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The Academy and the Courts 学院和法院
The University of Queensland law journal Pub Date : 2023-05-29 DOI: 10.38127/uqlj.v42i1.6741
Rachel Klesch, Guzyal Hill, David Price
{"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}
引用次数: 0
Evaluating the Merits of Queensland's New Shield Law 评估昆士兰新盾牌法的优点
The University of Queensland law journal Pub Date : 2023-05-29 DOI: 10.38127/uqlj.v42i1.6549
Adam Lukacs
{"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}
引用次数: 0
The 22nd WA Lee Equity Lecture 第22届WA Lee股权讲座
The University of Queensland law journal Pub Date : 2023-05-22 DOI: 10.38127/uqlj.v42i1.7819
The Hon Sarah C Derrington
{"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}
引用次数: 0
Does it Exist? LibertyWorks and Australia’s Shrinking Implied Freedom of Political Communication 它存在吗?LibertyWorks和澳大利亚缩水的隐含政治传播自由
The University of Queensland law journal Pub Date : 2023-05-22 DOI: 10.38127/uqlj.v42i1.6479
Sarah Sorial, Shireen Morris
{"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}
引用次数: 0
Attacking the 'New Right', Australian Law Reviews and the Peer Review Process 攻击“新权利”，澳大利亚法律评论和同行评议过程
The University of Queensland law journal Pub Date : 2023-03-07 DOI: 10.38127/uqlj.v42i1.7505
James Allan
{"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}
引用次数: 0
The Inconsistency of the 'Lawful Correction' of Children Defence with Queensland's New Human Rights Act 儿童辩护的“合法纠正”与昆士兰新人权法的不一致
The University of Queensland law journal Pub Date : 2023-01-25 DOI: 10.38127/uqlj.v41i3.6439
Sienna McInnes-Smith
{"title":"The Inconsistency of the 'Lawful Correction' of Children Defence with Queensland's New Human Rights Act","authors":"Sienna McInnes-Smith","doi":"10.38127/uqlj.v41i3.6439","DOIUrl":"https://doi.org/10.38127/uqlj.v41i3.6439","url":null,"abstract":"Despite persistent criticism from international human rights bodies and experts, Queensland continues to permit the ‘lawful correction’ of children as a defence to criminal offences committed against them. The recent introduction of a human rights framework in Queensland further highlights the disconnect between the State’s correction defence, contemporary understanding of the deleterious effects of physically punishing children, and children’s human rights principles. This article examines this disconnect and the consistency of the Queensland defence with the Human Rights Act 2019 (Qld). To this end, it outlines the current position in the medical and psychological literature that corporal punishment has severe consequences for children. It also explains the scope of the Queensland defence and compares it to other Australian jurisdictions. The article then turns to an analysis of the consistency between the defence and the Human Rights Act. It concludes that the defence repudiates human rights guarantees in Queensland, as well as the international framework for children’s rights, and identifies avenues for reform.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-01-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47497412","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: 1
Native Title Rights to Take Resources 原住民取得资源的所有权
The University of Queensland law journal Pub Date : 2022-12-08 DOI: 10.38127/uqlj.v41i3.6255
Catriona Stride
{"title":"Native Title Rights to Take Resources","authors":"Catriona Stride","doi":"10.38127/uqlj.v41i3.6255","DOIUrl":"https://doi.org/10.38127/uqlj.v41i3.6255","url":null,"abstract":"Native title rights to take resources for unconstrained or commercial purposes were first recognised almost a decade ago, but the significance and uptake of such rights in Australia is now heightened. Resource ownership and management are critical components of global sustainable development and Indigenous interest holders play a key role in that space. The gradual acceptance of resource use by traditional owners in a modern economy reflects more developed trends overseas such as in Canada. Reluctance to concede the commercial exercise of native title rights may be due not only to evidential thresholds (required by state governments to enter consensual determinations), but also concerns about the possible consequential legal impacts for those governments and other interest holders. This article considers potential consequences of recognising native title rights to take resources for any purpose in several developing areas of native title jurisprudence including: quantum of native title compensation, the regulation of native title under resource management legislation enacted since the Native Title Act 1993 (Cth), competing claims to resource ownership and use, and the risks for government where prior assumptions of resource ownership are displaced by determined native title.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-12-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41868039","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
What Did Queenslanders Think of Human Rights in 2021? 2021年昆士兰人对人权的看法?
