Australian Law Research Articles

The Recent Australian Debate About Individual Liability for the Criminal Misconduct of Corporations

When should a director or manager of a company be personally liable because their company has committed a criminal offence? The question is both important and controversial because many of the laws that impose this type of liability (called deemed liability provisions) do so without the need to prove that the director or manager was personally at fault. The question has received much attention recently in Australia because of proposals by the Australian Law Reform Commission to significantly expand the circumstances when this type of liability would be imposed on directors and managers. Following much criticism, the Commission withdrew its proposals and instead called for a wide-ranging review of the effectiveness of individual accountability mechanisms for corporate misconduct – in effect calling for another inquiry. This article outlines the Commission’s proposals and their objectives. It describes the criticisms that were made of the proposals and considers the proposals in the context of prior reviews and principles applying to deemed liability provisions. It is argued that the Commission was right to withdraw its proposals as they did not reflect a proper balancing of the advantages and disadvantages of deemed liability provisions, the proposals were not well drafted, and the formulation of the proposals did not appropriately consider earlier research and inquiries on deemed liability provisions.

Gilt Dragons, porcelain and plundered doubloons: A comparative analysis of Taiwan and Australian underwater cultural heritage protection laws

Taiwan and Australia are non-Parties to the UNESCO Convention on the Protection of the Underwater Cultural Heritage (UCH Convention). However, as the first two non-Parties in the East Asia region, both have incorporated the spirit and letter of the UCH Convention into their respective domestic laws, with minor exceptions to fit into their respective historical and cultural contexts, as well as their administrative and judicial settings. This paper traces and compares the very different origins of these two pieces of UCH specific domestic legislation. A comparative analysis is also made of the structure and content, similarities and differences of each piece of legislation as well as deviations between them and between the UCH Convention. The paper argues that the Taiwanese and Australian experience demonstrates models for the successful incorporation of the UCH Convention for States striving for the preservation, protection and management of UCH.

Managing Nascent Digital Competition: An Assessment of Australian Merger Law under Conditions of Radical Uncertainty

The Australian Competition and Consumer Commission is among several national competition regulators that have recently expressed concerns about the inability of existing merger law to address competition issues that arise from acquisitions of digital start-ups. The unique characteristics of rapidly evolving digital markets present unprecedented challenges for traditional merger regimes that rely on predictions of future market conditions to justify intervention. This article argues that Australian merger law is unable to adequately address the uncertain risks presented by acquisitions of nascent competitors in digital markets. It further argues that traditional rule-based merger regimes are unable to properly navigate conditions of extreme uncertainty. An alternative regulatory model that is explored in detail is experimentalist governance, which promises to allow regulators and firms to respond to radical uncertainty by recursively crafting solutions to problems that emerge in dynamic digital markets over time.

Disinformation, Deepfakes and Democracies: The Need for Legislative Reform

Rapid technological advancement is changing the way that political parties, voters, and media platforms engage with each other. This along with cultural change has led to an emerging era of disinformation and misinformation driven by both domestic and foreign actors. Political deepfakes, videos created through the use of artificial intelligence, allow individuals to rapidly create fake videos indistinguishable from true content. These videos have the capacity to undermine voter trust and could alter electoral outcomes. Regulating disinformation however raises significant free speech concerns, as well as questions about where liability should fall. In particular, holding large technology and media platforms accountable for content could lead to unintended chilling effects around freedom of expression, harming rather than protecting democratic institutions. Proposed regulations should therefore be carefully analysed through the framework of the implied freedom of political communication, ensuring that any new laws are proportionate and tailored to the threat they seek to prevent. This article analyses how current Australian law interacts with political deepfakes and proposes two targeted amendments to our federal electoral regulations to reduce the threat they pose to elections.

