{"title":"Tort Law and Climate Change","authors":"W. Bonython","doi":"10.38127/uqlj.v40i3.6043","DOIUrl":"https://doi.org/10.38127/uqlj.v40i3.6043","url":null,"abstract":"Tort law presents doctrinal barriers to plaintiffs seeking remedies for climate change harms in common law jurisdictions. However, litigants are likely to persist in pursuing tortious causes of action in the absence of persuasive policy and regulatory alternatives. Ongoing litigation in Smith v Fonterra Co-operative Group Ltd in New Zealand and Sharma v Minister for Environment in Australia highlights tensions between torts doctrine and climate change litigation in both countries. Regardless of its ultimate outcome, that litigation provides a valuable opportunity to integrate theoretical questions about the legitimacy of judicial lawmaking, and intersectional critical legal perspectives, into the teaching of torts. ","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-11-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46631726","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":"Climate Change and Law","authors":"Margaret A Young","doi":"10.38127/uqlj.v40i3.6045","DOIUrl":"https://doi.org/10.38127/uqlj.v40i3.6045","url":null,"abstract":"Climate change is a global problem. This characterisation has major consequences for international law, domestic law and legal education. Drawing on legal developments, scholarship and pedagogy, this article has three main claims. First, it argues that lawyers dealing with climate change require proficiency across different areas of law, not just the law that seeks to limit greenhouse gas emissions. Secondly, to better understand how these areas of law fit together, and how they should fit together, the article points to relevant theories, including ideas relating to fragmentation and regime interaction within international law. Thirdly, the article examines ways in which legal education can encourage ethical and moral evaluations as well as strategic awareness, especially to ensure that legal action to address climate change does not perpetuate inequalities and injustice within the community of states. Legal education and law have important roles in mitigating climate change and in fostering a sensibility that recognises the unequal burdens between and within countries. In training the arbiters of global destiny, today’s law schools must continue to critique the law’s relationship with modern production and consumption patterns. ","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-11-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43699027","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":"'It Makes No Difference What We Do'","authors":"J. Crowe","doi":"10.38127/uqlj.v40i3.6033","DOIUrl":"https://doi.org/10.38127/uqlj.v40i3.6033","url":null,"abstract":"\u0000 \u0000 \u0000Opposition to collective action on climate change takes at least two forms. Some people deny that climate change is occurring or that it is due to human activity. Others maintain that, even if climate change is occurring, we have no duty to do anything about it because our efforts would be futile. This article rebuts the latter line of argument. I argue that: (1) everyone has a duty to do their share for the global common good, which includes doing one’s part to combat climate change; (2) the idea that taking action against climate change is futile should be treated with caution, because sometimes actions may seem to make no difference to climate change, when really they do; (3) in any event, the duty to do one’s share to combat climate change still applies, even if it is ultimately futile; and (4) this is because not doing one’s share for the common good harms oneself, regardless of whether it makes any difference to the wider outcome. \u0000 \u0000 \u0000","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-11-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43572429","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":"Authority to Decide","authors":"L. Aitken","doi":"10.38127/uqlj.v40i2.5777","DOIUrl":"https://doi.org/10.38127/uqlj.v40i2.5777","url":null,"abstract":"\u0000 \u0000 \u0000To realise that there is no Court in Australia with unlimited jurisdiction is at one stroke to recognise the continuing importance of Justice Leeming’s standard work, and the relevance of this second edition. The ‘autochthonous expedient’, as Sir Owen Dixon named it, has much to answer for: it leads inexorably to a bifurcated system of state and federal courts, which has many toils and snares for the unwary. To compound the problem, the state courts enjoy a large amount of ‘invested’ federal jurisdiction, which means that on many occasions they exercise it without appreciating the fact that they have done so. \u0000 \u0000 \u0000","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":"113 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-08-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41256089","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 Right to Liberty in a Pandemic","authors":"Rebekah E. McWhirter","doi":"10.38127/uqlj.v40i2.5721","DOIUrl":"https://doi.org/10.38127/uqlj.v40i2.5721","url":null,"abstract":"\u0000 \u0000 \u0000The European Convention on Human Rights has given rise to the most extensive and influential case law of any human rights jurisdiction, and the inclusion of an express infectious diseases exception to the right to liberty suggests that its jurisprudence is likely to provide the best available guidance to states on the circumstances in which such measures may be justifiable and lawful. However, this article argues that the principles developed to date are limited in their applicability to the current crisis, and are insufficient for determining the appropriate balance between public health and the right to liberty when seeking to control the spread of a large-scale, highly infectious disease. \u0000 \u0000 \u0000","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-07-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42693746","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":"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":"Design of a Vibration-Enhanced Granular Jamming-Based Soft Robot Gripper","authors":"Raghav Mishra","doi":"10.14264/6b92258","DOIUrl":"https://doi.org/10.14264/6b92258","url":null,"abstract":"","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-06-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"147882343","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}
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