Pub Date : 2020-05-18DOI: 10.38127/uqlj.v37i1.4147
S. Waller
This short article mourns the loss of Laura Guttuso, celebrates her contributions and accomplishments as a scholar, and comments on one of her final publications which appeared as a chapter in a fascinating book entitled Anti-Cartel Enforcement in a Contemporary Age: Leniency Religion (‘Leniency Religion’). In this article, I discuss many of the general themes presented in the book as a whole and then turn to the specifics of Laura’s chapter on the role of leniency and the intersection of private and public enforcement of competition law.
{"title":"The Temple of Leniency","authors":"S. Waller","doi":"10.38127/uqlj.v37i1.4147","DOIUrl":"https://doi.org/10.38127/uqlj.v37i1.4147","url":null,"abstract":"This short article mourns the loss of Laura Guttuso, celebrates her contributions and accomplishments as a scholar, and comments on one of her final publications which appeared as a chapter in a fascinating book entitled Anti-Cartel Enforcement in a Contemporary Age: Leniency Religion (‘Leniency Religion’). In this article, I discuss many of the general themes presented in the book as a whole and then turn to the specifics of Laura’s chapter on the role of leniency and the intersection of private and public enforcement of competition law.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":"17 1","pages":"169-177"},"PeriodicalIF":0.0,"publicationDate":"2020-05-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75321555","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 : 2020-05-18DOI: 10.38127/uqlj.v37i1.4143
Albertina Albors-Llorens
The adoption of Directive 2014/104/EU on actions for damages for infringements of the competition rules has marked the beginning of a new era in the field of the private enforcement of the EU competition rules. The arduous legislative journey leading to the adoption of the Directive, the specific aspects pertaining to the exercise of damages actions covered by it and its attempt to establish an effective coordination between the systems of public and private enforcement have already received intense attention by antitrust scholars. However, this contribution will focus on the study of the Directive’s significance as a novel legal instrument in both the fields of EU competition law and EU law in general.
{"title":"Antitrust Damages in EU Law","authors":"Albertina Albors-Llorens","doi":"10.38127/uqlj.v37i1.4143","DOIUrl":"https://doi.org/10.38127/uqlj.v37i1.4143","url":null,"abstract":"The adoption of Directive 2014/104/EU on actions for damages for infringements of the competition rules has marked the beginning of a new era in the field of the private enforcement of the EU competition rules. The arduous legislative journey leading to the adoption of the Directive, the specific aspects pertaining to the exercise of damages actions covered by it and its attempt to establish an effective coordination between the systems of public and private enforcement have already received intense attention by antitrust scholars. However, this contribution will focus on the study of the Directive’s significance as a novel legal instrument in both the fields of EU competition law and EU law in general.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":"80 1","pages":"139-151"},"PeriodicalIF":0.0,"publicationDate":"2020-05-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80793081","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 : 2020-05-18DOI: 10.38127/uqlj.v37i1.4139
Caron Beaton-Wells, J. Clarke
A critical review of corporate pecuniary penalties for cartel conduct in Australia is timely if not overdue. Debates about the role of individual sanctions notwithstanding, financial penalties against corporations remain the predominant means of sanctioning cartel conduct in this country as elsewhere. These sanctions are therefore the primary mechanism by which deterrence is sought to be achieved. Consistent with the international position, deterrence has long been accepted as the primary, if not exclusive, rationale for cartel sanctions in Australia.
{"title":"Deterrent Penalties for Corporate Colluders","authors":"Caron Beaton-Wells, J. Clarke","doi":"10.38127/uqlj.v37i1.4139","DOIUrl":"https://doi.org/10.38127/uqlj.v37i1.4139","url":null,"abstract":"A critical review of corporate pecuniary penalties for cartel conduct in Australia is timely if not overdue. Debates about the role of individual sanctions notwithstanding, financial penalties against corporations remain the predominant means of sanctioning cartel conduct in this country as elsewhere. These sanctions are therefore the primary mechanism by which deterrence is sought to be achieved. Consistent with the international position, deterrence has long been accepted as the primary, if not exclusive, rationale for cartel sanctions in Australia.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":"8 1","pages":"107-125"},"PeriodicalIF":0.0,"publicationDate":"2020-05-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78119041","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 : 2020-03-28DOI: 10.38127/uqlj.v39i1.3899
L. Aitken
This eponymous book on the general part of the law of contract will be the standard Australian work for some time to come. It aims to provide a guide to that legion of legal readers ‘who are searching for basic statements of contract law’.
