QUT Law Review

Journal Information
ISSN / EISSN : 2205-0507 / 2201-7275
Published by: Queensland University of Technology (10.5204)
Total articles ≅ 618
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Latest articles in this journal

Thanaphol Pattanasri
QUT Law Review, Volume 18; https://doi.org/10.5204/qutlr.v18i2.770

Abstract:
This paper will investigate whether the Australian legal and regulatory framework sufficiently addresses cybersecurity concerns particular to the smart home. Specifically, the paper will analyse the extent to which the introduction of the data breach notification scheme in Australia will apply to smart home device manufacturers regulated by the federal Privacy Act 1988 (Cth) regarding device breaches. By examining Australian Privacy Principle 11 and the introduction of mandatory data breach notification, the paper aims to determine whether the Australian privacy model of Principles-Based Regulation is capable of providing a market-based solution to cybersecurity concerns in the smart home.
Jason J Kilborn
QUT Law Review, Volume 18; https://doi.org/10.5204/qutlr.v18i2.767

Abstract:
Australia’s insolvency laws have a curious deficiency: There are virtually no provisions on the treatment of ongoing contracts. Such contracts may well represent some of the most valuable assets of a business debtor, small or large, especially in this new era of rapid technological innovation, where tangible property often pales in value to that inherent in intellectual property. Indeed, IP rights are often the nucleus around which a small business’ vitality revolves. The inability of businesses predictably to rely on, manage, and protect license contracts preserving IP rights is a problem that is sure to become more acute in the coming decades, as both the importance of IP rights and the incidence of business insolvency rise. Experience from across the Pacific portends a potential wave of coming disputes involving such rights in developed economies like Australia’s, potentially hitting small entrepreneurs hard and undermining the effectiveness of insolvency proceedings for these crucial debtors and their creditors. This article reveals a proliferation of disputes concerning IP license rights and several salient challenges confronted by both licensors and licensees, debtors and non-debtors, in domestic and cross-border insolvency proceedings in US insolvency proceedings. The common root of these challenges seems to be legislation that did not foresee the rise of IP licensing as a mainstay of modern entrepreneurship. The simple common solution, and a guide for Australian regulators, is more careful consideration of non-obvious pitfalls in laws that preserve IP license rights in insolvency cases to maximise value not only for the parties involved, but for modern societies who increasingly depend on innovation and entrepreneurship.
QUT Law Review, Volume 18; https://doi.org/10.5204/qutlr.v18i2.761

Abstract:
This special issue of the QUT Law Review focuses on contemporary legal and ethical problems in the sphere of children’s health and reproduction. The special issue arises from a multidisciplinary colloquium hosted at the Queensland University of Technology in July 2017, by the Australian Centre for Health Law Research (‘ACHLR’). This colloquium was attended by a diverse group of experts in the field, including legal scholars, legal practitioners, bioethicists and health practitioners. It was encouraging to see a number of attendees from the colloquium submit papers to this special issue, as well as a range of other leading scholars in the field. The focus on children’s rights is timely in the current Australian social and political climate and the research undertaken by the contributors to this special issue is significant in terms of conceptualising the rights of children, and analysing the extent to which the law prioritises their welfare and protects their interests.
Jodhi Rutherford
QUT Law Review, Volume 18; https://doi.org/10.5204/qutlr.v18i2.762

Abstract:
Anti-discrimination laws aim to protect people from harm to which they may be subject on the basis of personal attributes such as gender, race, age or disability. With human rights principles as their source, anti-discrimination laws can be seen to have equality as their goal however contested notions of equality make it difficult to determine whether the laws are reaching this objective. Anti-discrimination law occupies a peculiar position at the nexus of public and private law; it encompasses both civil and political rights and obligations between individuals.
QUT Law Review, Volume 18; https://doi.org/10.5204/qutlr.v18i2.759

Abstract:
In 2017, following an extensive review of its ethical guidelines on assisted reproductive technology (ART), the Australian National Health and Medical Research Council (NHMRC) upheld its moratorium on non-medical sex selection (NMSS) pending further public debate. Interestingly, the public consultation conducted by the NHMRC revealed a majority of submissions supported a permissive approach to NMSS, suggesting a potential shift in attitudes about NMSS in Australia. Historically, public consultation on NMSS both internationally and in Australia has revealed general opposition to this practice. This has reinforced concerns raised against NMSS in bioethical debates and been reflected in a restrictive regulatory approach to NMSS in many countries. The NHMRC public consultation highlights a potential disconnect between the concerns raised about NMSS in scholarly literature and more liberal community views. This paper reviews the submissions made to the NHMRC on NMSS and argues that the current moratorium should be revisited with a view to exploring a more nuanced approach to regulating NMSS in the future.
Selina Metternick-Jones
QUT Law Review, Volume 18; https://doi.org/10.5204/qutlr.v18i2.769

