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Many common law jurisdictions recognise that directors have an obligation to consider the interests of company creditors when the company is experiencing financial distress. Despite numerous cases attempting to crystalise legal principles related to this obligation and significant academic commentary on the topic, the parameters of the obligation remain uncertain. This paper provides an analytical comparison of the latest case law in Australia and the UK concerning the two most important issues that exist in relation to this obligation, namely when is the obligation triggered and what do directors have to do to ensure that they comply with the obligation. We found that the UK courts appear to be adopting a much more restrictive approach regarding the trigger for the obligation, whereas the obligation may arise much earlier in Australia, due to the liberal framing of the trigger. An analysis of case law also revealed that the weight attached to the interests of creditors once the obligation is triggered seems to be much more significant in the UK, compared to Australia. This analysis is important as there is no doubt that courts in other common law jurisdictions, and particularly in the Commonwealth, will examine the Australian and UK jurisprudence in making their decisions in relation to any claim that directors have failed to comply with the obligation to consider the interests of creditors. [ABSTRACT FROM AUTHOR]

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. [ABSTRACT FROM AUTHOR]

Until recently, a historical conviction for a homosexual offence remained on an individual's criminal record until expungement legislation was enacted to facilitate such convictions to be spent. An analysis of parliamentary debates in New Zealand/Aotearoa and across Australia highlights the aim and opinions of lawmakers in their desire to bring about a therapeutic remedy to address the 'criminal stain' of a conviction for a historical homosexual offence. Along with the aim to remedy the effect of a conviction, parliaments used the law reform debate as a broader therapeutic project of inclusiveness for lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) communities. The success of expungement is evidenced by the passing of legislation, with most applications to expunge granted. These positive outcomes are countered by a low number of applications to expunge, a refusal by all governments to provide reparations and the use of expungement legislation to garner favour with all members of LGBTIQ communities--a move open to an accusation of government virtue signalling. [ABSTRACT FROM AUTHOR]

Objective: In Queensland, where a person experiences a major disturbance in their mental capacity, and is at risk of serious harm to self and others, an emergency examination authority (EEA) authorises Queensland Police Service (QPS) and Queensland Ambulance Service (QAS) to detain and transport the person to an ED. In the ED, further detention for up to 12 h is authorised to allow the examination to be completed. Little published information describes these critical patient encounters. Methods: Queensland's Public Health Act (2005), amended in 2017, mandates the use of the approved EEA form. Data were extracted from a convenience sample of 942 EEAs including: (i) patient age, sex, address; (ii) free text descriptions by QPS and QAS officers of the person's behaviour and any serious risk of harm requiring urgent care; (iii) time examination period commenced; and (iv) outcome upon examination. Results: Of 942 EEA forms, 640 (68%) were retrieved at three 'larger central' hospitals and 302 (32%) at two 'smaller regional' hospitals in non‐metropolitan Queensland. QPS initiated 342 (36%) and QAS 600 (64%) EEAs for 486 (52%) males, 453 (48%) females and two intersexes (<1%), aged from 9 to 85 years (median 29 years, 17% aged <18 years). EEAs commonly occurred on weekends (32%) and between 2300 and midnight (8%), characterised by 'drug and/or alcohol issues' (53%), 'self‐harm' (40%), 'patient aggression' (25%) and multiple prior EEAs (23%). Although information was incomplete, most patients (78%, n = 419/534) required no inpatient admission. Conclusions: EEAs furnish unique records for evaluating the impacts of Queensland's novel legislative reforms. [ABSTRACT FROM AUTHOR]

In some Australian and international jurisdictions, coroners can deliver a legal determination of death whilst a person remains missing. Empirical attention to this unique area of law is sparse. Semi-structured interviews with 22 coronial professionals in New South Wales (NSW), Australia revealed their views about suspected death inquests, the impact of this judicial process on family well-being and measures to support and inform relatives in the coroner's court. Thematic analysis yielded five themes: (1) Information to the greatest extent possible; (2) Timeliness; (3) Opportunity to share their views; (4) In the public arena; and (5) Treat people like human beings. The professionals believed that relatives derive therapeutic benefit from timely, sensitive, comprehensible proceedings with opportunities for ritual, meaningful participation and fresh evidence whereas insensitive, incomprehensible and/or untimely proceedings magnify distress. Our findings promote understanding of trauma-informed practices which could mitigate harm to court participants and benefit other courts and jurisdictions. [ABSTRACT FROM AUTHOR]

The observations and commentary below seek to distil the principles that seem to emerge from the jurisprudence concerning the general provisions of Pt IVA over the last 40 years with a view to providing guidance in the construction of those provisions and their application to different facts going forward; and to analyse the processes of reasoning in arriving at those principles to provide an informed assessment of the reliance that can be placed on them as precedential authority. [ABSTRACT FROM AUTHOR]

The article discusses the benefits for Australia of adopting U.S. law in resolving interstate groundwater dispute resolution. It explains interstate litigation in the U.S. and the role of groundwater within it. It examines interstate disputes in Australia and the role of groundwater in the future. It explores the Australian High Court's adoption of ideas from other countries and the constitutional basis under which it can adopt U.S. Supreme Court jurisprudence in interstate water disputes.

