Queensland Law Research Articles

End-of-life decision-making in the emergency department and intensive care unit: Health professionals' perspectives on and knowledge of the law in Queensland.

To investigate ED and intensive care unit healthcare professionals' perspectives and knowledge of the law that underpins end-of-life decision-making in Queensland, Australia. An online survey with questions about perspectives, perceived, and actual, knowledge of the law was distributed by the professional organisations of medical practitioners, nurses and social workers who work in Queensland EDs and intensive care units. The survey responses of 126 healthcare professionals were included in the final analysis. Most respondents agreed that the law was relevant to end-of-life decision-making, but that clinician and family consensus mattered more than following the law. Generally, doctors' legal knowledge was higher than nurses'; however, there were significant gaps in the knowledge of all respondents about the operation of advance health directives in Queensland. The legal framework that supports end-of-life decision-making for adults who lack decision-making capacity has been in place for more than two decades. Despite frequently being involved in making or enacting these decisions, gaps in the legal knowledge of healthcare professionals who work in EDs and intensive care units in Queensland are evident. Further research to better understand how to improve knowledge and application of the law is warranted.

Introduction to the Special Issue

Introduction to the Special Issue of the University of Queensland Law Journal celebrating the 20th anniversary of the Centre for Public, International and Comparative Law ('CPICL').

Foreword to Special Issue

Foreword to Special Issue of the University of Queensland Law Journal celebrating the 20th anniversary of the Centre for Public, International and Comparative Law ('CPICL').

Reformist Tinkering, The Queensland Law of Murder and Other Disasters

Two Victorians, long-term advocates of abolishing the provocation defence, discuss the ramifications of reformist tinkering with the law of murder that stops short of abolition. They register their despair at legislatures that hold fast to the so-called ‘heat of passion’ defence with reference to law reform and cases in Queensland and New South Wales. What, they ask, will it take for these two jurisdictions to enter the twenty- first century and follow all the other Australian states in abolishing a defence well past its use-by date?

Reforming non-consensual sexual offences in Hong Kong: How do the Law Reform Commission of Hong Kong's proposals compare with recent recommendations in other jurisdictions?

In this article, we consider the reforms to non-consensual sexual offences that the Law Reform Commission of Hong Kong (‘LRCHK’) has recently advocated in its Final Report about the law relating to sexual offending in that jurisdiction. We argue that a comparison between the LRCHK's proposals and those supported in recent years by Law Reform Commissions in other jurisdictions – most particularly, in New South Wales (‘NSW’) and Queensland – reveals the LRCHK's recommendations generally to be sensible, balanced and progressive. The LRCHK's approach to the question of what it is to consent, and to the issue of how a person withdraws consent, is preferable to that supported by the NSW Law Reform Commission (‘NSWLRC’). Further, it seems right to have supported an objective culpability requirement for the non-consensual offences with which it was concerned. And while there are difficulties concerning certain of the LRCHK's proposals – especially, perhaps, those pertaining to fraudulently procured sexual activity – the NSWLRC's and the Queensland Law Reform Commission's respective approaches to the last mentioned topic also seem imperfect.

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.

Dousing threats and the criminal law in Queensland: Do we need a new offence?

This article examines dousing threats as criminal conduct and a form of domestic and family violence. It points to recent cases of dousing and highlights concerns that the low penalties of applicable offences in Queensland may not reflect the gravity of the harm caused nor the culpability of offenders. The article analyses the current legal framework and argues that a new dousing offence in Queensland would fill a gap in the criminal law, more accurately label such offending and may also contribute to improved police responses to dousing threats.

Progressive Punitiveness in Queensland

Jonathan Crowe and Bri Lee have recently argued that the mistake of fact excuse, for which s 24 of the Criminal Code Act 1913 (Qld) provides, should be rendered inapplicable to rape and sexual assault proceedings in that State. In this article, I argue that this proposal is objectionable because, however progressive its promoters consider it to be, it is incompatible with human rights – and would probably breach the Human Rights Act 2019 (Qld). Moreover, the Queensland Law Reform Commission and the Queensland Parliament should reject an alternative proposal of Crowe and Lee’s, which seems to be aimed at achieving indirectly what their primary proposal would achieve directly. Even if Crowe and Lee’s research demonstrated that mistake of fact is causing injustice for rape and sexual assault complainants – and it does not – absolute liability for serious crime is indefensible.

