{"title":"Examining the Criminal Regime in Chapter 7 of the Corporations Act 2001","authors":"Stephen Speirs","doi":"10.38127/uqlj.v40i2.5451","DOIUrl":"https://doi.org/10.38127/uqlj.v40i2.5451","url":null,"abstract":" The criminal regime in Chapter 7 of the Corporations Act 2001 (Cth) contains 299 separate offences and is extremely complex. This paper undertakes the first detailed examination of the criminal regime in Chapter 7 in anticipation of an increase in criminal prosecutions of financial services misconduct following the Royal Commission into Misconduct in the Superannuation, Banking and Financial Services Industry. The review uncovers a number of drafting anomalies and inconsistencies in the criminal regime. In light of these issues, the paper advocates simplification of the criminal regime and puts forward reform proposals aimed at fostering compliance and observance of the law.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-06-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46759953","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 Fate of Class Action Common Fund Orders","authors":"V. Waye, M. Duffy","doi":"10.38127/uqlj.v40i2.5435","DOIUrl":"https://doi.org/10.38127/uqlj.v40i2.5435","url":null,"abstract":"Common Fund Orders’ (CFOs) have had a significant effect on Australian third party-funded class actions by requiring all class members to make a contribution to the third-party litigation funder’s fee in the event of a successful outcome. This altered past practice whereby only class members who had contracted with the litigation funder would be liable for such a contribution. However in a 5:2 decision in BMW Australia Ltd v Brewster in 2019, the High Court cast some doubt on CFOs, determining that neither s 33ZF Federal Court of Australia Act 1976 (Cth) nor s 183 Civil Procedure Act 2005 (NSW) provided a legal basis for making CFOs at the outset of proceedings so as to secure litigation funding support. In late 2020, the Commonwealth Parliamentary Joint Committee (PJC) on Corporations and Financial Services recommended that legislation be enacted to ‘address uncertainty’ in Brewster in a manner that would enable CFOs to be made at settlement or judgment. The authors canvass normative arguments as to the merits of CFOs and compare the alternative practice of making Funding Equalisation Orders (FEOs). They also consider the related issue of courts setting overall funding commissions. Given the possibility of legislative intervention, they also review arguments as to the potential constitutional validity of CFOs, a matter that was raised, but received very limited treatment from the High Court in BMW.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-06-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43698461","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":"Constitutional Idolatry and Democracy","authors":"Renato Saeger M Costa","doi":"10.38127/uqlj.v40i2.5689","DOIUrl":"https://doi.org/10.38127/uqlj.v40i2.5689","url":null,"abstract":"This thought-provoking book by Brian Christopher Jones entitled Constitutional Idolatry and Democracy begins by retelling the moment when, during the highly disputed election period of 2016 in the United States of America, an elector waived his pocket-sized US Constitution before Donald Trump. The gesture was a symbol. A silent but taunting manifestation against the president-to-be, and his supposed lack of understanding of the nation’s ‘most sacred values and principles’ (p. 1). The whole scene and the events that followed (including the spike in sales of pocket-version constitutions) were an expression of a deeper sentiment common to, but not exclusive of, the United States of America: constitutional idolatry.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":"48 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-06-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82677972","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":"A Uniform Hermeneutic Thesis","authors":"N. Tiverios","doi":"10.38127/uqlj.v40i2.5483","DOIUrl":"https://doi.org/10.38127/uqlj.v40i2.5483","url":null,"abstract":"At a broad level of generality, the orthodox approach to interpreting contracts, trusts, wills, security documents, company constitutions and so forth is the same: a search for the objective meaning to be attributed to the author or authors of the instrument (the ‘uniform hermeneutic thesis’). This article has two primary objectives. The first is to respond to a common criticism of this uniform objective approach. The criticism is that, as each species of legal obligation is different, different rules of interpretation should apply when the given legal context changes. For example, why not ask the settlor of an inter vivos trust what she meant to say when an interpretational dispute arises? The second reason is to demonstrate that the explanations most commonly given in defence of an objective approach to interpretation, namely to promote legal certainty and economic efficiency, fail to capture the essential reason why the objective approach permeates the general law. The thesis put forward in this article is that an objective theory of interpretation is a justifiable aspect of private law because language (being a form of communication) does not operate unilaterally, but rather requires stable and dependable shared conventions. This argument is supported by the further claim that, where the author of a legal instrument utilises these publicly recognised conventions in order to affect her or his legal relations with others, she or he ought to be bound by those conventions. One cannot have the benefit of ‘conventions for me but not for thee’.