Understanding, promoting and supporting LGBTQI+ diversity in legal education

ABSTRACT Australian law schools are becoming increasingly diverse. Yet, there is very little quantitative or qualitative data on diversity in law schools and even less research examining how students’ diverse backgrounds and social identities – including their sexual orientation and gender identity – affect their law student experience. This article begins to fill this gap in the literature by reporting the findings from a study examining the law school experiences of LGBTQI+ students at all law schools within a single Australian state. The study reveals that much of the law school experience is similar for both LGBTQI+ and non-LGBTQI+ students, and that LGBTQI+ law students generally perceive law school to be an accepting and equitable environment. However, compared to their non-LGBTQI+ peers, LGBTQI+ law students self-censor more often, witness more bullying and harassment, and feel more stress when interacting with academic staff. Based on the findings from the study, the article suggests strategies law schools might consider to support LGBTQI+ diversity, visibly promote acceptance of “otherness” in tangible ways, and ensure a safe learning environment in which all students can flourish.

A national-scale dataset for threats impacting Australia's imperiled flora and fauna.

Australia is in the midst of an extinction crisis, having already lost 10% of terrestrial mammal fauna since European settlement and with hundreds of other species at high risk of extinction. The decline of the nation's biota is a result of an array of threatening processes; however, a comprehensive taxon‐specific understanding of threats and their relative impacts remains undocumented nationally. Using expert consultation, we compile the first complete, validated, and consistent taxon‐specific threat and impact dataset for all nationally listed threatened taxa in Australia. We confined our analysis to 1,795 terrestrial and aquatic taxa listed as threatened (Vulnerable, Endangered, or Critically Endangered) under Australian Commonwealth law. We engaged taxonomic experts to generate taxon‐specific threat and threat impact information to consistently apply the IUCN Threat Classification Scheme and Threat Impact Scoring System, as well as eight broad‐level threats and 51 subcategory threats, for all 1,795 threatened terrestrial and aquatic threatened taxa. This compilation produced 4,877 unique taxon–threat–impact combinations with the most frequently listed threats being Habitat loss, fragmentation, and degradation (n = 1,210 taxa), and Invasive species and disease (n = 966 taxa). Yet when only high‐impact threats or medium‐impact threats are considered, Invasive species and disease become the most prevalent threats. This dataset provides critical information for conservation action planning, national legislation and policy, and prioritizing investments in threatened species management and recovery.

Exploring Risk, Antecedents and Human Costs of Living with a Retained Surgical Item: A Narrative Synthesis of Australian Case Law 1981-2018.

Objective(s)This study aimed to critically examine the circumstances contributing to, and the human costs arising from, the retention of surgical items through the lens of Australian case law.Design, Setting and ParticipantsWe reviewed Australian cases from 1981 to 2018 to establish a pattern of antecedents and identify long-term patient impacts (human costs) of retained surgical items. We used a modified four-step process to conduct a systematic review of legal doctrine, combined with a narrative synthesis approach to bring the information together for understanding. We searched LexisNexis, AustLII, Coroner Court websites, Australian Health Practitioner Regulation Agency Tribunal Decisions and Panel Hearings, Civil and Administrative Tribunal summaries, and other online sources for publicly available civil cases, medical disciplinary cases, coronial cases, and criminal cases across all Australian jurisdictions.ResultsTen cases met the inclusion criteria, including one coronial case, three civil appeal cases, and six civil first instance cases. Time from item retention to discovery ranged from 12 days to 20 years, with surgical sponges the most frequently retained item. Five case reports indicated possible deviations from standard protocols regarding counting procedures and record-keeping. In the four cases that reported on count status, the count was deemed correct at the end of surgery. Case reports also showed the human costs of retained surgical items, that is, the long-term impacts on patients associated with a retained surgical item. In eight of the nine civil cases, ongoing pain was the most frequently reported physical symptom; in three cases, patients suffered psychosocial symptoms requiring treatment.ConclusionWhile there was little uniformity in the items retained or how items came to be retained, we identified significant time delays between item retention and item discovery, coupled with long-lasting physical and psychosocial harms suffered by patients living with a retained surgical item. Current prevention strategies, including national standards-based professional practices, are not always effective in preventing retained surgical items. An internationally standardised taxonomy and reporting criteria, more consistent reporting, and open access to event and risk data could inform a more accurate global estimate of risk and incidence of this hospital-acquired complication.

