Australian Law Research Articles

Creative confidence and thinking skills for lawyers: Making sense of design thinking pedagogy in legal education

Law schools globally are increasingly recognising the importance of integrating design thinking into their curricula to equip graduates with essential human-centred skills and mindsets for the future of work. Studies in recent years have investigated design thinking pedagogy in higher education, but there is a need for further empirical research to understand educator and learner perspectives in law schools. We conducted in-depth, semi structured interviews with design thinking educators from an Australian law school to investigate their experience and sense-making of design thinking pedagogy as a specific application case. While our research findings are not generalisable, this study allowed us to reach tentative conclusions about how design thinking might be used to approach skills teaching in law. Our participants sensed design thinking pedagogy as developing empathic, creative, and innovative thinking skills as an alternative to the traditional institutionalised way of producing lawyers. They also sensed it as enabling human centred problem solving, developing creative confidence, and enabling alternative mindsets. We propose that law students must cultivate a different way of thinking to prepare for the future of the legal profession. Integrating design thinking pedagogy into law curricula has the potential to prepare graduate lawyers to respond to complex legal problems with fewer constraints, to develop emotional intelligence, to build resilience, to tackle a fear of failure, and to better collaborate in multidisciplinary contexts. For these reasons, we propose all law schools consider including design thinking pedagogy, or relevant components, within their legal education curricula.

From clinical to judicial decision-making, and back again in Bell v. Tavistock? Preparing for the legacy of court involvement in gender care for minors

Gender care for minors in England has recently been scrutinised by the courts and is currently undergoing significant transformation, shifting away from the long-standing centralised service provision model. Alongside this change, the World Professional Association for Transgender Health has recently published Version 8 of its Standard of Care, which introduces radical changes that shift away from age restrictions on medical interventions. This article considers what role judicial decision-making could, or should, play in this new era of healthcare provision for adolescent gender care, especially since Bell v. Tavistock. Despite Bell seemingly returning decision-making to clinicians, patients, and their families, we argue that the decision has left the door open in a way that threatens the autonomy and rights of gender diverse children. Through a comparative analysis with Australian case law, we demonstrate how and why uncertainties left by Bell may in fact lead to continued court involvement. Finally, we suggest several pragmatic responses that may mitigate the risk of unnecessary and time-consuming court involvement.

Privacy Implications of Contacting the At-Risk Relatives of Patients with Medically Actionable Genetic Predisposition, with Patient Consent: A Hypothetical Australian Case Study.

Genetic risk information has relevance for patients' blood relatives. However, cascade testing uptake in at-risk families is <50%. International research supports direct notification of at-risk relatives by health professionals (HPs), with patient consent. However, HPs express concerns about the privacy implications of this practice. Our privacy analysis, grounded in a clinically relevant hypothetical scenario, considers the types of personal information involved in direct notification of at-risk relatives and the application of Australian privacy regulations. It finds that collecting relatives' contact details, and using those details (with patient consent) to notify relatives of possible genetic risk, does not breach Australian privacy law, providing that HPs adhere to regulatory requirements. It finds the purported "right to know" does not prevent disclosure of genetic information to at-risk relatives. Finally, the analysis confirms that the discretion available to HPs does not equate to a positive duty to warn at-risk relatives. Thus, direct notification of a patient's at-risk relatives regarding medically actionable genetic information, with patient consent, is not a breach of Australian privacy regulations, providing it is conducted in accordance with the applicable principles set out. Clinical services should consider offering this service to patients where appropriate. National guidelines would assist with the clarification of the discretion for HPs.

