Pub Date : 2024-07-14DOI: 10.38127/uqlj.v43i2.8311
Serena Hildenbrand
The recent Royal Commission into Robodebt drew Australians’ attention to the risks of data technologies in the public sector. Novel data technologies, including artificial intelligence, offer potential public benefits but create risks to individuals and society. I argue that existing Australian data protection laws offer inadequate protection against the dangers posed by the use of such technologies in the public sector. Pending more tailored legislative change, I consider the extent to which specific human rights laws such as those in Queensland, Victoria and the Australian Capital Territory, together with effective application of risk assessment methodologies within a human rights culture, could be layered over data protection laws to provide ongoing technologically-neutral protection against such harms.
{"title":"Robodebt and Novel Data Technologies in the Public Sector","authors":"Serena Hildenbrand","doi":"10.38127/uqlj.v43i2.8311","DOIUrl":"https://doi.org/10.38127/uqlj.v43i2.8311","url":null,"abstract":"The recent Royal Commission into Robodebt drew Australians’ attention to the risks of data technologies in the public sector. Novel data technologies, including artificial intelligence, offer potential public benefits but create risks to individuals and society. I argue that existing Australian data protection laws offer inadequate protection against the dangers posed by the use of such technologies in the public sector. Pending more tailored legislative change, I consider the extent to which specific human rights laws such as those in Queensland, Victoria and the Australian Capital Territory, together with effective application of risk assessment methodologies within a human rights culture, could be layered over data protection laws to provide ongoing technologically-neutral protection against such harms.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":"31 7","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-07-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141650465","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-07-11DOI: 10.38127/uqlj.v43i2.8377
Chris Dent
Workplace deaths occur as a result of decisions made by a range of parties — employers, employees and the victim. These decisions can be seen to form the basis of regulatory efforts. This research proposes a categorisation of the decisions in terms of their timeframes — long-term, short-term and emergency — as well as non-decisions. The decisions will be explored through the use of decision-making theory, an engagement with the ‘agency-systems’ dichotomy, the conflict between the underlying policies of safety, efficiency and devolved decision-making, as well the concept of ‘resilience engineering’. By way of contrast, there will be reference to the regulation of iatrogenic deaths to further probe the value of the approach. The outcome is a call for a focus on the regulation of decisions, and a step away from the traditional focus on fatalities as outcomes.
{"title":"Regulating Decisions that Lead to Loss of Life in Workplaces","authors":"Chris Dent","doi":"10.38127/uqlj.v43i2.8377","DOIUrl":"https://doi.org/10.38127/uqlj.v43i2.8377","url":null,"abstract":"Workplace deaths occur as a result of decisions made by a range of parties — employers, employees and the victim. These decisions can be seen to form the basis of regulatory efforts. This research proposes a categorisation of the decisions in terms of their timeframes — long-term, short-term and emergency — as well as non-decisions. The decisions will be explored through the use of decision-making theory, an engagement with the ‘agency-systems’ dichotomy, the conflict between the underlying policies of safety, efficiency and devolved decision-making, as well the concept of ‘resilience engineering’. By way of contrast, there will be reference to the regulation of iatrogenic deaths to further probe the value of the approach. The outcome is a call for a focus on the regulation of decisions, and a step away from the traditional focus on fatalities as outcomes.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":"118 43","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-07-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141656926","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-07-11DOI: 10.38127/uqlj.v43i2.8293
Sirko Harder
Section 23 of the Australian Consumer Law, which is sch 2 of the Competition and Consumer Act 2010 (Cth), invalidates unfair terms in particular types of contract. Section 5(1) of the Act extends the application of the Australian Consumer Law to conduct outside Australia by (among others) corporations carrying on business within Australia. In Carnival plc v Karpik (‘Ruby Princess’), the High Court of Australia held that s 5(1) applies to the unfair contract terms provisions without any further territorial limitation. The Court applied the provisions to a contract made in North America between a Canadian resident and a foreign company which was carrying on business in Australia through other transactions. This article investigates the territorial scope of the unfair contract terms provisions.