The University of Queensland law journal Pub Date : 2022-11-22 DOI: 10.38127/uqlj.v41i3.6245
S. Joseph, Susan Gail Harris Rimmer, Lane Christian
{"title":"What Did Queenslanders Think of Human Rights in 2021?","authors":"S. Joseph, Susan Gail Harris Rimmer, Lane Christian","doi":"10.38127/uqlj.v41i3.6245","DOIUrl":"https://doi.org/10.38127/uqlj.v41i3.6245","url":null,"abstract":"In late July 2021, we conducted a survey of attitudes to human rights in Queensland, as well as to the new Human Rights Act 2019 (Qld). Our empiric research questions include: what are community attitudes to human rights; how do people perceive the level of respect and protection for human rights in Queensland; how do attitudes differ between certain demographic groups regarding human rights and the enjoyment of those rights in Queensland; how well does the public know the Human Rights Act, and how should human rights be enforced in Queensland? Our overall question addresses how these results may guide recommendations for human right policy moving forward, including the implementation of legislation in a manner that promotes and protects human rights at a community level.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-11-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45572079","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
A Critique of the Theory of Comparative Propensity 比较倾向理论批判
The University of Queensland law journal Pub Date : 2022-11-20 DOI: 10.38127/uqlj.v41i3.6357
Peter Robinson
{"title":"A Critique of the Theory of Comparative Propensity","authors":"Peter Robinson","doi":"10.38127/uqlj.v41i3.6357","DOIUrl":"https://doi.org/10.38127/uqlj.v41i3.6357","url":null,"abstract":"The law of propensity evidence is in a state of flux in Australia as various State jurisdictions decide on their responses to recommendations of the Royal Commission Into Institutional Responses to Child Sexual Abuse.  Controversy persists about the probative value of such evidence, not limited to child sexual assault cases. An influential theory in this area is the theory of comparative propensity, advocated by Professor Hamer, and approved in a qualified way by the Royal Commission.  The theory employs a mathematical model based on Bayes’ equation to estimate the probative value of such evidence. This article critiques the theory and concludes that it does not reflect the real world factors that impact the probative value of such evidence.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-11-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45237574","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
Renegotiation in the Real World: A Study of Australian Small to Medium-Sized Enterprises, Contract Variation, and the Law 现实世界中的再谈判——澳大利亚中小企业、合同变更与法律研究
The University of Queensland law journal Pub Date : 2022-11-16 DOI: 10.38127/uqlj.v41i3.6429
M. Giancaspro
{"title":"Renegotiation in the Real World: A Study of Australian Small to Medium-Sized Enterprises, Contract Variation, and the Law","authors":"M. Giancaspro","doi":"10.38127/uqlj.v41i3.6429","DOIUrl":"https://doi.org/10.38127/uqlj.v41i3.6429","url":null,"abstract":"The small to medium-sized enterprise (SME) sector is the largest and most productive in Australia. Like all established market-based economies, ours is characterised by the use of contracts as a mechanism for exchange. Contracts often require variation in response to variables such as under-pricing, resource availability, changes in scope, and rising product costs, so SMEs (and larger businesses) will frequently encounter the process of renegotiation. The rules applicable to contract renegotiation seldom receive attention in academic writing. Moreover, the attitudes toward, understandings of, and experiences with the doctrine of renegotiation among Australian SMEs are scarcely researched. This article expounds the law of renegotiation before reporting on selected findings from a largescale empirical study designed to fill these knowledge gaps, among others, in the literature. The results provide invaluable insight into how this critically important sector perceives and deals with contract law and the doctrine of renegotiation and underscores potential areas for improvement.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-11-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47976830","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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