The reflective loss principle is an English common law rule, founded in policy, which prevents personal recovery by shareholders against a wrongdoer for loss that is not distinct from the company's, such as a diminution in share value. Despite Australian courts adopting this principle, seemingly without scrutiny, recent Australian jurisprudence has diverged from the latest English approach by maintaining the dual policy justification of the principle, namely the prevention of both double recovery and the circumvention of the rule in Foss v Harbottle. This article proposes that the uniform application of this principle may give rise to injustices by denying shareholders from recovering loss to which they are ought to be entitled. The solution? Expanding the categoriesof exceptionstocircumstances wherethetwo policyconsiderations are not engaged, for example, when the wrongdoer is insolvent, and where the company and wrongdoer have entered into a covenant not to sue. [ABSTRACT FROM AUTHOR]

From Re Stringer (1877) to Peekay Intermark Ltd v Australia and New Zealand Banking Group Ltd (2006), the contractual estoppel has consistently held partiesto contractual terms, including the assumed state of affairs. Against wider thinking that there is no theoretical basis to contractual estoppel, this article argues, by examining relevant case law, that voluntary undertaking or mutual assent of the parties best espouses the underlying principle that prevents either parties from asserting different facts. [ABSTRACT FROM AUTHOR]

The key actors in the legal profession -- judges, legal practitioners and the academy -- each have roles to play in influencing and shaping the development of Australian constitutional law. This article addresses the importance of those key actors taking their own roles, and the roles of each other, seriously. It does so by examining three core themes -- or threads -- running through the fabric of Australian constitutional law: facts, framework and the judicial function. That examination reveals the importance of judges taking the role of judging as seriously as they do in shaping Australian constitutional law, but also the importance of practitioners and the academy understanding the judicial role, as well as their own roles, in helping to shape Australian constitutional law. In the end, judges, legal practitioners and academics travel the same road. Each brings unique contributions to the unceasing development and shaping of the mosaic which is Australian constitutional law. [ABSTRACT FROM AUTHOR]

This Article provides a duty-based theory of constitutional alienage. Australian jurisprudence is used to illustrate how this theory would apply, with possible extensions to the other two great Anglo-American federations, the United States and Canada.* An alien is a person who has no permanent allegiance to the Australian sovereign. This allegiance requires two reciprocal bonds. The first is a duty of permanent loyalty to the sovereign. The duty can arise from only four rights: jus soli, jus sanguinis, jus domicile, and jus asyli. The second bond is a duty of permanent protection owed by the sovereign to said person. While the rights are constitutional, the duties are statutory. In other words, the duties can be regulated without the need to amend the Constitution. Superposed loyalties to different sovereigns constitute the outer limit on regulating the duty of loyalty, while statelessness is the outer limit on the duty of protection. The legal fiction of superposed loyalties echoes Schrodinger's cat, where a person's permanent loyalties are superposed until she breaches her duty of loyalty, which leaves only an allegiance to a foreign state. The theory argues that in the Australian context, some persons can be constitutional aliens and statutory citizens at the same time, which necessitates legal reform. [ABSTRACT FROM AUTHOR]

This article outlines the Australian legal position relevant to minors and the commencement of hormone treatment for Gender Dysphoria (GD). It traces the significant Australian legal developments in this field and compares the Australian jurisprudence with recent English caselaw. In Quincy Bell and Mrs A v The Tavistock and Portman NHS Foundation Trust and Ors , the English High Court held that minors below 16 years are not likely to have the requisite competency to lawfully consent to the commencement of puberty suppressing drugs. The Court of Appeal subsequently overturned this decision, but there are important aspects of the High Court's reasoning that warrant further analysis, particularly some of the underlying reasoning about the nature of GD as a condition and its treatment. This article highlights several common themes when comparing the High Court's reasoning in Bell with Australian jurisprudence and highlights how the Australian position has advanced significantly since the first Australian cases in this field were decided. This comparison shows that the Australian perspective is important in demonstrating how judicial views can advance over time alongside a deeper understanding of GD, its treatment, and the broader impact of a requirement to involve the court in such cases. It is concluded that the Australian perspective should be considered in future English cases. [ABSTRACT FROM AUTHOR]