Abstract:
The integration of reproductive genetic testing into clinical care presents both opportunities and challenges for parents in regards to shaping the lives of their future children. The relationship between parents and their future children has become more complex and new questions are being raised in relation to the extent of parental responsibility to future generations. This paper explores the ethical permissibility of using pre-implantation genetic diagnosis (PGD) to select for impairment, through the use of two case studies involving identity-affecting decisions. Through analysing harm using both a personal and impersonal approach, it is concluded that if a couple, or single reproducer, have a choice between an impaired and healthy embryo, and that the same number of children would result from selection, there is a moral obligation for parents to select the ones which will have an acceptable level of interest fulfilment and a normal opportunity for health.
Selina Carolyne Metternick-Jones
QUT Law Review, Volume 18; https://doi.org/10.5204/qutlr.v18i2.747

Abstract:
The integration of reproductive genetic testing into clinical care presents both opportunities and challenges to parents in regards to shaping the lives of their future children. The relationship between parents and their future children has become more complex and new questions are being raised in relation to the extent of parental responsibility to future generations. This paper explores the ethical permissibility of using pre-implantation genetic diagnosis (PGD) to select for impairment, through the use of two case studies involving identify affecting decisions. Through analysing harm through both a personal and impersonal approach it is concluded that if a couple, or single reproducer, have a choice between an impaired and healthy embryo, and that the same number of children would result from selection, there is a moral obligation for parents to select the ones which will have an acceptable level of interest fulfilment and a normal opportunity for health.
David Russell
QUT Law Review, Volume 18; https://doi.org/10.5204/qutlr.v18i2.771

Abstract:
May I commence by acknowledging the honour done to me by asking me to give this, the nineteenth WA Lee lecture. I studied Equity, in part, under Professor Lee and he was a prominent member of the teaching community at my University College. At that time, and later, I came to appreciate the extent to which his reputation was established, not just in Australia, but throughout the common law world. Perhaps the most telling of a number of indications, once publications such as the masterful Ford & Lee are put to one side, is the fact that when Donovan Waters QC, former Oxford don, STEP Honorary Member and one of the negotiators of the Hague Trust Convention,[1] visited Australia as a guest of STEP, the one Australian he specifically asked us to arrange for him to meet was Tony Lee. So to give this lecture before an audience including Tony Lee fills me with not a little trepidation. He – and no doubt many others of you – will be immediately aware of any errors or imperfections. It is small consolation that, on this occasion at least, he will not be marking the paper.
Fiona Kelly
QUT Law Review, Volume 18; https://doi.org/10.5204/qutlr.v18i2.758

Abstract:
There is increasing international consensus that the best interests of donor-conceived children should be the focal point of laws regulating assisted reproduction, with particular attention given to the promotion of children’s health and wellbeing. To achieve this objective, the Australian regulatory system has adopted a position of openness, the presumption being that children’s health is enhanced by access to information about their conception, their donors, and other donor relatives. This article explores the lived experience of 25 single mothers by choice (SMCs) who have attempted to promote the health and wellbeing of their donor-conceived children by exploring the possibility of seeking access to information about their child’s donor and/or other donor relatives. It argues that, while aspects of Australia’s regulatory framework facilitate the type of openness SMCs sought for their children, significant gaps remain. In particular, the absence of legislation in some states, and inconsistencies between and within state laws mean that the rights of donor-conceived children vary dramatically across the country.
Eunro Lee, Jane Goodman-Delahunty, Megan Fraser, , Nina J Westera
QUT Law Review, Volume 18; https://doi.org/10.5204/qutlr.v18i2.757

Abstract:
Special measures have been implemented across the globe to improve evidence procedures in child sexual assault trials. The present study explored the day-to-day experiences and views on their use by five groups of Australian criminal justice practitioners (N = 335): judges, prosecutors, defence lawyers, police officers and witness assistance officers. Most practitioners reported routine use of pre-recorded police interviews and CCTV cross-examination of child complainants, but rare use with vulnerable adults. Despite persistent technical difficulties and lengthy waiting times for witnesses, high consensus emerged that special measures enhanced trial fairness and jury understanding. The perceived impact of special measures on conviction rates diverged widely. Defence lawyers disputed that this evidence was as reliable as in-person testimony. All practitioner groups endorsed expanded use of expert witness evidence and witness intermediaries. Ongoing professional development in all practitioner groups will further enhance justice outcomes for victims of child sexual abuse.
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