Reproductive justice: A framework for abortion law reform

Australia has seen a number of efforts at reform of abortion laws in recent years. Some jurisdictions have decriminalised abortion entirely, and other states have made efforts to reform abortion law without complete decriminalisation. At the other end of the spectrum, Queensland in 2018 listed abortion as a criminal offence. This article uses the framework of questions in the Queensland Law Reform Commission consultation paper to reprise the need for abortion law reform in Queensland specifically, and Australia generally. While answering the Queensland Law Reform Commission questions, we frame our inquiry around empowering women’s self-determination to make decisions about their reproductive health as a hallmark of their equality as citizens.

Planning – A Risky Business?

Since the introduction of performance-based planning, Queensland's planning law framework has been repeatedly amended in response to complaints of complexity. This article traces Queensland's law reform journey and focuses on the issue of complexity in the context of planning schemes. The causes of complexity are diverse and to some extent remain unresolved. An issue that warrants more attention is the concept of "risk" in the context of planning (and particularly planning schemes). Risk-based approaches to regulation have been increasingly regarded as an effective way to manage risk and uncertainty. This article asks questions about risk concepts in planning and argues in favour of further research around a risk-based approach to planning scheme preparation.

Are We There Yet? Proposed Reforms to Planning Law in Queensland

Are We There Yet? Proposed Reforms to Planning Law in Queensland

Trial by Motive

This article examines the implications of the High Court ruling in The Queen v Baden-Clay(‘Baden-Clay’)1 for future murder accused with strong motives for killing their spouses who deny all knowledge of their deaths. The article argues that apart from underlining the risk run by any criminal accused who opts to remain silent at their trial, the reasoning of the Court has left open the possibility that a conviction of murder could become a ‘default’ verdict under Queensland law in the absence of clear evidence of manslaughter, once the act of homicide has been proved. It has also provided a ‘pro-Crown’ precedent for future cases in which a conviction may be obtained by means of items of purely circumstantial evidence, not all of which are established beyond reasonable doubt.

Time to repeal outdated abortion laws in New South Wales and Queensland.

This article suggests that recent developments regarding abortion law in NSW and Queensland carry significant implications for doctors.

The Use of Journal Articles by the Queensland Law Reform Commission

This article reports on a study into how the Queensland Law Reform Commission (‘QLRC’) cites journalarticles. It found that journal articles had a limited presence within QLRC reports, suggesting that QLRC doesnot engage significantly with academic literature in its approach to law reform. This raises issues both for lawreform and the Australian legal academy. For law reform there is the issue of whether the QLRC shouldengage more deeply with material from journal articles. For the Australian legal academy there is the issue ofwhether it should be researching and writing about matters of importance to reforming Australian law.

Political Finance Law in Queensland

Democratic politics needs resources, including money. But money tends to corrode democratic politics. These two truths are in tension; regulation is needed to reduce that tension. Besides the reality that parties need resources, small scale private donations are a form of political association. Larger pools of money can also be a way for ideological or other interest groups to practically exercise freedom of expression.

‘Only a pawn in their game’: crime, risk and politics in the case of Robert Fardon

In 2003 Robert Fardon was the first prisoner to be detained under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), the first of the new generation preventive detention laws enacted in Australia and directed at keeping sex offenders in prison or under supervision beyond the expiry of their sentences where a court decides, on the basis of psychiatric assessments, that unconditional release would create an unacceptable risk to the community. A careful examination of Fardon’s case shows the extent to which the administration of the regime was from the outset governed by politics and political calculation rather than the logic of risk management and community protection. In 2003 Robert Fardon was the first person detained under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (hereafter DPSOA), a newly enacted Queensland law aimed at the preventive detention of sex offenders. It was the first of a new generation of such laws introduced in Australia, now also in force in NSW, Western Australia and Victoria. The laws have been widely criticized by lawyers, academics and others (Keyzer and McSherry 2009; Edgely 2007). In this article I want to focus on the details of how the Queensland law was administered in Fardon’s case, he being perhaps the most well-known prisoner detained under such laws and certainly the longest held. It will show, I hope, that seemingly abstract rule of law principles invoked by other critics are not simply abstract: they afford a crucial practical safeguard against the corruption of criminal justice in which the ends both of community protection and of justice give way to opportunistic exploitation of ‘the mythic resonance of crime and punishment for electoral purposes’ (Scheingold 1998: 888).