The Evolution of Sino-Australian Relations in 2013-2018

In the early days of Xi Jinping's rule, Sino-Australian cooperation was successful and benefiting both sides. Establishing a “strategic partnership” and the conclusion of a free trade agreement made it possible to deepen the relationship. In addition to developing economic relations, states actively collaborated on the social and cultural levels. China's growing power has brought new challenges. The increase in spending on armaments and the modernization of the army contributed to the increased military presence of the PRC in the region and the exacerbation of disputes in the South China Sea and the East China Sea, raising tensions in the region. The growing influence of the People's Republic of China in Australia has caused concern for the government, which has started to limit it. Beijing has been critical of Australian law to reduce foreign interference. The purpose of this study is to analyze the Sino-Australian relations in 2013-2018.

Rights of Nature Versus Conventional Nature Conservation: International Lessons from Australia’s Tarkine Wilderness

The rights-of-nature model is gaining traction as an innovative legal approach for nature conservation. Although adopted in several countries, it remains in its infancy, including in Australia. An important research question is whether rights of nature will offer superior environmental outcomes compared to traditional nature conservation techniques including creation of protected areas. This article investigates that question through a case study of the Tarkine wilderness, in the Australia state of Tasmania. It first identifies key lessons from existing international experience with affirmation of rights of nature, such as in New Zealand and Ecuador. The article then explores how rights of nature could apply in Australia’s Tarkine region and their value compared to existing or potential protected areas and other nature conservation measures under Australian or Tasmanian law. Affirming rights of nature represents a major conceptual shift in how people via the law relate to the natural world, but whether the model offers practical benefits for nature conservation depends on a variety of conditions, in addition to the need to address broader societal drivers of environmentaldegradation.

COVID-19 as a National Security Issue in Malaysia: A Comparison with the Italian and Australian Perspectives

COVID-19 pandemic affects variations of countries’ national strategies, policies, and plans of actions while at the same time these arrangements afflicting their residents by implementing a variety of health and legal measures to flatten the COVID-19 curve. This stretches from prohibiting overseas travel, forbidding interstate travel, encouraging work from home closings of some public areas, compulsory wearing of marks and hand sanitisers, quarantine, social distancing, and a mixture of various actions. Malaysia in implementing its laws and regulations on COVID-19 is empowered mainly by the Prevention and Control of Infectious Diseases Act 1988 (Act 342) together with its newly imposed COVID-19 regulations and the old Police Act 1967 (Act 344). The movement control order coupled with the social distancing measures has appeared to be the effective actions in flattening the COVID-19 curve. The study attempts to map COVID-19 as a national security matter for the benefit of public health and national security concurrently within the scope and limits of Malaysia’s public health measures and prevention of diseases, in the protection of security and public order. This paper then proposed for COVID-19 and other future health crises or pandemics as national security issues. This in turn legitimising the health, security, or emergency measures, either developing on the existing laws or moving towards a more practical form of law in line with future unforeseeable threat and intervention. The Australian and Italian laws relating to COVID-19 are analysed to provide better insight and suggest solutions enabling countries facing a future emergency or crisis issues.
 
 Received: 4 March 2021 / Accepted: 6 May 2021 / Published: 8 July 2021

The role of the Valuer-General in the calculation of compensation for expropriation: A comparative analysis between South African and Australian law

Property valuations have always played an important role in the calculation of compensation for expropriation. The shift from market-based compensation towards just and equitable compensation prescribed by s 25 of the South African Constitution poses important questions as to the role of a valuation in calculating compensation for property expropriated for land reform purposes. The Property Valuation Act of 2014 established the Valuer-General to determine the value of these properties according to the formula reserved for the determination of just and equitable compensation, leading to contestation regarding its role in determining compensation. Recent case law clarified that the valuation does not prevent the Minister from paying compensation that differs from the value determined by the Valuer-General nor does it bind the courts when called on to determine compensation under s 42 D of the Restitution Act. The role of the Valuer-General remains unclear when expropriation proceedings are initiated by the state. This article analyses the function of statutory valuation bodies in Australian law to determine compensation for compulsory acquisition as persuasive authority to further guide the interpretation of the Property Valuation Act.