Indigenous Australia and the pre-legal society in HLA Hart’s The Concept of Law

The continuing existence and operation of the traditional law of Aboriginal and Torres Strait Islander peoples has – relatively recently – been explicitly acknowledged in Australian law. In emerging case law on the subject, the High Court of Australia has confirmed the common law recognition of the survival of Indigenous Australian law. However, in determining what it is that is recognized by the common law – in interpreting Indigenous Australian ‘traditional laws and customs’ – the High Court has disregarded the knowledge reposed in those with authority or expertise in Indigenous Australian law, relying instead upon concepts and assumptions from the jurisprudence of English legal philosopher, HLA Hart. The influence of Hart’s theory in the Australian High Court’s interpretation of Indigenous Australian ‘traditional laws and customs’ is problematic, because it contains an obvious pre-legal–legal dualism reminiscent of the ‘state of nature’ – ‘civil society’ mechanism that was instrumental in the application of terra nullius to Australia. At the heart of The Concept of Law lies the notion of progression from a ‘primitive community’ with only primary rules, to an advanced legal system with a combination of both primary and secondary rules. In this article, I investigate how Indigenous Australians are positioned in relation to Hart’s pre-legal–legal dualism. I examine the ‘primitive’, pre-legal society in The Concept of Law, and its counterpart, the advanced legal system, to analyze the position of Indigenous Australian societies and law in Hart’s scheme. Finally, I analyze the construction of the dualism and consider its impact on the High Court’s interpretation of Indigenous Australian ‘traditional laws and customs’.

Comparative Analysis of Indonesia’s Minimum Capital Requirements for Foreign Direct Investment

This research seeks to examine the compatibility of the Indonesian minimum capital requirement for foreign direct investment companies (FDI) with the national treatment obligation under international investment agreements (IIAs). The requirement is compared with investment requirements under Australian and Austrian Law. This research combines the normative legal research method with law and economics by conducting cost and benefit analysis (CBA). The national treatment protects foreign investors from less favorable treatment against domestic investors. The minimum capital requirement is contrary to national treatment because it is only applicable to FDI companies. However, not every IIA involving Indonesia provide a national treatment clause. To determine violation, the two-tier test must be conducted by analyzing the scope of the obligation and applicable exception. Some IIAs provide exceptions where a state can give different treatment to foreign investors for the sake of public interest. Indonesia justifies this requirement because it gives several benefits namely preventing foreign investors from controlling vital sectors, protecting MSMEs from unfair competition, and ensuring liquidity. Nevertheless, the benefits cannot be achieved due to weak supervision. The requirement can be easily circumvented through nominee agreements. Based on CBA, the requirement creates more harm than good. It is promiscuously applied to all business fields and is more burdensome compared to investment requirements in Australia and Austria. The solution proposed is either improving supervision or adjusting the requirement to be more consistent with the national treatment. The government can also protect national interests by empowering MSMEs and using more relevant criteria.

Are employer-dismissed older workers adequately compensated? Comparison of Australian and UK age discrimination and dismissal cases

This paper focuses on the legal remedies for age discrimination and dismissal of older workers, identifying the factors that courts and tribunals in Australia and the United Kingdom (UK) consider when calculating compensation for two forms of damages: injury to feelings and future losses. A secondary aim is to determine whether these factors adequately consider the unique workforce participation challenges faced by older workers in both countries. Considering the similarities between Australian and UK age discrimination law and given that the latter jurisdiction has had considerably more successful cases than the former, this study adopts a comparative approach and draws on UK cases to inform the development of Australian age discrimination law. Analysis of all successful Australian and a selection of successful UK age discrimination and dismissal cases spanning from 2017 to 2020 suggests that Australian law might be strengthened by: adopting a scale of awards similar to the guidelines established in Vento v Chief Constable of West Yorkshire Police [2002] EWCA Civ 1871 (‘ Vento’) for recognising and awarding injury to feelings; and by more readily awarding future losses, particularly for claimants who plan to work or who are already working past retirement age.

Environmental considerations around in-situ decommissioning of oil and gas pipeline infrastructure in marine environments

The base case for decommissioning of oil and gas infrastructure under Australian laws and regulations is the full removal. However, alternative options may be considered, provided equal or better environmental, safety and well-integrity outcomes compared to complete removal can be demonstrated. In order to evaluate in-situ retention options, the composition of materials, including any contaminants, must be fully understood, along with degradation timeframes and exposure pathways to the marine environment. In this paper, we articulate measurable parameters for the evaluation of pipeline materials including their composition chemistry, material degradation products and their properties, environmental toxicity, and potential interaction of infrastructure components with seawater and ecological receptors. In the absence of measured data from the degradation of pipeline materials over time, theoretical modelling is an essential tool to evaluate the transportation, distribution, and fate of materials such as plastic particles from pipeline coatings. Most of the components present in oil and gas pipelines, when degraded, are either soluble in water or if insoluble, accumulate locally in the sediment. However, the accumulated components will be rapidly dissipated by the wave currents around the pipeline and physical movements within the sediments, which will prevent the chemicals from accumulating to concentrations that could cause toxicity.