Tasmania Law Reform Institute: Inquiry into Non-therapeutic Circumcision of Male Minors

Circumcision of minors, unless necessary to cure an injury, deformity or disease that cannot be treated in any other way, is already (technically) illegal under both the common law and numerous specific provisions of Tasmanian laws covering assault, injury, wounding, mistreatment etc. Since social custom (as the Queensland Law Reform Commission observed in 1993) tolerates and to some extent approves of the practice, however, we do not see prosecutions being launched, and there have been very few civil suits for damages. That being the case it is difficult to imagine that the government would ever contemplate legislation even half as strong as the sections of the criminal code prohibiting female genital mutilation, or at least not until circumcision of males is generally regarded with a similar degree of revulsion. It follows that the most promising way to protect boys from unnecessary and unwanted surgery is by tighter regulation of circumcision, public education and legal reform. These would take the form of (1) much stricter regulation of the procedure by the medical professional and regulatory bodies, backed up by specific legislation if necessary; (2) public education to counteract the scaremongering of alarmist circumcision promoters and opportunistic medical practitioners; and (3) making it easier (by reforms to legislation covering limitations and torts) for aggrieved men who feel harmed by circumcision in infancy or childhood to sue those responsible.

Making it legal: Abortion providers' knowledge and use of abortion law in New South Wales and Queensland

To explore the knowledge of state abortion law of doctors providing abortion in New South Wales and Queensland, their attitudes towards this law, and their application of both knowledge and attitudes to their day-to-day practice of abortion. Qualitative study using interviews of twenty-two medical practitioners agreeing to participate and identified as providing surgical and/or medical abortions in NSW or Queensland. Specific questions about practice as well as responses to ten common clinical scenarios formed the basis of each interview. Familiarity of participants with abortion law of their state, documentation of views on legality and probable availability of abortion in each scenario provided. All participants were aware that abortion in their state is covered by criminal legislation, which they believe is out-of-date with current medical practice, in particular with regard to the diagnosis of serious fetal abnormality, and that there is limited case law to assist doctors in a defence to a charge of abortion. All were concerned about requirements to conform to state law when agreeing to provide abortion services to women, and about the possible constraints of these requirements on women's accessibility to abortion services. Review and reform of abortion laws in Queensland and NSW, as has occurred in other states and territories, has the potential to bring the law into conformity with current medical practice and to clarify the legal position of doctors providing abortion services, thereby providing an opportunity to improve women's accessibility to these services.

The Homosexual Advance Defence and the Campaign to Abolish it in Queensland: The Activist’s Dilemma and the Politician’s Paradox

Two recent murder trials in Queensland served as reminders that the 'homosexual advance defence' is still being employed in courtrooms as a species of provocation, resulting in verdicts of manslaughter instead of murder. The cases sparked a campaign for the abolition of the defence from Queensland law and very nearly succeeded. After setting out what the 'homosexual advance defence' is and how efforts to eradicate it have fared elsewhere in Australia, this article seeks to give a full account of the campaign in order to elucidate lessons for future law reform efforts as well as for queer theory.

A defence of the requirement to seek consent to withhold and withdraw futile treatments

Futility assessments, which are unavoidable in end-of-life settings, need to be procedurally fair. This necessitates communication between health professionals and substitute decisionmakers regarding the decision to define treatments as futile. The common law test for whether treatment should be withheld or withdrawn is the best interests test. A futile treatment is not in any patient's best interests. While it is rare for the law to disagree with a futility determination made by health professionals, if a determination has been made without consultation and fails to reflect the patient's best interests, the courts will overturn it. The best regulatory regimes provide for a balance between the powers of health professionals and substitute decisionmakers to make decisions for incompetent patients, and for clear and efficient dispute resolution. The Queensland law and its requirement for consent to withhold or withdraw futile treatment represents a good model of futility determination, with clear powers given to substitute decisionmakers and health professionals. Disputes concerning the treatment of incompetent patients automatically trigger the appointment of the adult guardian as the decisionmaker, and there are avenues for appeal.