{"title":"The Territorial Scope of Australia’s Unfair Contract Terms Provisions","authors":"Sirko Harder","doi":"10.38127/uqlj.v43i2.8293","DOIUrl":"https://doi.org/10.38127/uqlj.v43i2.8293","url":null,"abstract":"Section 23 of the Australian Consumer Law, which is sch 2 of the Competition and Consumer Act 2010 (Cth), invalidates unfair terms in particular types of contract. Section 5(1) of the Act extends the application of the Australian Consumer Law to conduct outside Australia by (among others) corporations carrying on business within Australia. In Carnival plc v Karpik (‘Ruby Princess’), the High Court of Australia held that s 5(1) applies to the unfair contract terms provisions without any further territorial limitation. The Court applied the provisions to a contract made in North America between a Canadian resident and a foreign company which was carrying on business in Australia through other transactions. This article investigates the territorial scope of the unfair contract terms provisions.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":"143 15","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-07-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141655959","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-04-11DOI: 10.38127/uqlj.v43i1.8113
Lucinda O’Brien, Ian Ramsay, Paul Ali
In Australia, pawnbrokers are largely exempt from national consumer credit legislation. They are instead governed by state legislation, which affords very limited protection to consumers. This study outlines the current regulation of pawn lending and presents a qualitative profile of consumers who use pawn loans. In the absence of reliable industry data, it draws on case law, media reports, law reform submissions, previous qualitative studies and an online survey of consumers, conducted by the authors. The study argues that the light regulation of pawn lending creates a high risk of consumer harm and regulatory arbitrage by unscrupulous providers. It proposes law reforms and policy measures to address these risks and to provide more effective protection to consumers.
{"title":"Lending on the Edge","authors":"Lucinda O’Brien, Ian Ramsay, Paul Ali","doi":"10.38127/uqlj.v43i1.8113","DOIUrl":"https://doi.org/10.38127/uqlj.v43i1.8113","url":null,"abstract":"In Australia, pawnbrokers are largely exempt from national consumer credit legislation. They are instead governed by state legislation, which affords very limited protection to consumers. This study outlines the current regulation of pawn lending and presents a qualitative profile of consumers who use pawn loans. In the absence of reliable industry data, it draws on case law, media reports, law reform submissions, previous qualitative studies and an online survey of consumers, conducted by the authors. The study argues that the light regulation of pawn lending creates a high risk of consumer harm and regulatory arbitrage by unscrupulous providers. It proposes law reforms and policy measures to address these risks and to provide more effective protection to consumers. ","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":"15 2","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-04-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140713202","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-04-03DOI: 10.38127/uqlj.v43i1.8123
Alice Taylor
The passage of the Human Rights Act 2019 (Qld) (‘HRA 2019’) was a significant achievement, particularly in a state often known for its parochial conservatism and disinterest in, if not outright rejection of, human rights. The HRA 2019 is substantially based upon the human rights Acts in place in Victoria and the Australian Capital Territory. However, there are some small, but potentially important differences between the HRA 2019 and the corresponding state and territory equivalents. In this article, I focus on one of these differences: the definition of discrimination contained in the HRA 2019. Unlike the Charter of Human Rights and Responsibilities Act 2006 (Vic) the definition of discrimination in the HRA 2019 is not tied to the definition or grounds of discrimination in the state discrimination legislation. This small but important distinction could feasibly allow courts to define discrimination and the broader notion of equality in a more substantive manner, covering a wider variety of actions and conduct, and apply that wider definition to a broader range of attributes (commonly understood as ‘grounds’). The purpose of this article is to consider the possibilities and potential challenges confronting Queensland courts in broadening the definition of discrimination in the context of HRA 2019. I argue that, though a substantive interpretation of discrimination and equality is challenging and requires a degree of ‘creativity’ on the part of judges, it is a challenge worth undertaking.