Criminal responsibility of older children: The failings of doli incapax in Australia

AbstractCriminal law balances community protection from children who commit criminal offences against supporting children to behave appropriately. Existing Australian law applies the rebuttable presumption of doli incapax to children from 10 years of age and then applies full criminal responsibility to children from 14 years of age. Imposing full criminal responsibility on older children is problematic because it does not account for their cognitive development, social and environmental risk factors and maturity. Extending doli incapax to older children is one response to address the challenges of older children's criminal culpability but it does not go far enough to protect children from the harms of the criminal justice system.

Hard Exterior, Soft Interior: Skill Regulation and Employer Control over Migrant Worker Selection Policy in Australia

Abstract This paper utilises a regulatory analysis of skilled visas and insights from labour law scholarship to examine how Australian immigration law regulates ‘skill’ and the implications for migrant workers’ employment relationships. While qualifications or ‘hard skills’ act as the formal basis for selection under Australian immigration law, interpersonal attributes associated with ‘soft skills’ often decide who employers recruit. Immigration regulations that allow employers discretion to recruit based on soft skills widen scope for employer misuse and migrant worker exploitation, including for those on high-skilled visas, and for diversity bias against women and ethnic minorities. Our major theoretical contribution is to highlight how immigration laws that give employers discretion over the criteria used in skilled immigration selection intensify power imbalances within the contract of employment. The regulatory definitions of skill constructed by immigration law can thus serve as an additional lever of employer control. The findings indicate that precise regulation of skill is necessary to limit the potential for employers to exert undue control over migrants in worker selection processes.

Greenhouse Gas Removal in Australian Climate Law: A Positive Role for Negative Emissions

Greenhouse Gas Removal in Australian Climate Law: A Positive Role for Negative Emissions

Religion as a Motive – Does Australian Terrorism Law Serve Justice?

This article will examine whether the category of religiously motivated terrorism serves justice in Australia, first considering its lawfulness from a human rights perspective and, secondly, examining its operation in the courtroom. Judicial comment in two cases, the subject of national media attention and complaints to the (New South Wales) NSW Judicial Commission, were used as a basis. This article finds that efforts to establish a ‘religious cause’ were stifled by complexity and ambiguity about the difference between Islamic adherence and violent extremism. Bias-prone assumptions had observable implications for the judicial assessment of the defendant’s culpability and rehabilitation prospects. Moreover, judicial reasoning seemed to overlook evidence of an intent to coerce the government or intimidate the public, treating religious beliefs and motives as a vehicle to establish intent. The article concludes that judicial education could help. Still, those measures would not fix the core of the problem. By removing the motive element, the issues would be avoided while focusing attention on the remaining intention elements. An alternative option is to remove ‘religious cause’ so that terrorism cases must demonstrate ‘ideological or political cause’, encouraging more precise and comparable reasoning across offending contexts.

The Organizing Principles of Aboriginal Justice

The various procedures that constitute the repertoire of traditional Australian Aboriginal justice can be organized, on the formal level, around three characters, that is: symmetry, mode of designation and moderation. All three criteria correspond to social dimensions. Asymmetry expresses guilt, while symmetry expresses a situation where it has not been acknowledged. The mode of designation reflects both the individual or collective nature of the accused party and the willingness, if necessary, to circumscribe the effects of the legal proceedings. Moderation, finally, highlights a general principle of Australian law, that of modulation: according to it, the theoretically strict compensation for damages (“an eye for an eye, a tooth for a tooth”) is either lightened – in particular, towards a moderate procedure – or, on the contrary, aggravated, depending on the social relations prevailing between both parties. This approach also makes it possible to understand how war, which in Australia is mainly, if not exclusively, of a judicial nature, derives from the feud, of which it is an unbridled modality.

