Breathing Life into the Human Rights Act 2019 (Qld): The Ethical Duties of Public Servants and Lawyers Acting for Government
Much of the work of government is carried out by public servants with the assistance of lawyers. Because the Human Rights Act 2019 (Qld) (‘Human Rights Act’) is intended to change the way government works, it also has consequences for the way public servants and lawyers carry out the work of government. This article explores the impact of the Human Rights Act on the ethical duties of public servants to give frank advice and to implement policy decisions faithfully, as well as the ethical duty of lawyers to act in their client’s best interests. While the Human Rights Act brings a new rigour to the frank advice that public servants must give, they must still respect the ultimate decision of the government of the day. Similarly, the Human Rights Act brings lawyers closer to the edge of legal and policy advice, but this article puts forward a ‘supervisory’ approach as one way that lawyers can avoid straying too far into policy development and debate. The Human Rights Act breathes new life into old ethical duties by reminding us of the importance of candour and fidelity. Equally, frank advice and collaboration between lawyers and policy officers breathe life into the ambition of the Human Rights Act.
The University of Queensland Law Journal; Vol. 41 No. 1 (2022): The University of Queensland Law Journal; 1-34
The University of Queensland School of Law
Copyright (c) 2022 The University of Queensland Law Journal
Native Title Rights to Take Resources: Emerging Issues in Relation to Commercial Rights
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.
The University of Queensland Law Journal; Vol. 41 No. 3 (2022): The University of Queensland Law Journal; 277-297
What Did Queenslanders Think of Human Rights in 2021? An Attitudinal Survey
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.
The University of Queensland Law Journal; Vol. 41 No. 3 (2022): The University of Queensland Law Journal; 363-428
Should Judges Join In? A Normative Study of Joint Judgments in Selected Australian Intermediate Appellate Courts
In the light of both the Chief Justice of the High Court of Australia Susan Kiefel’s extra-judicial comments on the ‘institutional responsibility’ of appellate courts to decide cases by joint judgment where possible, and literature that indicates an increase in the expression of reasons through joint judgment in the High Court of Australia since the beginning of former Chief Justice Robert French’s tenure, there has been much debate on the desirability of joint judgments. In this article, I present empirical information on selected New South Wales and federal intermediate appellate court judgment writing practices from 2009 to 2019. I do so to address former President of the New South Wales Court of Appeal Margaret Beazley’s ‘dalliance on a curiosity’1 concerning both joint judgment trends and whether Australian intermediate appellate courts should, given the example set by certain Justices of the High Court, preference joined reasons to separate individual concurrences.
The University of Queensland Law Journal; Vol. 40 No. 3 (2021): The University of Queensland Law Journal; 555-592
Lost in Translation: Indonesian Language Requirements and the Validity of Contracts
This article investigates Indonesian laws that require contracts to be in the Indonesian language if a party is Indonesian or an Indonesian entity is ‘involved’. It identifies the problems this creates for business arrangements in Indonesia, particularly those involving investors from English-speaking backgrounds. The article begins with an account of relevant Indonesian statutes and regulations before exploring a series of judicial decisions regarding language requirements for a valid contract. It finds that the Indonesian courts have been inconsistent in their application of law in this area, and that this has created significant uncertainty. It then examines the implications of this situation for legal practice, showing that it has led to increased risks and costs for foreign and local businesses. It concludes with two alternative proposals for reform.
The University of Queensland Law Journal; Vol. 40 No. 3 (2021): The University of Queensland Law Journal; 531-554
Foreword to UQLJ Special Edition on Climate Change, the Law and Legal Education
Few people reading this will need reminding of the challenge that climate change poses. The need for urgent action to address climate change is clear. While law cannot solve the climate crisis, lawyers can and must play an important part in our response.
The University of Queensland Law Journal; Vol. 40 No. 3 (2021): The University of Queensland Law Journal; i-iv
Regulating Hidden Risks to Conservation Lands in Resource Rich Areas
Australia leads the world in formally dedicating private land to environmental conservation, helping governments protect critical biodiversity without straining the public purse. In Queensland, the booming resources sector threatens this biodiversity protection, even beyond landholders’ well-recognised lack of veto power over mining approvals on their land. Three structural legal biases increase this vulnerability. To differing degrees, Queensland’s laws assume that mining affects only land under or adjoining mining tenures, overlooking scientifically likely longer-distance impacts (‘boundary bias’); they emphasise protecting built and commercial infrastructure over ecological assets, overlooking significant investment in species and ecosystems (‘infrastructure bias’); and they allow consideration of proposed mining in isolation, without considering cumulative impacts on ecological assets (‘singularity bias’). Fortunately, Queensland law and policy precedents suggest potential corrective reforms.
The University of Queensland Law Journal; Vol. 40 No. 3 (2021): The University of Queensland Law Journal; 491-530
A Review of the New Legislative Definition of Consent in Queensland: An Opportunity for Western Australia?
consent, sexual offences, assault, communication model, withdrawal
This article examines recent amendments to the definition of consent in the Queensland Criminal Code, with a view to recommending amendments to the Western Australian Criminal Code. Comparative and doctrinal methodology are used to identify shortcomings in the definition of consent in the Western Australian Code, and how these might be remedied. Given the different origins and form of criminal law across Australian states and territories, the definition of consent has naturally varied. In some instances, these variations are semantic, and the content of the law is uniform. In other cases, interpretive ‘grey areas’ exist, with the very real consequence that the concept and content of ‘consent’ may operate differentially across state borders. Given the shared genesis (and current similarity) of the Queensland and Western Australian Criminal Codes, there are few reasons for their definitions of consent to vary in form and substance.
The University of Queensland Law Journal; Vol. 41 No. 2 (2022): The University of Queensland Law Journal
First Nations Peoples, Climate Change, Human Rights and Legal Rights
This article provides a First Nations standpoint on climate change, informed by human rights law and legal education. It is co-authored by a Yuin woman who is a law academic, a Wirdi man who is a Queens Counsel, and a human rights law academic. The article argues that for any responses to climate change to be effective, they must be grounded in the perspectives, knowledge, and rights of First Nations peoples. The utility of human rights instruments to protect First Nation interests in a climate change milieu is explored at the international and domestic levels. Concomitantly, structural change must begin with the Indigenisation of legal education and the embedding of legal responses to climate change into the law curriculum. A holistic approach is necessary.
The University of Queensland Law Journal; Vol. 40 No. 3 (2021): The University of Queensland Law Journal; 371-402
Copyright (c) 2021 The University of Queensland Law Journal
Pairing International Taxation and Conflict of Laws: Common Challenges and Reciprocal Lessons
This article explores the relationship between two legal fields which represent the legal backbone of contemporary cross-border and Internet commercial activity: conflict of laws and international taxation. Despite the growing significance of the two fields of law, legal scholarship has yet to explore their intriguing relationship. Which state can levy tax on a multi-billion-dollar Delaware (US) corporation with headquarters in London (UK) that sells $500,000,000 worth of products to Australian consumers each year? Which law should adjudicate an online contract between a NSW corporation and a German corporation, signed online and addressing the delayed delivery of goods in Brazil due to the coronavirus outbreak? Despite the paramount significance of both disciplines, their traditional underpinnings appear to be fundamentally challenged and pressed by the realities of COVID-19, dynamic commerce and the digital environment. Our cross-disciplinary partnership aims to design a unifying conceptual framework that captures the essentials of both disciplines. Through reciprocal lessons, this framework will help address the uncertainty in both disciplines.