Legal History Matters: From Magna Carta to the Clinton Impeachment
description: Legal history is sometimes seen, to quote William Wordsworth, as little more than the study of ‘old, unhappy, far-off things’.1 Paul Finn recently observed that legal history has, ‘for the most part, … been marginalised to the point of near extinction’.
creator: Swain, Warren
source: The University of Queensland Law Journal; Vol. 40 No. 1 (2021): The University of Queensland Law Journal; 154-157
source: 1839-289X
source: 0083-4041
source: 10.38127/uqlj.v40i1
publisher: The University of Queensland School of Law
date: 2021-03-26
rights: Copyright (c) 2021 The University of Queensland Law Journal
format: application/pdf
language: eng
type: info:eu-repo/semantics/article
type: info:eu-repo/semantics/publishedVersion
type: Book review

Legal Transplants in East Asia and Oceania
description: 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.
creator: Angelo, Tony
source: The University of Queensland Law Journal; Vol. 40 No. 1 (2021): The University of Queensland Law Journal; 149-153
source: 1839-289X
source: 0083-4041
source: 10.38127/uqlj.v40i1
publisher: The University of Queensland School of Law
date: 2021-03-26
rights: Copyright (c) 2021 The University of Queensland Law Journal
format: application/pdf
language: eng
type: info:eu-repo/semantics/article
type: info:eu-repo/semantics/publishedVersion
type: Book review

State Consent to the Provision of Humanitarian Assistance in Non-International Armed Conflicts
description: 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.
creator: Schaffer, Jessica
source: The University of Queensland Law Journal; Vol. 40 No. 1 (2021): The University of Queensland Law Journal; 67-89
source: 1839-289X
source: 0083-4041
source: 10.38127/uqlj.v40i1
publisher: The University of Queensland School of Law
date: 2021-03-26
rights: Copyright (c) 2021 The University of Queensland Law Journal
format: application/pdf
language: eng
type: info:eu-repo/semantics/article
type: info:eu-repo/semantics/publishedVersion
type: Peer-reviewed Article

Judicial Activism and Constitutional (Mis) Interpretation: A Critical Appraisal
description: 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.
creator: M Sakr, Johnny
creator: Zimmermann, Augusto
source: The University of Queensland Law Journal; Vol. 40 No. 1 (2021): The University of Queensland Law Journal; 119-148
source: 1839-289X
source: 0083-4041
source: 10.38127/uqlj.v40i1
publisher: The University of Queensland School of Law
date: 2021-03-26
rights: Copyright (c) 2021 The University of Queensland Law Journal
format: application/pdf
language: eng
type: info:eu-repo/semantics/article
type: info:eu-repo/semantics/publishedVersion
type: Peer-reviewed Article

Sexual Assault on Campus: Not Just a Policy Matter - a Response to Y v University of Queensland
description: 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.
creator: Foran, Clare
source: The University of Queensland Law Journal; Vol. 40 No. 1 (2021): The University of Queensland Law Journal; 91-118
source: 1839-289X
source: 0083-4041
source: 10.38127/uqlj.v40i1
publisher: The University of Queensland School of Law
date: 2021-03-26
rights: Copyright (c) 2021 The University of Queensland Law Journal
format: application/pdf
language: eng
type: info:eu-repo/semantics/article
type: info:eu-repo/semantics/publishedVersion
type: Peer-reviewed Article

Corrective Justice and Redress Under Australia's Racial Vilification Laws
description: This article examines the process for seeking redress under Australia’s racial vilification laws. Recently, the debate concerning pt IIA of the Racial Discrimination Act 1975 (Cth) has focused on unmeritorious complaints and the importance of quickly terminating such complaints. This article argues that pt IIA establishes a civil wrong and that corrective justice provides an appropriate framework for understanding the process by which complainants may seek redress for this wrong. However, the remedial process currently fails to provide corrective justice in two ways. First, conciliation is compulsory and this unduly restricts complainants from commencing proceedings. This is inconsistent with the public character of vilification, which indicates that public vindication may be more appropriate than private settlement. Second, current costs rules may deter complainants from seeking vindication of their rights. Therefore, these rules should be modified in proceedings for racial vilification.
creator: Swainne, Bill
source: The University of Queensland Law Journal; Vol. 40 No. 1 (2021): The University of Queensland Law Journal; 27-65
source: 1839-289X
source: 0083-4041
source: 10.38127/uqlj.v40i1
publisher: The University of Queensland School of Law
date: 2021-03-26
rights: Copyright (c) 2021 The University of Queensland Law Journal
format: application/pdf
language: eng
type: info:eu-repo/semantics/article
type: info:eu-repo/semantics/publishedVersion
type: Peer-reviewed Article

'Part of the Future' : Family Law, Children's Interests and Remote Proceedings in Australia during COVID-19
description: In 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.
creator: Bell, Felicity
source: The University of Queensland Law Journal; Vol. 40 No. 1 (2021): The University of Queensland Law Journal; 1-26
source: 1839-289X
source: 0083-4041
source: 10.38127/uqlj.v40i1
publisher: The University of Queensland School of Law
date: 2021-03-26
rights: Copyright (c) 2021 The University of Queensland Law Journal
format: application/pdf
language: eng
type: info:eu-repo/semantics/article
type: info:eu-repo/semantics/publishedVersion
type: Peer-reviewed Article

A Uniform Hermeneutic Thesis: Objectivity and the High Court of Australia’s Approach to Interpretation Across Private Law
description: 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’.
creator: Tiverios, Nicholas
source: The University of Queensland Law Journal; Vol. 40 No. 2 (2021): The University of Queensland Law Journal; 181-214
source: 1839-289X
source: 0083-4041
publisher: The University of Queensland School of Law
date: 2021-06-29
rights: Copyright (c) 2021 The University of Queensland Law Journal
format: application/pdf
language: eng
type: info:eu-repo/semantics/article
type: info:eu-repo/semantics/publishedVersion
type: Peer-reviewed Article

Examining the Criminal Regime in Chapter 7 of the Corporations Act 2001
description: 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.
creator: Speirs, Stephen
source: The University of Queensland Law Journal; Vol. 40 No. 2 (2021): The University of Queensland Law Journal; 258-299
source: 1839-289X
source: 0083-4041
publisher: The University of Queensland School of Law
date: 2021-06-29
rights: Copyright (c) 2021 The University of Queensland Law Journal
format: application/pdf
language: eng
type: info:eu-repo/semantics/article
type: info:eu-repo/semantics/publishedVersion
type: Peer-reviewed Article

The Fate of Class Action Common Fund Orders: The Policy, Procedural and Constitutional Issues of a Legislative Revival
subject: class actions
subject: common funds
subject: litigation funding
subject: civil procedure
subject: constitutional law
description: 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.
creator: Waye, Vicki
creator: Duffy, Michael
source: The University of Queensland Law Journal; Vol. 40 No. 2 (2021): The University of Queensland Law Journal; 215-255
source: 1839-289X
source: 0083-4041
publisher: The University of Queensland School of Law
date: 2021-06-29
rights: Copyright (c) 2021 The University of Queensland Law Journal
format: application/pdf
language: eng
type: info:eu-repo/semantics/article
type: info:eu-repo/semantics/publishedVersion
type: Peer-reviewed Article