The standard of liability in claims for misuse of private information

ABSTRACT This article attempts to identify a standard of liability for use in claims for misuse of private information (MPI). It highlights current uncertainty over this issue following the decision of the Supreme Court in Lloyd v Google LLC. It considers whether the comments of Lord Leggatt in Lloyd are compatible with those made in earlier MPI decisions and argues that the standard applicable remains an open question. In formulating a proposed standard, the article considers issues arising under the Human Rights Act 1998 and is informed by the recommendations of the Australian Law Reform Commission in its review of Australian privacy law. It is suggested that the appropriate standard for the MPI tort ought to be one of ‘quasi-strict’ liability, meaning that liability could, in certain cases, be strict. Whether a defendant would be found to be strictly liable should be determined through the reasonable expectation of privacy test.

Rebuilding worker power in Australia through multi-employer bargaining

ABSTRACT The Australian Council of Trade Union’s Change the Rules campaign from 2017 to 2019 demanded enterprise bargaining be redesigned to fit the modern world of work. Unions argued collective bargaining should not be limited to the outdated framework of the ‘enterprise’. Workers should be able to bargain with the host business in labour hire; with franchisors; with lead businesses in supply chains; and across industries. In this article, we undertake a preliminary analysis of the key issues for consideration in designing multi-employer bargaining in the Australian context. We review the United Workers Union’s experience in whole-of-supply-chain bargaining through its Fresh Food Campaign, and draw upon recent proposals for multi-employer bargaining from the UK Institute of Employment Rights, and the Harvard ‘Clean Slate’ Project in the USA. We examine the shape of worker bargaining units for purposes of multi-employer bargaining; employee support thresholds; the permitted scope of bargaining; and the legal effect of multi-employer agreements. While its precise shape requires much further consideration, the case for implementing this change in Australian labour law is even stronger in the wake of the COVID-19 pandemic: not only to boost workers’ economic power, but to ensure they have control over the safety of their work.

Compensation for the Cost of a Surrogacy Arrangement in Personal Injury Cases

A woman who has been rendered infertile by a defendant’s wrong may wish to obtain damages for the cost of becoming a parent through a surrogacy arrangement. Such a claim, which has yet to be brought before an Australian court, would raise two partially overlapping issues under Australian law. First, the claim must satisfy the general requirement that a person who has suffered personal injury can only recover expenses that are necessary and reasonable. Secondly, the laws of the Australian jurisdictions except the Northern Territory regulate surrogacy arrangements and criminalise commercial surrogacy arrangements (where the surrogate mother is promised a fee in addition to the reimbursement of expenses). This regulation may impact upon the recoverability of the cost of a surrogacy arrangement through the concepts of coherence of the law and public policy. The most complex scenario, but also the most likely to arise in Australian personal injury litigation, is that of a plaintiff who lives in Australia and wishes to enter into a commercial surrogacy arrangement in a foreign country in which this is lawful. This article investigates the legal issues that may arise if a claim for the cost of a surrogacy arrangement is brought before an Australian court.

Medico-legal considerations of mandatory COVID-19 vaccination for high risk workers.

Medico-legal considerations of mandatory COVID-19 vaccination for high risk workers.