{"title":"Heydon on Contract","authors":"L. Aitken","doi":"10.38127/uqlj.v39i1.3899","DOIUrl":"https://doi.org/10.38127/uqlj.v39i1.3899","url":null,"abstract":"This eponymous book on the general part of the law of contract will be the standard Australian work for some time to come. It aims to provide a guide to that legion of legal readers ‘who are searching for basic statements of contract law’.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":"25 1","pages":"152-156"},"PeriodicalIF":0.0,"publicationDate":"2020-03-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90488981","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 : 2020-03-28DOI: 10.38127/uqlj.v39i1.2993
J. Crowe, Bri Lee
This article considers the role of the excuse of mistake of fact in Queensland rape and sexual assault law. We argue that the excuse has undesirable and socially regressive consequences by allowing reference to factors such as the complainant’s social behaviour, relationship to the defendant or lack of overt resistance that are at odds with the definition of free and voluntary consent. The excuse has also led to problematic results in cases involving impaired capacity (such as intoxication, mental incapacity or linguistic incapacity) by the defendant or the complainant. We canvass two potential reforms aimed at addressing these issues. The first would render the excuse inapplicable to the issue of consent in rape and sexual assault cases, while the second would limit the excuse to address its most troubling outcomes.
{"title":"The Mistake of Fact Excuse in Queensland Rape Law","authors":"J. Crowe, Bri Lee","doi":"10.38127/uqlj.v39i1.2993","DOIUrl":"https://doi.org/10.38127/uqlj.v39i1.2993","url":null,"abstract":"This article considers the role of the excuse of mistake of fact in Queensland rape and sexual assault law. We argue that the excuse has undesirable and socially regressive consequences by allowing reference to factors such as the complainant’s social behaviour, relationship to the defendant or lack of overt resistance that are at odds with the definition of free and voluntary consent. The excuse has also led to problematic results in cases involving impaired capacity (such as intoxication, mental incapacity or linguistic incapacity) by the defendant or the complainant. We canvass two potential reforms aimed at addressing these issues. The first would render the excuse inapplicable to the issue of consent in rape and sexual assault cases, while the second would limit the excuse to address its most troubling outcomes.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-03-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45853211","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 : 2020-03-28DOI: 10.38127/uqlj.v39i1.3897
Sarah McKibbin
Interest in Australian private international law has rekindled over the past decade. Australian courts are contending with more transnational litigation than ever before, facilitated by the ease with which people, business and information now cross borders.
{"title":"Commercial Issues in Private International law","authors":"Sarah McKibbin","doi":"10.38127/uqlj.v39i1.3897","DOIUrl":"https://doi.org/10.38127/uqlj.v39i1.3897","url":null,"abstract":"Interest in Australian private international law has rekindled over the past decade. Australian courts are contending with more transnational litigation than ever before, facilitated by the ease with which people, business and information now cross borders.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-03-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44318323","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 : 2020-03-28DOI: 10.38127/uqlj.v39i1.3893
Paul M. Taylor
The recent Review of Freedom of Speech in Australian Higher Education Providers ('the Review'), overseen by the Hon Robert French AC, identified areas for improving freedom of speech and academic freedom, and to that end proposed the adoption of umbrella principles embedded in a Model Code. The Review's engagement with international human rights law standards was confined, even though many are binding on Australia. As universities consider implementing the Review's recommendations, this article reflects on the Model Code in the light particularly of the standards established by the International Covenant on Civil and Political Rights ('ICCPR'). If the drafters of the Model Code had paid closer regard to the ICCPR and other international standards, the result may have been a scheme that more clearly and predictably distinguishes permissible from impermissible restriction on free speech and academic freedom, and gives greater priority to promoting the human rights of those in the academic community than to the institutional power to limit them.