Leading Gillick Astray? An Analysis of the Law of Consent Relevant to Trans and Gender Diverse Minors and the Commencement of Gender-Affirming Hormone Treatment

This article outlines and critiques the Australian jurisprudence that has addressed whether minors are able to lawfully consent to gender-affirming hormone treatment, with reference to the landmark decision of Gillick v West Norfolk and Wisbech Area Health Authority. Although the principle of Gillick competency is well recognised in law, the Australian legal developments that apply Gillick to decisions about the commencement of gender-affirming treatment, have taken the principle astray. The approach under Australian law has diverged down a path that does not align with the original reasoning in Gillick, nor its contemporary interpretation. I outline the reasoning in Gillick so that the foundational principles are considered before discussing how Gillick has been interpreted and applied in subsequent cases. I then provide an outline of the key legal developments in Australia relevant to minors and the commencement of hormone treatment for gender dysphoria. I undertake a critique of the Australian law in this field and conclude that there is a need for future judicial determination of how Gillick should be applied, not only in the cases relevant to gender dysphoria, but beyond, so that the position in respect of minors’ decision-making is clarified. This is vitally important because the current approach to this issue has potential implications beyond cases relevant to gender-affirming hormone treatment.

Perspectives on the Relationship Between Copyright and Design Law after Cofemel/G-Star – The Australian Regulation of Copyright/Design Overlap as a Role Model for European Law?

Abstract The relationship between copyright and design law has again come more into focus as a result of the Court of Justice of the European Union’s (CJEU) decision in the Cofemel/G-Star case. EU law enables dual protection of designs both through copyright and through design law. Australian copyright law tries to exclude or at least limit dual protection. This article considers the advantages and disadvantages of dual protection and outlines a suggestion for sharpening the distinction between copyright and design law.

Attacking the 'New Right', Australian Law Reviews and the Peer Review Process

In a just published issue in one of Australia’s oldest and best-known law reviews, the Federal Law Review, Dr Harry Hobbs of the University of Technology Sydney has written an article that comes out swinging (read on to see that that is, if anything, a mild description) against critics of three High Court of Australia cases. The three judgments are separated by 28 years in total, but Hobbs lumps them — or rather various critics of any one of these three decisions — together as part of a supposedly coherent and like-minded whole. I am one of those thus lumped, which is why I am taking the time to offer up this brief reply, though there are dozens of others also so categorised.

A comparative analysis of the Australian and New Zealand liquidation schemes

AbstractOn September 28, 2022, Australia announced an inquiry into the effectiveness of its corporate insolvency laws. The Australia and New Zealand corporate insolvency frameworks have similar objectives and operate in a similar context where, as is the case the world over, most companies are small to medium enterprises. Despite liquidation being just one of several collective and formal corporate insolvency procedures, it is the most frequently occurring procedure in both countries by a large margin. The Australian and New Zealand liquidation schemes have many similarities but also some key differences. Differences include the structure of the respective schemes; the levers prompting liquidation of companies in appropriate circumstances; the role of creditors, the court and the regulator; and the management of low‐value and assetless liquidations. These differences are analysed to determine what, if anything, the New Zealand scheme might contribute to development and/or reform of Australian corporate insolvency law. As consistency and coordination with Australian insolvency law is a New Zealand policy aim, the lessons the Australian scheme might have for New Zealand are also considered. Many of the points on which the Australian and New Zealand liquidation schemes differ are of universal concern (such as the management of low‐value liquidations), meaning that the nature and success (or otherwise) of the Australian and New Zealand responses are of wider, comparative interest.

Is cryptocurrency personal property under Australian law? It depends

In response to the Australian Government's recent decision to introduce and regulate cryptocurrency exchanges, guided by recent jurisprudential developments the US and other common law jurisdictions, this article examines the implications of cryptocurrency as property, and being regulated as personal property under the Personal Property Securities Act 2009 (the ‘ PPSA’) in Australia. This article holds the view that some types of cryptocurrency can be recognised as personal property and discusses the possible ways of categorising cryptocurrency under the PPSA and the manners in which security interests in cryptocurrency can be perfected. Within the existing PPSA framework, this article proposes considering some types of cryptocurrency as a specific item of intangible property and argues that some types of cryptocurrency, as one category of personal property, may be best perfected by control by the secured party and/or through an intermediary.