{"title":"Substantive Equality and the Possibilities of the Queensland Human Rights Act 2019","authors":"Alice Taylor","doi":"10.38127/uqlj.v43i1.8123","DOIUrl":"https://doi.org/10.38127/uqlj.v43i1.8123","url":null,"abstract":"The passage of the Human Rights Act 2019 (Qld) (‘HRA 2019’) was a significant achievement, particularly in a state often known for its parochial conservatism and disinterest in, if not outright rejection of, human rights. The HRA 2019 is substantially based upon the human rights Acts in place in Victoria and the Australian Capital Territory. However, there are some small, but potentially important differences between the HRA 2019 and the corresponding state and territory equivalents. In this article, I focus on one of these differences: the definition of discrimination contained in the HRA 2019. Unlike the Charter of Human Rights and Responsibilities Act 2006 (Vic) the definition of discrimination in the HRA 2019 is not tied to the definition or grounds of discrimination in the state discrimination legislation. This small but important distinction could feasibly allow courts to define discrimination and the broader notion of equality in a more substantive manner, covering a wider variety of actions and conduct, and apply that wider definition to a broader range of attributes (commonly understood as ‘grounds’). The purpose of this article is to consider the possibilities and potential challenges confronting Queensland courts in broadening the definition of discrimination in the context of HRA 2019. I argue that, though a substantive interpretation of discrimination and equality is challenging and requires a degree of ‘creativity’ on the part of judges, it is a challenge worth undertaking.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":"35 4","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-04-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140747052","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-03-13DOI: 10.38127/uqlj.v43i1.7979
Emily Hammond
Garlett v Western Australia [2022] 96 ALJR 888 (‘Garlett’) was a missed opportunity for the High Court of Australia to confirm a simple proposition: the scheme for the exercise of separated judicial power laid down in Ch III of the Constitution precludes any non-criminal punishment by courts. In Garlett, all but one Justice rejected or doubted that Ch III has this effect. This article identifies and resolves two points of contention that have impeded recognition that Ch III categorically precludes non-criminal punishment by courts. In doing so, it demonstrates that Ch III’s exclusive vesting of separated judicial power in courts supports a more ‘joined up’ way of thinking about permissible court functions across the Australian federation than was seen in Garlett.
{"title":"The Impossibility of Non-Criminal Punishment by Courts in the Australian Federation","authors":"Emily Hammond","doi":"10.38127/uqlj.v43i1.7979","DOIUrl":"https://doi.org/10.38127/uqlj.v43i1.7979","url":null,"abstract":"Garlett v Western Australia [2022] 96 ALJR 888 (‘Garlett’) was a missed opportunity for the High Court of Australia to confirm a simple proposition: the scheme for the exercise of separated judicial power laid down in Ch III of the Constitution precludes any non-criminal punishment by courts. In Garlett, all but one Justice rejected or doubted that Ch III has this effect. This article identifies and resolves two points of contention that have impeded recognition that Ch III categorically precludes non-criminal punishment by courts. In doing so, it demonstrates that Ch III’s exclusive vesting of separated judicial power in courts supports a more ‘joined up’ way of thinking about permissible court functions across the Australian federation than was seen in Garlett.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":"608 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-03-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140246618","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-12-17DOI: 10.38127/uqlj.v42i3.8675
Constance Lee
This article aims to draw out some of the key continuities between Confucian and Reformed natural law traditions, the latter represented by John Calvin (1509–64). It seeks to undermine contemporary academic definitions of Confucianism and constitutionalism, which are premised on misinterpretations. The first misinterpretation occurs where Confucian moral theory is viewed overly prescriptively, as being synonymous with legalist orthodoxy. The second misinterpretation occurs where constitutionalism is defined exclusively in terms of its dominant liberal conception. These problematic definitions of the two core concepts reduce the space of convergence between Eastern and Western constitutional frameworks, giving rise to the misleading narrative that they are fundamentally incompatible. With these issues in mind, the article adopts a dialectic interpretive method to read both traditions in light of their historical context and authorial purpose, to see whether such a reading can support some form of duty-based constitutionalism. Ultimately, the article examines Eastern and Western natural law ideas to reveal deeper themes common to both and highlight the normative continuities of two prominent, albeit culturally disparate, constitutional foundations.