最近由Robert French AC议员监督的澳大利亚高等教育机构言论自由审查(“审查”)确定了改善言论自由和学术自由的领域，并为此建议采用包含在示范守则中的总括原则。该报告与国际人权法标准的接触受到限制，尽管其中许多标准对澳大利亚具有约束力。在各大学考虑落实《审查报告》的建议之际，本文特别参照《公民权利和政治权利国际公约》确立的标准，对《示范法典》进行了反思。如果《示范法》的起草者更加注意到《公民权利和政治权利国际公约》和其他国际标准，其结果可能是制订一种办法，更清楚和可预见地区分对言论自由和学术自由的允许和不允许的限制，并更优先地促进学术界人士的人权，而不是重视限制他们的体制权力。
{"title":"Thinking Allowed in the Academy","authors":"Paul M. Taylor","doi":"10.38127/uqlj.v39i1.3893","DOIUrl":"https://doi.org/10.38127/uqlj.v39i1.3893","url":null,"abstract":"The recent Review of Freedom of Speech in Australian Higher Education Providers ('the Review'), overseen by the Hon Robert French AC, identified areas for improving freedom of speech and academic freedom, and to that end proposed the adoption of umbrella principles embedded in a Model Code. The Review's engagement with international human rights law standards was confined, even though many are binding on Australia. As universities consider implementing the Review's recommendations, this article reflects on the Model Code in the light particularly of the standards established by the International Covenant on Civil and Political Rights ('ICCPR'). If the drafters of the Model Code had paid closer regard to the ICCPR and other international standards, the result may have been a scheme that more clearly and predictably distinguishes permissible from impermissible restriction on free speech and academic freedom, and gives greater priority to promoting the human rights of those in the academic community than to the institutional power to limit them.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":"13 1","pages":"117-146"},"PeriodicalIF":0.0,"publicationDate":"2020-03-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73229616","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 : 2020-03-28DOI: 10.38127/uqlj.v39i1.3889
G. Taylor
From 1890 to 1892, Sir Samuel Griffith, as Premier of Queensland, promoted a scheme under which Queensland would itself have been divided into a federation of initially three provinces — North, Central and South Queensland — and then two provinces, North and South Queensland. This startling idea would certainly have changed the map of Australia, probably permanently. At least at some points, the idea was expressed that each province would enter the Australian federation as a separate State and the Queensland federal government would simply be dissolved upon federation. The Bill to divide Queensland into a federation of two provinces passed the lower House of State Parliament but was defeated in the nominee Legislative Council. It then fell victim to the change of government consequent upon Griffith’s appointment as Chief Justice of Queensland, to the urgent problems presented by the economic depression, and even, from the conservative point of view, to the rise of labour in politics. Little has been known about this nearly successful plan until now. This article attempts to close that gap.