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-04-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44770327","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":"State Consent to the Provision of Humanitarian Assistance in Non-International Armed Conflicts","authors":"J. Schaffer","doi":"10.38127/uqlj.v40i1.5645","DOIUrl":"https://doi.org/10.38127/uqlj.v40i1.5645","url":null,"abstract":"In light of repeated denials and obstruction of relief efforts by belligerent states, particularly when directed towards non-state armed groups designated as terrorist groups or justified as a legitimate response to the COVID-19 pandemic, this article provides a comprehensive analysis of the international legal position regarding the provision of humanitarian assistance in non-international armed conflicts. The article argues that although a general right of access has not crystalised, relief operations into territory under the effective control of a non-state armed group without state consent may be permissible with Security Council authorisation or otherwise, in appropriate circumstances, under the rules of state responsibility. More broadly, belligerent parties must abide by their legal obligations to ensure that the needs of civilians are met.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-03-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70189765","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":"'Part of the Future'","authors":"Felicity Bell","doi":"10.38127/uqlj.v40i1.5619","DOIUrl":"https://doi.org/10.38127/uqlj.v40i1.5619","url":null,"abstract":"\u0000 \u0000 \u0000In March 2020, the family law courts, like other Australian courts, moved to hearing proceedings ‘remotely’, by phone, audio-visual link or software platform. This article examines the particular circumstances of family law cases that likely impact on whether it is appropriate for remote procedures to be used. Giving context to these themes, the article reports on a survey of Australian federal judicial officers about their experiences of conducting family law proceedings remotely. \u0000 \u0000 \u0000","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-03-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46499789","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":"Sexual Assault on Campus","authors":"Clare Foran","doi":"10.38127/uqlj.v40i1.5641","DOIUrl":"https://doi.org/10.38127/uqlj.v40i1.5641","url":null,"abstract":"This article examines the case of Y v University of Queensland and the issue of university disciplinary action in cases of student-on-student sexual assault. In addition to the question of whether universities have legal jurisdiction to decide these matters, there is the more fundamental question of whether they should. Using Martha Fineman’s theory of vulnerability as a theoretical lens, this article seeks to evaluate whether accusations of sexual assault should be treated exclusively as police matters or whether universities have a moral obligation to take independent action.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-03-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47592449","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":"Legal Transplants in East Asia and Oceania","authors":"Tony Angelo","doi":"10.38127/uqlj.v40i1.5647","DOIUrl":"https://doi.org/10.38127/uqlj.v40i1.5647","url":null,"abstract":"This book provides a rich source of material and a significant resource on the topicof legal transplants. The 14 specialist authors present informative and usefullyinterlocking chapters of both a theoretical and specific case nature.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-03-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46908721","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":"Judicial Activism and Constitutional (Mis) Interpretation","authors":"Johnny M Sakr, Augusto Zimmermann","doi":"10.38127/uqlj.v40i1.5643","DOIUrl":"https://doi.org/10.38127/uqlj.v40i1.5643","url":null,"abstract":"In this article, the authors explore the concept of judicial activism and its application in the Australian domestic cases of Australian Capital Television Pty Ltd v Commonwealth and Love v Commonwealth, and in the US case of Obergefell v Hodges. The article highlights the devastating effects of judicial activism on legal interpretation, arguing that such activism compromises the doctrine of separation of powers and affects the realisation of the rule of law, resulting in a method ofinterpretation that incorporates personal biases and political opinion, thus ignoring the original intent of the framers of the Australian Constitution. Moreover, the article highlights that implementing a federal Bill of Rights might further exacerbate these ongoing problems concerning judicial activism in Australia.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-03-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42318262","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":"Protecting and Restoring Queensland's Coastal Wetlands","authors":"Evan Hamman, J. Purandare, Revel Pointon","doi":"10.38127/uqlj.v39i3.5653","DOIUrl":"https://doi.org/10.38127/uqlj.v39i3.5653","url":null,"abstract":"Coastal wetlands provide vital ecosystem services, including nutrient cycling, disaster risk reduction, and habitat for biodiversity, including shorebirds, seabirds, turtles and fish. How we design and implement policy approaches for the conservation of coastal wetlands and these ecosystem services matters enormously. This article joins a growing trend of literature that seeks to not only identify the importance of coastal wetlands, but also to consider how best to devise policy measures for their protection and restoration. The article focuses on Queensland’s coastal wetlands and suggests that the state has a real opportunity to become a national leader in wetland restoration. For that to occur, new legislative measures may be required to address issues such as tenure, land access, planning and risk management.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-12-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42329100","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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