This article extends discussion of the recently introduced licence theory of legal personality to the two remaining categories of legal personality available under Australian law, namely, Natural Legal Personality and Bodies Politic. The licence theory conceives of legal personality as designated legal functions, grouped together for nominated purposes. More particularly, it conceives of legal personality as a licensing system, whereby legal personality is granted by the State subject to various nominated conditions. These conditions reflect the overarching purpose behind the grant of legal personality, and may be organised into three general categories: Capability Conditions; Public Interest Conditions; and Use Conditions. According to the licence theory, in forming an understanding of legal personality it is necessary to consider the following design factors: i) the means by which a particular legal person is activated; ii) the purpose underwriting the grant of legal personality by the State; iii) legal capacities and obligations; and iv) the various different conditions operative in relation to the grant of a particular class of legal personality. In this article, these four factors are applied and considered in relation to both Natural Legal Personality and the Commonwealth of Australia (being the pre-eminent manifestation of the Body Politic). [ABSTRACT FROM AUTHOR]

Introduction: The objectives of this study was to conduct an updated comparative audit involving a larger and more representative group of accredited chiropractic programs in order to determine if (i) if there has been any changes in the delivery of JEB curricula since the first audit was conducted in 2010, and (ii) provide recommendations that could lead toward a standardized or model JEB curriculum worldwide. Methods: This study was approved by the ERB of the University of South Wales. Twenty-one chiropractic programs agreed to provide JEB course outlines for review. Results: A total of 88 different course outlines, which listed 83 different topics pertaining to JEB course content, were submitted for review. Conclusion: The results of this comparative audit revealed there has been an increase in the variability of JEB course content taught to students over time. Recommendations are provided for the next steps that could lead toward a standardized or model JEB curriculum curricula. [ABSTRACT FROM AUTHOR]

Digital technologies are increasingly being used as tools for the perpetration of domestic violence. Little empirical research to date has explored the nature and impacts of technology-facilitated domestic violence (TFDV), and even less attention has been paid to the experiences of immigrant and refugee women. This article examines the nature and impacts of TFDV as experienced by immigrant and refugee women. Drawing on interviews with 29 victim-survivors and 20 stakeholders, we argue that although immigrant and refugee women may experience TFDV in similar ways to non-immigrant and refugee women, they face unique challenges, such as language barriers, cultural bias from support services, lack of financial resources, lack of trust in state institutions, and additional challenges with justice and migration systems. Immigrant and refugee women also face multiple structural layers of oppression and social inequality. Accordingly, we argue that a multifaceted approach is required to address TFDV that includes culturally sensitive and specific law reform, education, and training. [ABSTRACT FROM AUTHOR]

Working in high consequence yet low frequency, events Australian fire service Incident Controllers are required to make critical decisions with limited information in time-poor environments, whilst balancing competing priorities and pressures, to successfully solve dynamic large-scale disaster situations involving dozens of personnel within the Incident Management Team, including of front-line responders from multiple jurisdictions. They must also do this within the boundaries of public and political expectations, industrial agreements, and the legal requirement to maintain a safe workplace for all workers, inclusive of volunteers. In addition to these operational objectives, fire services must also provide realistic training to prepare frontline staff, whilst satisfying legislative requirements to provide a safe workplace under legislation that does not distinguish between emergency services and routine business contexts. In order to explore this challenge, in this article we review the different safety standards expected through industrial and legal lenses, and contextualize the results to the firefighting environment in Australia. Whilst an academic argument may be presented that firefighting is a reasonably unique workplace which exposes workers to a higher level of harm than many other workplaces, and that certain levels of firefighter injury and even fatality are acceptable, no exception or distinction is provided for the firefighting context within the relevant safety legislation. Until such time that fire services adopt the legal interpretations and applications and develop true safety management systems as opposed to relying on "dynamic risk assessment" as a defendable position, the ability of fire services and individual Incident Controllers to demonstrate they have managed risk as so far as reasonably practicable will remain ultimately problematic from a legal perspective. [ABSTRACT FROM AUTHOR]

Violence has underpinned many of the laws relating to LGBTQIA+ people in Australia since colonisation, demarcating them as deviant and criminal and denying them access to the same rights as others. Since the 1970s, legal reforms have, as Robert Cover might describe it, demonstrated the redemptive quality of law in its response to LGBTQIA+ peoples' commitment and activism over time. More recently, the legal definition of marriage was amended to include two people regardless of their sexual orientation, gender identity, or sex characteristics. Whilst this legal achievement was widely celebrated, the postal survey on same-sex marriage that was conducted as a pre-requisite for legislative change, brought to the fore the continuing violence that LGBTQIA+ people suffer as a result of law even in moments of redemption. In this empirical paper, I draw on Robert Cover's jurisprudential practices and bring these into relationship with the lived experiences of LGBTQIA+ people to both expose the nature of the violence experienced by LGBTQIA+ people during the postal survey and in the name of legal equality, and to frame LGBTQIA+ peoples' legal activism as queer jurisprudence — to show how LGBTQIA+ people do create law and legal meaning through community action. [ABSTRACT FROM AUTHOR]