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Our publications contribute to the ongoing development of law and public policy and to the life of the Australian community. As such, the Law Publications page ensures that scholars, judges, legislators, lawyers, and students can readily locate the cutting-edge research of the University of Adelaide Law School.
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Item Metadata only Managing leaky bodies at work and study : Improving the provision of sanitary infrastructure in male-designated toilets at higher education institutions(QUT Centre for Justice, 2023) Grant-Smith, D.; Hewitt, A.; Maelorian, L.Although period poverty remains an ongoing concern, from an infrastructural perspective the provision of disposal facilities for menstrual products in countries like Australia has been largely addressed for those identifying as female. By contrast, there remains a significant provision gap for trans and nonbinary people who menstruate. This briefing paper considers the impact of a lack of sanitation infrastructure for all people who menstruate and male staff and students with faecal or urinary incontinence or chronic bowel and bladder issues within higher education institutions. One of the practical problems both groups face in relation to using campus-based male-designated toileting facilities is a lack of sanitary infrastructure to support the discrete and hygienic disposal of continence and menstrual products and packaging. In a university context, this lack of access to sanitation infrastructure can negatively impact the ability of staff and students to fully engage in on-campus learning, teaching and social activities. This briefing paper explores the regulatory and justice arguments in support of providing additional sanitary disposal infrastructure in male-designated toilet stalls on the basis that failing to do so is not only inequitable as it may limit these individuals from fully participating in life on campus but may also potentially constitute prohibited discrimination.Item Metadata only Torrens and trusts: Weight of policy versus protecting the beneficiary(LexisNexis Australia, 2023) Babie, P.Torrens title represents a policy decision favoring certainty of legal title over the remedial flexibility, and so somewhat less certain status, of equitable title. Confusion about this policy often arises in calls for ‘noting of trusts on title’ so as to allow the ‘true owner’ to be ascertained. This article considers whether sufficient protection currently exists within Torrens systems for equitable interests—especially the express trust of a fee simple—through exceptions to indefeasibility, caveats, or other means of notation. Part II recounts the nature of equity as it affects real property law generally. Part III examines the policy of Torrens with respect to equitable interests. Part IV considers the arguments that might be advanced on both sides of the debate over the place of trusts within Torrens systems. Part V concludes: while there are sound reasons for possible reform through allowing for the notation of trusts in the Register, that change would not come without cost, legal, pragmatic, and material.Item Metadata only Temporary Migrant Labour and Unpaid Work in Australia(Sydney Law School, 2018) Howe, J.; Stewart, A.J.; Owens, R.Increasing attention is being given to the exploitation of temporary migrant workers in Australia, especially in relation to wage underpayments and ‘cashback scams’ where visa holders are coerced into returning a portion of their wage to their employer. However, very little focus has been given to the incidence of unpaid work performed by temporary migrants. This article examines how previous forms of regulation affecting visas for working holiday makers and international students actively encouraged the performance of unpaid work by allowing unpaid work to count towards either permanent residency or an extension of a visa holder’s temporary stay. The article also assesses the current regulation of temporary migrant workers and the likelihood that it creates incentives for this cohort to perform unpaid work. We argue that this likelihood largely stems from the employer-driven nature of Australia’s temporary and permanent migration program, and the ability for visa holders to achieve a favourable migration outcome through the performance of paid work, for which unpaid work is often a gateway.Item Metadata only Are work experience participants protected against sex discrimination or sexual harassment?(SAGE Publications, 2021) Hewitt, A.; Owens, R.; Stewart, A.; Howe, J.More and more young Australians are undertaking periods of work experience as a part of their study or independently to facilitate their transition into employment. They are often subject to a significant power disparity compared to others in the workplace, and need the placement to finish a course, and/or to get practical experience, connections and industry references. This makes them vulnerable, including to sexual harassment and sex discrimination. However, whether prohibitions of such conduct apply to them is a complex question, which this article explores.Item Open Access The Regulation of Medical Device Representatives: A Question of Trust?