从1890年到1892年，塞缪尔·格里菲斯爵士(Sir Samuel Griffith)作为昆士兰州的总理，推动了一项计划，根据该计划，昆士兰州本身将被划分为一个联邦，最初由三个省组成——北昆士兰、中昆士兰和南昆士兰——然后是两个省，北昆士兰和南昆士兰。这个惊人的想法肯定会改变澳大利亚的地图，可能是永久的。至少在某些情况下，每个省将作为一个独立的州加入澳大利亚联邦，而昆士兰联邦政府将在联邦成立后解散。将昆士兰州划分为两个省的联邦的法案在州议会下院获得通过，但在提名的立法委员会中被否决。随后，由于格里菲斯被任命为昆士兰州首席大法官而导致的政府更迭，由于经济萧条带来的紧迫问题，甚至从保守的角度来看，由于劳工在政治上的崛起，它成为了受害者。直到现在，人们对这个几乎成功的计划知之甚少。本文试图弥补这一差距。
{"title":"The Three Queenslands","authors":"G. Taylor","doi":"10.38127/uqlj.v39i1.3889","DOIUrl":"https://doi.org/10.38127/uqlj.v39i1.3889","url":null,"abstract":"From 1890 to 1892, Sir Samuel Griffith, as Premier of Queensland, promoted a scheme under which Queensland would itself have been divided into a federation of initially three provinces — North, Central and South Queensland — and then two provinces, North and South Queensland. This startling idea would certainly have changed the map of Australia, probably permanently. At least at some points, the idea was expressed that each province would enter the Australian federation as a separate State and the Queensland federal government would simply be dissolved upon federation. The Bill to divide Queensland into a federation of two provinces passed the lower House of State Parliament but was defeated in the nominee Legislative Council. It then fell victim to the change of government consequent upon Griffith’s appointment as Chief Justice of Queensland, to the urgent problems presented by the economic depression, and even, from the conservative point of view, to the rise of labour in politics. Little has been known about this nearly successful plan until now. This article attempts to close that gap.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":"60 1","pages":"33-83"},"PeriodicalIF":0.0,"publicationDate":"2020-03-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90318310","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}
{"title":"ANTITRUST DAMAGES IN EU LAW: THE INTERFACE OF MULTIFARIOUS HARMONISATION AND NATIONAL PROCEDURAL AUTONOMY","authors":"Albertina Albors-Llorens","doi":"10.17863/CAM.27824","DOIUrl":"https://doi.org/10.17863/CAM.27824","url":null,"abstract":"","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":"28 1","pages":"139"},"PeriodicalIF":0.0,"publicationDate":"2018-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81607042","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}
Judicial power, in any rule of law-based system, is a given. But how much is too much? That question has risen to particular prominence in recent years in the United Kingdom, where the judicial role has changed and grown in notable ways. In doing so, it has attracted criticism from some quarters, with charges of judicial overreach being made. This paper charts the growth of judicial power in the UK and considers how, given the particularities of the UK’s constitutional system, one might go about identifying the proper limits of judicial power. The paper begin by addressing the key constitutional parameters by reference to which the notions of judicial power and overreach have traditionally been calibrated in the UK. It then proceeds to trace the many senses in which the exercise of judicial power has grown, and considers the forces that have brought such developments about. Against that background, the paper contends that while the evolution of the judicial role evidences a reconceptualization, as distinct from the repudiation, of relevant fundamental constitutional principles, it should not be assumed that the UK constitution’s famous flexibility is limitless. To that end, the paper concludes by examining the recent and controversial judgments of the UK Supreme Court in the Evans and Miller cases, in which, in different ways, the proper limits of judicial power have been tested.
{"title":"Judicial Power and the United Kingdom's Changing Constitution","authors":"M. Elliott","doi":"10.2139/SSRN.3055862","DOIUrl":"https://doi.org/10.2139/SSRN.3055862","url":null,"abstract":"Judicial power, in any rule of law-based system, is a given. But how much is too much? That question has risen to particular prominence in recent years in the United Kingdom, where the judicial role has changed and grown in notable ways. In doing so, it has attracted criticism from some quarters, with charges of judicial overreach being made. This paper charts the growth of judicial power in the UK and considers how, given the particularities of the UK’s constitutional system, one might go about identifying the proper limits of judicial power. \u0000The paper begin by addressing the key constitutional parameters by reference to which the notions of judicial power and overreach have traditionally been calibrated in the UK. It then proceeds to trace the many senses in which the exercise of judicial power has grown, and considers the forces that have brought such developments about. Against that background, the paper contends that while the evolution of the judicial role evidences a reconceptualization, as distinct from the repudiation, of relevant fundamental constitutional principles, it should not be assumed that the UK constitution’s famous flexibility is limitless. To that end, the paper concludes by examining the recent and controversial judgments of the UK Supreme Court in the Evans and Miller cases, in which, in different ways, the proper limits of judicial power have been tested.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":"20 1","pages":"273"},"PeriodicalIF":0.0,"publicationDate":"2017-10-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78649459","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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