Volume 42

Articles:

Editorial

Nicholas Carey

Perfectly Safe, Five Times Out of Six: The Briginshaw Principle and Its Paradoxes

Harry Stratton

When a method of risk assessment would endorse playing Russian roulette, something has gone badly wrong with its logic. Yet the current understanding of Briginshaw v Briginshaw means courts cannot properly account for the risks presented in just this sort of situation.

Domestic Relationship Evidence in Queensland: An Analysis of a Misunderstood Provision

Rebecca Campbell

Relationship evidence or evidence that reveals an individual’s propensity to engage in certain offences has been the subject of much discussion in the context of domestic violence. 

Why Her Behaviour Is Still on Trial: The Absence of Context in the Modernisation of the Substantive Law on Consent

Annie Cossins

Two cases studies illustrate the paradox at the heart of the substantive law of sexual assault – that it is possible (i) for a woman who does not communicate her consent to be deemed to consent; and (ii) for a defendant to have a reasonable belief about a woman’s consent even though it is accepted that she did not consent, both of which undermine the concept of her sexual autonomy.

The Osland ‘Wrong Turn’ and the Problems that Fictions Produce

Andrew Dyer

While much academic attention has been devoted to whether the doctrine of extended joint criminal enterprise (‘EJCE’) can be justified, the basic joint criminal enterprise doctrine (‘JCE’) has escaped much scrutiny. 

Determining a Suicide under Australian Law: A Comparative Study of Coronial Practice

Stephanie Jowett, Belinda Carpenter and Gordon Tait

This article examines the approach taken by Australian coroners to interpreting the law relating to suicide, and to applying it in practice. A previous review of the laws and commentary guiding coroners in Australian states and territories revealed not only that coroners are the only persons tasked with making routine legal determinations of suicide, but that such legal guidance lacks clarity. 

The Rule of Law on Instagram: An Evaluation of the Moderation of Images Depicting Women’s Bodies

Alice Witt, Nicolas Suzor and Anna Huggins

This article uses innovative digital research methods to evaluate the moderation of images that depict women’s bodies on Instagram against the Western legal ideal of the rule of law.

The Bindunbur ‘Bombshell’: The True Traditional Owners of James Price Point and the Politics of the Anti-Gas Protest

Lily O’Neill

On 23 November 2017, the Federal Court handed down its judgment in the Bindunbur case, a long-running native title dispute over significant areas of the Middle Dampier Peninsula in the Kimberley, North-West Australia. 

The My Health Record System: Potential to Undermine the Paradigm of Patient Confidentiality?

Gabrielle Wolf and Danuta Mendelson

Australia’s national electronic health records system – known as the ‘My Health Record (‘MHR’) system’ – may threaten to undermine the traditional paradigm of patient confidentiality within the therapeutic relationship.

The Public Sector Duty of Care and Diligence

Benjamin B Saunders

Every Australian jurisdiction has imposed a duty of care and diligence on directors and other officials of public sector entities. This duty is modelled on the duty applicable to directors and officers of corporations and plays a significant role in setting governance standards in the public sector.

Empowering Authors via Fairer Copyright Contract Law

Rita Matulionyte

The remuneration of Australian authors has been decreasing over the last few decades, partly due to unfair contracts between authors and publishers. At the same time, Australian copyright law appears to do nothing to address the problem.

Is There a Better Option than the Data Transfer Model to Protect Data Privacy?

Alan Toy and Gehan Gunasekara

The data transfer model and the accountability model, which are the dominant models for protecting the data privacy rights of citizens, have begun to present significant difficulties in regulating the online and increasingly transnational business environment.

A Shift in the United Nations Human Rights Committee’s Jurisprudence on Marriage Equality? An Analysis of Two Recent Communications from Australia

Oscar I Roos and Anita Mackay

The United Nations Human Rights Committee has not considered whether the International Covenant on Civil and Political Rights (‘ICCPR’) encompasses a right to marry a person of the same sex since 2002 in Joslin v New Zealand.