to work, or impeding the employer’s prerogative to make decisions, it asserts that there is a need for a deeper legal underpinning, and more active obligations, to shift the concept away from the conflictual paradigm of consultation being ‘triggered’ towards a more collaborative and productive approach.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135926340","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}
{"title":"Rusty Weapons in a Digital Battlespace","authors":"Samuel White","doi":"10.38127/uqlj.v42i2.7525","DOIUrl":"https://doi.org/10.38127/uqlj.v42i2.7525","url":null,"abstract":"This article explores the evolving landscape of foreign interference in domestic affairs, particularly in the context of ‘information operations’ facilitated by the internet. The primary focus of the article is on the lawful authority to respond to external information operations, and how this authority may be shaped by international law. Specifically, the article explores the royal prerogative in two manifestations — the war prerogative, and external affairs prerogative — as a potential source of authority. In doing so, the article employs an analytical framework by Winterton, distinguishing between the ‘breadth’ and ‘depth’ of constitutional executive power. The article acknowledges the limited case law and debates surrounding these prerogatives’ scope and triggers, and slight nuances between British and Australian jurisprudence. It discusses the relationship between the war prerogative and the existence of armed conflict and touches on how international law can support the exercise of the war prerogative through the ‘public policy test’. Drawing from international legal perspectives, the article references United Nations resolutions from 1976 and 1981 that emphasise the importance of domestic legal remedies against information operations. It stresses the duty of states to combat the dissemination of false or distorted news that interferes with other states’ internal affairs. In sum, the article concludes that, while countering IOs is a matter requiring domestic legal authority, international law can likely extend the ambit of the royal prerogative and should also, as a matter of public policy, apply to such campaigns.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":"58 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135926337","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}
{"title":"Sports and Esports as Conduits for Gambling","authors":"Joachim Dietrich, Matthew Raj","doi":"10.38127/uqlj.v42i2.8179","DOIUrl":"https://doi.org/10.38127/uqlj.v42i2.8179","url":null,"abstract":"Australians are some of the highest consumers of gambling products in the world and, per capita, their resultant losses may also be among the highest. This article considers the Australian legal regulatory landscapes that govern both sports (including Esports) gambling and, specifically, the advertising of sports gambling products. Although gambling in Australia is highly regulated, this article reveals significant gaps that create opportunities for gambling service providers to target consumers of sport (especially young people) to market their products and further embed gambling into sports culture. Ultimately, the article offers policy-based legal reforms to curb the enticement of young people into gambling. These reforms include introducing legislation banning the advertisement of gambling service providers: (1) on public roads, public transport and near schools; (2) after 8:30pm during breaks in live broadcast sporting events; (3) during highlights, replays or on-demand sporting events (including via internet streaming); and (4), via signage (including electronic signage), branding, or promotion as part of sponsoring a sporting event, club, or venue. In the light of the June 2023 Senate Committee Report on online gambling, the possibility of more wide-ranging reforms, including a ban on all advertisements of online gambling on sport, may even be achievable. That particular reform is one that we would support.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135982509","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}
{"title":"Open Justice, Closed Courts and the Constitution","authors":"Kieran Pender","doi":"10.38127/uqlj.v42i2.7355","DOIUrl":"https://doi.org/10.38127/uqlj.v42i2.7355","url":null,"abstract":"Open justice is an essential feature of the judiciary, in Australia and elsewhere. The principle has constitutional salience, as an element of judicial power in Chapter III of the Constitution. Yet open justice is not absolute. In recent years, the tension between open justice and national security has been a matter of public controversy in Australia, as a result of the Bernard Collaery, Witness K and Witness J prosecutions, which have all been shrouded in secrecy. Reconciling open justice with the confidentiality required to protect national security is a common challenge for many jurisdictions. This Article compares the Australian approach with the United Kingdom and Canada. It argues that Australian law and practice in relation to protecting open justice in the national security context is underdeveloped. Drawing on the British and Canadian experience, the Article proposes methods to better balance these competing interests in Australia, in a manner which would reflect emerging constitutional principles.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":"82 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136071217","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}
{"title":"'Embarrasing and Even Ridiculous'","authors":"I. Loveland","doi":"10.38127/uqlj.v42i1.6679","DOIUrl":"https://doi.org/10.38127/uqlj.v42i1.6679","url":null,"abstract":"This paper examines the brief lifespan (1907–20) of ‘Two Act’ entrenchment, a curious constitutional law idea which emerged in Queensland in the early 1900s. Its origins lay in an argument formulated by Queensland’s then Chief Justice, Pope Cooper, qua defendant in criminal proceedings arising from his refusal to pay income tax on his judicial salary. That argument was that the Constitution Act 1867 (Qld) was a form of ‘fundamental’ or ‘organic’ law which could not be altered by legislation passed in the ordinary way, but which could be changed only by a Two Act legislative process in which the Legislature in Act 1 expressly empowered itself to alter the relevant provision and then in Act 2, again expressly, enacted the relevant alteration. The article considers how it was that an idea which had no textual basis in either Imperial or colonial legislation, for which there was no supportive judicial authority, and which had no precedent in Queensland’s legislative practice, was repeatedly upheld by Queensland’s Supreme Court and Australia’s High Court before being dismissed as wholly without merit by the Privy Council in McCawley v The King; but dismissed in terms which laid the foundation for the Privy Council’s subsequent approval of the proposition (in Trethowan v Attorney-General of New South Wales) that Australia’s State legislatures did indeed possess the legislative competence to enact judicially enforceable entrenchment devices to prevent certain laws being enacted through the ordinary lawmaking process.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41812531","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}