‘Mind-forg’d Manacles’: Virtual Experience and Innocent Publication

In Fairfax Media Publications Pty Ltd v Voller (‘Voller’) the Australian High Court held that media companies maintaining Facebook comment pages could be liable for the defamatory posts of commenters on those sites. The decision focussed entirely on whether, by maintaining the Facebook page, the companies had ‘published’ the statements of commenters. Hearings on other aspects of the tort litigation continue. This paper considers the implications of the tort of defamation on public participation on political will formation where, as is increasingly the case, the participation occurs virtually. Australian law has already tackled the law of defamation as a threat to freedom of political communication; Voller continues the jurisprudence by considering whether hosting an online forum for debate amounts to publication. The more recent High Court judgment in Google LLC v Defteros demonstrated the necessity of the law to align the ‘acts’ necessary to found legal action with the new environment of automated search engines. The troubled intersection of dematerialised practices of political and cultural discourse and jurisdictionally bound laws of defamation challenges participatory governance as tribes form and dissolve and shift between geographical interests.Defamation in Australia is a tort of strict liability; and, absenting applicable defences, any participation in communication is sufficient to make that participant a publisher and a party to the defamation. The online environment stretches words across geographical and jurisdictional boundaries, but it also stretches and contorts concepts of fault and responsibility. Participatory digital cultural practices integrating users in the creation of cultural heritage simultaneously draw participants into transgressions, both cultural and legal, which are amplified by the medium. Questions of collective guilt, ‘shades’ of moral responsibility and disproportionality between blameworthiness and legal liability challenge laws formulated for the printing press but now deployed in the online environment. In this way the digitized participatory environment presents deep challenges to law and legal systems, which are chained to geography. This paper considers the concept of innocent publication in the context of the digitized participatory environment and the way in which the virtual experience is dissolving concepts of geographically defined jurisdictions.

Domestic and Family Violence and Private Family Report Writing Practice in the Australian Family Law System: A Study

In Australia, family reports are an influential expert assessment of a family usually undertaken in contentious family law parenting matters by social workers or psychologists, known as family report writers. This article presents findings from in-depth interviews with 10 private family report writers about their experience of undertaking assessments, particularly in cases where domestic and family violence is alleged. The study reveals a number of concerns that mirror the findings of previous Australian and international research in this area. For example, concerns were raised about the quality and efficacy of training and access to other resources, professional isolation, the efficacy of the family report assessment process, and divergence in understandings of domestic and family violence. A critical issue raised in the study relates to the pro-contact and co-parenting culture of the Australian family law system, which can significantly impact the family report writing process and may have repercussions for the safety of victims of domestic and family violence and their children. Responding to and drawing from the family report writers’ lived experiences, we offer suggestions for reform that aim to improve the efficacy of the family report assessment process and therefore the justice and safety of outcomes in matters where a family report is deemed necessary.

The Practice of National Passive Principles in Illegal Fishing Disputes of Indonesian Citizens in Australian Waters

Fishing in the territorial waters of another country carried out without the permission of the country concerned is a crime called illegal fishing. Many cases of illegal fishing occur in the country's border areas, as happened in the northern waters of Australia which is the border between Indonesia and Australia. Border areas between countries are prone to fishing actions carried out without the permission of the relevant country. Traditional Indonesian fishermen arrested by Australian government authorities for illegal fishing are then tried under Australian law. But basically the Indonesian Government has the authority to ask the Traditional Fishermen to be tried under the applicable law in Indonesia. Such actions are referred to as passive national principles, which are among the principles recognized by international law. In the application of this principle is also based on the agreement established between the two countries, in this case the extradition treaty. The research method used by the author is a quantitative research method that produces descriptive results with an analytical descriptive literature study approach sourced from previous research and books.