{"title":"The Duties that Bind Us","authors":"Constance Lee","doi":"10.38127/uqlj.v42i3.8675","DOIUrl":"https://doi.org/10.38127/uqlj.v42i3.8675","url":null,"abstract":"This article aims to draw out some of the key continuities between Confucian and Reformed natural law traditions, the latter represented by John Calvin (1509–64). It seeks to undermine contemporary academic definitions of Confucianism and constitutionalism, which are premised on misinterpretations. The first misinterpretation occurs where Confucian moral theory is viewed overly prescriptively, as being synonymous with legalist orthodoxy. The second misinterpretation occurs where constitutionalism is defined exclusively in terms of its dominant liberal conception. These problematic definitions of the two core concepts reduce the space of convergence between Eastern and Western constitutional frameworks, giving rise to the misleading narrative that they are fundamentally incompatible. With these issues in mind, the article adopts a dialectic interpretive method to read both traditions in light of their historical context and authorial purpose, to see whether such a reading can support some form of duty-based constitutionalism. Ultimately, the article examines Eastern and Western natural law ideas to reveal deeper themes common to both and highlight the normative continuities of two prominent, albeit culturally disparate, constitutional foundations.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":"18 6","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-12-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138965836","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-11-29DOI: 10.38127/uqlj.v42i3.8551
Simon Miller
Japan faces its most serious and complex defence environment since the end of World War II. The country holds two significant security concerns: first, and critically, China’s burgeoning military, increasingly aggressive diplomacy, and destabilising actions around the Senkaku Islands in the East China Sea; second, North Korea’s continued unpredictable rhetoric and actions in its nuclear arming program and ballistic missile testing. Japan’s 2022 National Security Strategy proposes two unprecedented policy ideas to counter these threats: first, to significantly increase Japan’s defence budget; second, to acquire counterstrike long-range missile capabilities in response to an attack. Nonetheless, despite these security issues and policy developments, this article argues that formal amendment of the peace clause in art 9 of the Japanese Constitution remains unlikely. To understand the improbability of constitutional amendment, this article first explores Japan’s constitutional pacifism under the post-World War II Yoshida Doctrine and the US–Japan cornerstone security alliance, as well as the context of North Korea’s nuclear and ballistic missile threat and the emotive issue of abductions of Japanese citizens. The article then turns to Japan’s historic imperial relationship with China as an avenue to understand contemporary relations, including the key issues of trade and its link to security, and the Senkaku Islands sovereignty dispute. It concludes that formal constitutional amendment of the peace clause remains unlikely in the short to medium term.
{"title":"Japan's Pacificism as National Identity and a 'Normal' Security Option","authors":"Simon Miller","doi":"10.38127/uqlj.v42i3.8551","DOIUrl":"https://doi.org/10.38127/uqlj.v42i3.8551","url":null,"abstract":"Japan faces its most serious and complex defence environment since the end of World War II. The country holds two significant security concerns: first, and critically, China’s burgeoning military, increasingly aggressive diplomacy, and destabilising actions around the Senkaku Islands in the East China Sea; second, North Korea’s continued unpredictable rhetoric and actions in its nuclear arming program and ballistic missile testing. Japan’s 2022 National Security Strategy proposes two unprecedented policy ideas to counter these threats: first, to significantly increase Japan’s defence budget; second, to acquire counterstrike long-range missile capabilities in response to an attack. Nonetheless, despite these security issues and policy developments, this article argues that formal amendment of the peace clause in art 9 of the Japanese Constitution remains unlikely. To understand the improbability of constitutional amendment, this article first explores Japan’s constitutional pacifism under the post-World War II Yoshida Doctrine and the US–Japan cornerstone security alliance, as well as the context of North Korea’s nuclear and ballistic missile threat and the emotive issue of abductions of Japanese citizens. The article then turns to Japan’s historic imperial relationship with China as an avenue to understand contemporary relations, including the key issues of trade and its link to security, and the Senkaku Islands sovereignty dispute. It concludes that formal constitutional amendment of the peace clause remains unlikely in the short to medium term.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":"10 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139213180","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-11-28DOI: 10.38127/uqlj.v42i3.8537
Nicholas Aroney, Paul Taylor
UN monitoring bodies frequently pose questions about Australia’s compliance with the hate speech mandates of key UN conventions. Recently, the Human Rights Committee enquired about inconsistencies across Australian state and territory anti-vilification legislation, as raising issues under the International Covenant on Civil and Political Rights (‘ICCPR’). This article examines the implications of those inconsistencies, both legal and practical, for Australia’s ICCPR compliance. At a time when hate speech is not abating but becoming a common feature of an increasingly fragmented society, this article asks the following questions: Are the settings for anti-vilification legislation at state and territory levels appropriate in the balance achieved between applicable human rights? Can Australian state and territory legislation be better targeted to distinguish between prohibited and preserved free speech? Do Australian state and territory laws conform to the requirements of the ICCPR and other UN instruments? The article concludes that the inconsistencies are problematic and lead to public uncertainty, exacerbated by the unpredictable application by some competent authorities. It proposes legislative solutions that focus less on the scope of prohibition (which is dependent on terminology lacking definitional precision) and more on bringing clarity to the scope of excluded conduct, in conformity with ICCPR demands protecting freedom of expression.