{"title":"The Academy and the Courts","authors":"Rachel Klesch, Guzyal Hill, David Price","doi":"10.38127/uqlj.v42i1.6741","DOIUrl":"https://doi.org/10.38127/uqlj.v42i1.6741","url":null,"abstract":"In a recent article, Chief Justice of the High Court of Australia Susan Kiefel’s vision explores the symbiotic relationships between the courts and the academy, suggesting that academic writing can be a valuable resource for the judiciary. This suggestion raises the question, propounded in this article, that there is value for both the judiciary and academy to identify what judges cite and where academies should aim to publish. The literature review reveals two different approaches to academic citations, namely, that the High Court of Australia regularly cites the academy, but state supreme courts rarely cite academic material. This article aims to fill a gap in the existing literature to examine citation practices in two Australian territories: the Northern Territory and the Australian Capital Territory. Using the law-as-data and citation counting method, the article examines data published from 2010 to 2019 by the supreme courts of the two territories. It compares this data to the existing research of the state supreme courts and finds that the citation patterns of the supreme courts in the territories are consistent with those in the existing literature: in brief, the judiciary cite few publications, predominantly books. The data shows that there is a trend of decline in citing academic work by the judiciary in both territories. This trend is alarmingly problematic for the academy writing for the judiciary, and the potential of a flow-on effect of an ongoing and detrimental diminution of the symbiotic relationship envisioned by Kiefel CJ. ","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-05-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48798628","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}
{"title":"Evaluating the Merits of Queensland's New Shield Law","authors":"Adam Lukacs","doi":"10.38127/uqlj.v42i1.6549","DOIUrl":"https://doi.org/10.38127/uqlj.v42i1.6549","url":null,"abstract":"This article provides the first comprehensive analysis of Queensland’s new ‘journalist privilege’ provisions (or ‘shield law’), introduced into Div 2B of the Evidence Act 1977 (Qld) in 2022, and evaluates the merits of these provisions against comparable legislation in other jurisdictions. This article aims to inform law reform to protect press freedom by recommending that shield laws across Australia be amended to adopt the favourable aspects of Queensland’s new shield law. Conversely, the article also argues that the shortfalls in Queensland’s own shield law, and the shield laws of other jurisdictions, can be rectified by incorporating into them the beneficial features of shield laws nationwide. Doing so would produce a uniform and exemplar shield law which provides uniform protections in all Australian jurisdictions.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-05-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45937075","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}
{"title":"The 22nd WA Lee Equity Lecture","authors":"The Hon Sarah C Derrington","doi":"10.38127/uqlj.v42i1.7819","DOIUrl":"https://doi.org/10.38127/uqlj.v42i1.7819","url":null,"abstract":"18 November 2021, Banco Court, Supreme Court of Queensland.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-05-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46964926","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}
{"title":"Does it Exist? LibertyWorks and Australia’s Shrinking Implied Freedom of Political Communication","authors":"Sarah Sorial, Shireen Morris","doi":"10.38127/uqlj.v42i1.6479","DOIUrl":"https://doi.org/10.38127/uqlj.v42i1.6479","url":null,"abstract":" \u0000In this article we examine the recent High Court decision in LibertyWorks Inc v Commonwealth of Australia (‘LibertyWorks’). We argue that this decision fails to properly apply the implied freedom of political communication (the ‘implied freedom’) in four principle ways. First, the majority judgments do not properly grapple with the complexities of legislative purpose. The Foreign Influence Transparency Scheme Act 2018 (Cth) (‘FITS Act’) targets foreign influence rather than just covert and corrupt foreign interference, yet the judgements blur this important distinction throughout. If the true legislative purpose of the FITS Act is to increase transparency to prevent foreign influence, this purpose is illegitimate and incompatible with Australia’s representative government, so the FITS Act should fail on this basis. Alternatively, if the true purpose is to increase transparency to prevent foreign interference, that legislative purpose is not served by the scheme, because it is ineffective in achieving its aim. Second, the majority in LibertyWorks do not properly assess the legislative breadth of the FITS Act, including the wide range of actors to which the obligations to register relate. This, we suggest, imposes a broad and, arguably, unbalanced burden on free debate. Third, the majority do not pay sufficient regard to the different tiers of registration, which create not only public, but also private (and therefore unjustified) catalogues of information. Finally, Steward J’s constitutionally conservative (yet paradoxically activist) claim that the implied freedom may not exist appears to invite a future constitutional challenge to the implied freedom. We argue his Honour may be right, but not for the reasons he elucidates. In our view, the implied freedom was essentially non-existent in this case because it was not robustly applied by the High Court.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-05-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41432004","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}
{"title":"Attacking the 'New Right', Australian Law Reviews and the Peer Review Process","authors":"James Allan","doi":"10.38127/uqlj.v42i1.7505","DOIUrl":"https://doi.org/10.38127/uqlj.v42i1.7505","url":null,"abstract":"In a just published issue in one of Australia’s oldest and best-known law reviews, the Federal Law Review, Dr Harry Hobbs of the University of Technology Sydney has written an article that comes out swinging (read on to see that that is, if anything, a mild description) against critics of three High Court of Australia cases. The three judgments are separated by 28 years in total, but Hobbs lumps them — or rather various critics of any one of these three decisions — together as part of a supposedly coherent and like-minded whole. I am one of those thus lumped, which is why I am taking the time to offer up this brief reply, though there are dozens of others also so categorised.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-03-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47858117","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}
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