The Reception of Structured Proportionality in Australian Constitutional Law

A majority of the High Court has incorporated a test of structured proportionality into its implied freedom of political communication case law. Structured proportionality developed in the context of constitutional rights adjudication and requires courts to engage in substantive, values-based reasoning. The Australian Constitution does not contain a Bill of Rights and the High Court is known for its commitment to legalism and textualism. Against this background, one might think that the High Court would interpret the elements of structured proportionality so that they assume a highly distinctive form in Australian constitutional law. However, a close reading of recent implied freedom of political communication case law demonstrates that generally this is not the case. Admittedly, the High Court’s approach to the necessity and balancing stages departs from the case law of the Federal German Constitutional Court. However, once a broader comparative perspective is adopted, it becomes apparent that the High Court’s approach is not unusual, especially for courts that are new to applying structured proportionality. By adopting structured proportionality, the High Court may have aligned the implied freedom of political communication with a global model of constitutional rights enforcement. The Australian constitutional context may also be less distinctive than is sometimes supposed.

Trade Mark Law's Identity Crisis (Part 2)

The concept of ‘substantial identity’ has not been the subject of sustained critical inquiry in Australian trade mark law, notwithstanding that it plays a crucial role in relation to trade mark ownership, non-use, amendments to representations, and the criminal offences. This second part of a two-part article provides a critique of the Federal Court’s recent move away from a strict approach to, and embrace of an expansive test of, substantial identity. It is argued that the Court’s new interpretation is inconsistent with earlier authority and pays insufficient regard to the historical and normative underpinnings of the provisions of the Trade Marks Act 1995 (Cth) in which substantial identity has vital work to do. It has the potential to destabilise core doctrines of Australian law and unjustifiably privilege the interests of particular parties in the trade marks system. The article concludes with options for reorienting Australia’s law of substantial identity.

A Common Law Tort of Interference with Privacy for Australia: Reaffirming ABC v Lenah Game Meats

When the High Court decided Australian Broadcasting Corporation v Lenah Meats Pty Ltd (‘Lenah’) in 2001, it left the door open for a common law tort of interference with privacy. However, privacy claims brought since Lenah have seen courts interpret that judgment restrictively, some holding that tortious remedies are unavailable. The importance of the High Court’s decision for the development of privacy protection through tort law should, therefore, be reaffirmed. In addition to the confirmation in Lenah that a tort of interference with privacy is recognisable in Australian common law, there are good reasons why the courts should now recognise this tort. There is a sufficiently strong normative demand that the common law intervene to protect individual privacy, and tort law is the most appropriate mechanism. When courts are presented with privacy cases reflecting that normative demand and fitting within tort law’s remedial capacity, they should recognise and apply a tort of interference with privacy.

The Tort of Collateral Abuse of Process

The tort of collateral abuse of process has an enigmatic place in Australian tort law. Although Australian courts regularly debate and question the elements of this tort, as most recently demonstrated by the decision of the New South Wales Court of Appeal in Burton v Office of the Director of Public Prosecutions (2019) 100 NSWLR 734, its exact formulation has been perpetually in dispute. Courts are given little assistance when they turn to Australian scholarship, as the tort has been the subject of limited academic scrutiny. In pursuit of greater clarity, this article offers a scholarly exploration of the contested tort of collateral abuse of process. The authors propose that it is only by accepting that the tort exists to compensate the wronged individual, punish and deter the tortfeasor, and maintain the integrity of the judicial process, that its precise elements can be properly assessed and coherently formulated.

Intestacy Laws and the Influences of Colonialism – The Case of Kenya, in Comparison with the English and Australian Laws of Succession

Intestacy law is derived from the traditional values, but it can be also under the influences of societies across the world. As a field of private law, the law of intestate succession can, in the long run, resist the non-voluntary, i.e., imposed reception of such rules of and forced by a coloniser. Compared to the flexible regulations, e.g., of the law of obligations, which are therefore more capable of legal transplant, intestate succession is based on deeply enrooted customs of a nation. Thus, these rules can rigidly persist under the pressure of colonisation. Kenya and Australia, two countries with significant differences in their cultural and legal traditions, were, in a diverse way, colonised by England. The article analyses the intestacy laws in these three countries, with the emphasis on Kenya. It especially discusses the reasons for pushing for strong intestacy laws to protect the widow in Kenyan Laws compared with the Australian and English Laws.