{"title":"Building Tolerance into Hate Speech Laws","authors":"Nicholas Aroney, Paul Taylor","doi":"10.38127/uqlj.v42i3.8537","DOIUrl":"https://doi.org/10.38127/uqlj.v42i3.8537","url":null,"abstract":"UN monitoring bodies frequently pose questions about Australia’s compliance with the hate speech mandates of key UN conventions. Recently, the Human Rights Committee enquired about inconsistencies across Australian state and territory anti-vilification legislation, as raising issues under the International Covenant on Civil and Political Rights (‘ICCPR’). This article examines the implications of those inconsistencies, both legal and practical, for Australia’s ICCPR compliance. At a time when hate speech is not abating but becoming a common feature of an increasingly fragmented society, this article asks the following questions: Are the settings for anti-vilification legislation at state and territory levels appropriate in the balance achieved between applicable human rights? Can Australian state and territory legislation be better targeted to distinguish between prohibited and preserved free speech? Do Australian state and territory laws conform to the requirements of the ICCPR and other UN instruments? The article concludes that the inconsistencies are problematic and lead to public uncertainty, exacerbated by the unpredictable application by some competent authorities. It proposes legislative solutions that focus less on the scope of prohibition (which is dependent on terminology lacking definitional precision) and more on bringing clarity to the scope of excluded conduct, in conformity with ICCPR demands protecting freedom of expression.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":"46 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139222007","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-11-28DOI: 10.38127/uqlj.v42i3.8539
Reid Mortensen
The Trans-Tasman Proceedings Acts took effect in Australia and New Zealand in 2013, and since then have created a well-functioning trans-Tasman judicial area in which the process of all Australian and New Zealand courts can be served, and the judgments of all of those courts can be enforced, anywhere in New Zealand or Australia. The unquestioned jurisdiction that is given to all Australian and New Zealand courts in trans-Tasman cases is also limited only by principles of forum conveniens and the enforcement of choice of court agreements. In Zurich Insurance Company Limited v Koper (‘Zurich Insurance’), the validity of the Australian rules of jurisdiction under the Trans-Tasman Proceedings Act 2010 (Cth) was challenged. The New South Wales courts and the High Court of Australia all rejected the challenge. This article is an account of the constitutional considerations that were canvassed throughout the Zurich Insurance litigation, including the possibility that a High Court majority recognised a positive constitutional implication when upholding the personal jurisdictions created by the Trans-Tasman Proceedings Act 2010 (Cth) and the recognition of a federal power to extend the jurisdiction of state courts in all international cases. It also undertakes an analysis of the private international law issues of Zurich Insurance: the clarification of the effect of the Trans-Tasman Proceedings Acts; and the unsatisfactory conclusions reached on the territorial application of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) — the issue that forced the need to consider the validity of the Trans-Tasman Proceedings Act 2010 (Cth) in the first place. In this respect, a plea is made for Australian state parliaments and courts to avoid extra-territorial overreach in the application of state legislation.
{"title":"Trans-Tasman Challenge","authors":"Reid Mortensen","doi":"10.38127/uqlj.v42i3.8539","DOIUrl":"https://doi.org/10.38127/uqlj.v42i3.8539","url":null,"abstract":"The Trans-Tasman Proceedings Acts took effect in Australia and New Zealand in 2013, and since then have created a well-functioning trans-Tasman judicial area in which the process of all Australian and New Zealand courts can be served, and the judgments of all of those courts can be enforced, anywhere in New Zealand or Australia. The unquestioned jurisdiction that is given to all Australian and New Zealand courts in trans-Tasman cases is also limited only by principles of forum conveniens and the enforcement of choice of court agreements. In Zurich Insurance Company Limited v Koper (‘Zurich Insurance’), the validity of the Australian rules of jurisdiction under the Trans-Tasman Proceedings Act 2010 (Cth) was challenged. The New South Wales courts and the High Court of Australia all rejected the challenge. This article is an account of the constitutional considerations that were canvassed throughout the Zurich Insurance litigation, including the possibility that a High Court majority recognised a positive constitutional implication when upholding the personal jurisdictions created by the Trans-Tasman Proceedings Act 2010 (Cth) and the recognition of a federal power to extend the jurisdiction of state courts in all international cases. It also undertakes an analysis of the private international law issues of Zurich Insurance: the clarification of the effect of the Trans-Tasman Proceedings Acts; and the unsatisfactory conclusions reached on the territorial application of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) — the issue that forced the need to consider the validity of the Trans-Tasman Proceedings Act 2010 (Cth) in the first place. In this respect, a plea is made for Australian state parliaments and courts to avoid extra-territorial overreach in the application of state legislation.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":"29 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139219483","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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