(Queensland University of Technology, 2022) Richards, B.; Sage Jacobson, S.; Lotz, M.; Rogers, W.The introduction of new technologies in medical treatment has led to innovation in medical devices that are highly technical in their application and operation. The medical technology landscape is changeable and healthcare providers often turn to the medical device representatives (MDRs), employed by device manufacturers to help navigate the shifts and uncertainties. While the relationship between MDRs and healthcare providers can be a positive one focusing on appropriate use, selection and safety of devices, it is one that has evolved over time and is not independently regulated. In addition, patients, for the most part, are usually unaware of the involvement of MDRs in their healthcare. It is this knowledge gap with regard to the role of MDRs that is the focus of this paper. We argue that trust is at the heart of healthcare relationships and explore the nature of trust alongside the models of regulation of the medical device industry. We argue that MDRs may currently present a threat to both the interpersonal and the institutional trust of patients, and that regulation and policy responses are appropriate ways to address this risk. We consider potential regulatory frameworks and identify transparency and communication as the crucial characteristics of an appropriate response. We recommend that the polycentric nature of Australian healthcare regulation be cultivated through a multilayered approach, and that a positive obligation to inform the patient of the role of MDRs in their clinical care be established.Item Open Access The Role of Ocean-based Negative Emission Technologies for Climate Mitigation(FRONTIERS MEDIA SA, 2021) Keller, D.P.; Brent, K.; Bach, L.T.; Rickels, W.Item Metadata only Outlaws in their Native land: the 'Incompetence' of Aboriginal Witnesses in 19th Century Colonial Australia(Routledge (Taylor & Francis), 2024) Alexander, A.; Nicholls, H.; Plater, D.; Griffiths, C.; Korporowicz, Ł.This Chapter considers the law of witness competence applying to Aboriginal witnesses in 19th century colonial Australia. After British colonisation, there was strong awareness of the rule of law and the ostensible need for equity and justice for all. Yet Aboriginal witnesses were deemed ‘incompetent’ witnesses, unable to testify as they did not believe ‘in a future state of reward and punishment’ and were ‘destitute of the knowledge of God’. The British law of witness competence was designed to ensure that only ‘reliable’ testimony was presented. However, this law was arbitrarily applied in 19th century colonial Australia and ignored Aboriginal lore and beliefs. The authors contrast this to the acceptance of the testimony of other non-Christian witnesses in this period. The authors note the efforts at reform, which belatedly allowed in the mid-1800s the ‘unsworn’ testimony of Aboriginal witnesses. Such laws proved relatively swift and uncontentious in South Australia but encountered hostility in New South Wales and did not pass until 1876. However, the effects of such laws proved limited, and the testimony of Aboriginal witnesses was still regarded as inferior to ‘sworn’ evidence. The law of competence to Aboriginal witnesses raises continuing implications (a topic of both personal and professional application).Item Open Access The Thing and Judicial Methodology in Resolving Novel Property Claims: It Matters When It Matters(Alberta Law Review Society, 2023) Babie, P.This article explores, in a very preliminary way, two issues that emerge when Bruce Ziff’sidentification of two judicial methodologies in resolving novel property claims is coupledwith the two currently dominant theories of property. First, that there is an intuitivecorrespondence, or correlation, between judicial approach and theory of property producestwo correlatives — the attributes-property as things correlative, and the functional-propertyas relations correlative. And, second, in neither of the two correlatives is the thing orsubject-matter of property merely a dispensable backdrop to the inquiry; rather, for both,the thing remains absolutely essential to understanding what property is and concluding thatit exists in any given case. But less certainty exists as to when a court must take account ofthe thing in the context of a discrete novel property claim. Perhaps the most that can beclaimed is that it matters when it matters.Item Metadata only COVID-19 in the Apex Courts of India and Australia: Judicial Roles and Constitutional Cultures(Thomson Reuters, 2022) Neudorf, L.; Tomer, A.; Arora, V.; Aston, J.Item Metadata only The Wages Crisis: Revisited(Centre for Future Work, The Australia Institute, 2022) Stewart, A.; Stanford, J.; Hardy, T.; Centre for Future Work, The Australia InstituteItem Restricted Of Crocodiles and Cryptocurrency, Or, Property is a Relationship between Persons in Respect of Things, and Why It Matters(The Faculty of Law, University of Oxford, 2023) Babie, P.In those cases where courts are asked to decide whether property exists in a novel set of circumstances or in respect of novel assets, the question arises whether property is a relationship between persons and things or between persons in respect of things. Cryptocurrency offers a topical example of this ‘property question.’ In answering it, many courts the world over seem to follow—either explicitly or implicitly, a statement found in the High Court of Australia’s decision in Yanner v Eaton, a case involving whether wild crocodiles could be property for the purposes of a native title claim. The High Court said that ‘‘property’ is a comprehensive term [which] can be used to describe all or any of very many different kinds of relationship between a person and a subject matter.” But can that be so? Here I want to explain why it cannot, and why it matters.Item Restricted The Spread and Origins of the German Proportionality Doctrine(Nomos/Facultas, 2023) Taylor, G.; Hilpold, P.; Perathoner, C.The three-part proportionality test (suitable, necessary and adequacy in balance) developed by Germany’s Federal Constitutional Court has conquered the world. But almost nothing is known of its origins. This essay proposes, on the basis of several items of circumstantial evidence, that Gerhard Leibholz (1901–1982), Judge of the Court from 1951 to 1971 and professor of law, may have had the leading role in its development. His early writings from the mid-1920s strikingly presage the development of the test; it suited his broader judicial agenda; he was a Judge when it was developed, even if on the “wrong” side of the Court; and it was developed in an area of law in which he was the acknowledged expert.Item Open Access "Please Watch this Ad ... Or Else": Could Advertisements Requiring User Focus or Response be "Coercive" under the Australian Consumer Law?(Thomson Reuters, 2023) Giancaspro, M.From posters in shop windows and on light posts to pop-ups and banner ads on computers and smartphones, advertising has evolved dramatically over the past century. In recent times, emergent technologies have seen advertising take another quantum leap forward. Some major corporations are now employing what this article terms ‘compulsive advertising technologies’ (‘CATs’) to market to consumers. CATs require consumers to actively engage with the advertisement shown in order to terminate. Some ads track eye movements, read facial profiles, and even demand verbal responses to cues. This article is the first to consider whether the use of CATs could amount to ‘coercive’ conduct, proscribed by s 50 of the Australian Consumer Law (‘ACL’), by using compulsion to negate the consumer’s choice or freedom to act in circumstances that are unreasonable or unjustifiable. Through a doctrinal analysis, it is argued that existing case law interpreting ACL s 50 supports this view. The article concludes by suggesting amendment to the consumer law to provide clarity as to the sorts of non-physical conduct that can amount to coercion.Item Open Access The Resource Implications of Work Integrated Learning and Legal Clinics in Australian Legal System: Managing Workload, System Support and Recognition(Northumbria University Library, 2023) Hewitt, A.; Skead, N.Work integrated learning (WIL) has been embraced as a valuable pedagogy by many Australian law schools, which offer students the opportunity to engage in a variety of WIL including clinical legal education, placements in law firms and industry projects. However, there is widespread recognition that WIL pedagogies have unique resourcing requirements in terms of workload and infrastructure. In addition, there is evidence that academic contribution to WIL pedagogies is not positively regarded in the context of academic advancement. This article explores the resources required to deliver legal WIL and presents novel data about how this is being accommodated by Australian law schools. This analysis informs the development of specific recommendations for Australian law schools on the resourcing of legal WIL.Item Metadata only Pretty, Pricy, Perilous? Demystifying Non-Fungible Tokens and Highlighting Some Key Legal Concerns(Thomson Reuters, 2023) Giancaspro, M.There is currently a great deal of hype surrounding non-fungible tokens (NFT), fuelled largely by several high-profile and high-priced purchases. NFTs, which harness blockchain technology and represent digitally tokenised versions of assets, are largely misunderstood by regulators, lawyers, and even their users. Although they tend to have aesthetic and sentimental appeal, NFTs are also something of a legal anomaly. This article seeks to explain, in comprehensible terms, what NFTs are, and to highlight some of the key concerns that arise from their use across a variety of legal fields including contract, consumer, corporate, taxation and intellectual property law. It is ultimately concluded that users should, for the reasons provided, exercise great caution when entering the NFT market.Item Metadata only It’s time we stopped exploiting interns and paid them for the hours worked(The Conversation, 2023) Hewitt, A.Item Metadata only Parliamentary Sovereignty and Popular Sovereignty in the UK Constitution(Cambridge University Press (CUP), 2022) Goldsworthy, J.Rivka Weill claims that in the nineteenth century the foundation of the UK constitution changed from parliamentary sovereignty to popular sovereignty, originally as a matter of constitutional convention but today as a matter of law. I argue, to the contrary, that parliamentary sovereignty as a legal principle and popular sovereignty as a political principle are perfectly compatible. Constitutional conventions are essentially political not legal requirements. Therefore, a constitutional convention requiring popular approval of constitutional change, if it ever existed, would not have violated parliamentary sovereignty. But if it did exist, it was displaced by the Parliament Act 1911 and has not been revived since. Moreover, there is no evidence that courts today have legal authority to enforce any requirement, conventional or legal, requiring such approval.Item Metadata only The "Manner and Form" Theory of Parliamentary Sovereignty(Sweet and Maxwell, 2021) Goldsworthy, J.Michael Gordon has defended the popular “manner and form” theory of parliamentary sovereignty, claiming that it provides the best explanation of recent constitutional developmentsin the UK and is normatively superiorto rival theories. I argue that the manner and form theory is inconsistent with parliamentary sovereignty. I accept that parliamentary sovereignty is consistent with mandatory requirements for legislating that are purely procedural or formal, in that they do not diminish Parliament’s substantive power to change the content of the law however and whenever it chooses. But it is not consistent with some procedural requirements that Gordon and others include within the category of “manner and form”. The clearest example is a self-entrenched referendum requirement, forbidding Parliament from amending or repealing a particular law without the explicit approval of a majority of electors. By diminishing Parliament’ssubstantive power to change the law, this would plainly be inconsistent with comprehensive, continuing parliamentary sovereignty. It does not follow that self-entrenched referendum requirements are undesirable. But if one were enacted and accepted as binding by senior legal officials, including the courts, the UK Constitution would have fundamentally changed from one based on comprehensive parliamentary sovereignty to one based on legislative sovereignty being occasionally shared by Parliament and the electorate. I also argue that requirements for super-majorities within the Houses of Parliament should be regarded as inconsistent with parliamentary sovereignty. As for explaining recent constitutional developments in the UK, my theory of “pure procedure or form” is equal to the task, as well as superior in other respects both theoretical and practical. The article includes discussion of the desirability of the courts determining whether or not requirements governing procedure or form are legally binding, and of the legal consequences of their non-entrenchment.Item Metadata only Is Parliamentary Sovereignty Alive, Dying or Dead?(Sweet and Maxwell, 2023) Goldsworthy, J.The Supreme Court in the Miller cases confirmed without dissent that the doctrine of parliamentary sovereignty remains a fundamental element of the UK Constitution. This suggests that the doctrine is still alive, but various critics maintain that it is either dying or already dead. This article responds to three of them: Professor Nick Barber, and Professors MartinLoughlin and StevenTierney. Barber claims that parliamentary sovereignty was killed by the European Communities Act 1972 (UK) as applied by the courts. But the decision inFactortame is best explained by a manner and form theory of parliamentary sovereignty. Parliament’s legislative sovereignty was in effect subjected to a requirement of form, not substance: it could at any time override the Act, totally or partially, provided that it used express words.The decision not only preserved but enhanced parliamentary sovereignty, by recognising that Parliament hasthe powerto protect its standing commitments even from its own inadvertent transgressions. The frequent judicial refusal to enforce ouster clauses, on which Barber also relies, presents a greater challenge to parliamentary sovereignty. Most senior judges have so far stopped short of denying outright that Parliament has authority to enact such clauses. I recommend that Parliament should act prudently and not provoke them to cross that line. Loughlin and Tierney argue that because Parliament’s political authority hasrecently declined, the doctrine of parliamentary sovereignty must now be qualified, although most constitutional lawyers cannot comprehend this reality because they are befuddled by the doctrine. I show that the lawyers’ alleged confusions are non-existent, that it is Loughlin and Tierney who are confused, and that while Parliament’s legislative sovereignty depends in one sense on its political authority, the dependence is sufficiently loose that no qualification is yet needed.Item Open Access Legislative Intentions in Antonin Scalia’s and Bryan Garner’s Textualism(Connecticut Law Review Association, 2021) Goldsworthy, J.In Reading Law, the late Justice Antonin Scalia and his co-author Bryan Garner defend “pure textualism,” partly because they deny that legislatures can have any intentions other than to enact statutory texts. This denial would, if adhered to rigorously, make their version of textualism unviable. It is inconsistent with context and purpose being used to (a) dispel ambiguities, (b) correct scrivener’s errors, (c) reveal presumptions or background assumptions that qualify literal textual meanings, (d) reveal most kinds of implicit and implied content, and (e) resolve conflicts between the interpretive canons. It would, in other words, entail hyperliteralism, which Scalia and Garner explicitly reject. This is no doubt why, as I show, they do not rigorously adhere to that denial. To the contrary, in accepting that context and purpose can be used to do all these things, they frequently rely on legislatures having intentions in addition to merely enacting statutory texts. Notwithstanding their theoretical dismissal of substantive legislative intentions as non-existent, their actual interpretive practice confirms the intentionalist thesis that sensible interpretation of enacted laws necessarily presupposes the existence of such intentions, and endeavors to reveal and clarify them.