Category Archives: Law Research News

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No room for pollies’ personal views in euthanasia debate

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Whatever the opinion of the public, academics or medical professionals, QUT researchers say it will be politicians who decide on whether laws on euthanasia, or voluntary assisted dying, are changed.

  • Politicians’ personal views on euthanasia should not drive the debate
  • Issues of public concern, such as the impact on vulnerable people, should instead be at the forefront  Parliament’s role is to protect the vulnerable if laws are changed
  • Legislation applies to all; not just people with one view or another
  • Individuals are free to reject euthanasia as an option for themselves based on their own personal beliefs, so the fairest option is to make euthanasia lawful
  • Conscience votes on euthanasia not optimal, but may remain the only way to decide the issue

Researchers from QUT’s Australian Centre for Health Law Research (ACHLR) have published an article – Informing the Euthanasia Debate: Perceptions of Australian Politicians – in the University of New South Wales Law Journal on how politicians approach euthanasia and assisted suicide when they are voting on whether to pass a bill legalising such practices.

Led by Dr Andrew McGee, their paper follows the recent passing of the Voluntary Assisted Dying Act 2017 in Victoria, and covers a rarely examined perspective of the debate.

Learn more about ACHLR on their website or follow their twitter account @HealthLawQUT. 

You can read the full article and reach our media contacts on the QUT news page.

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Are traditional administrative law doctrines still fit for purpose in the digital age?

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Dr Anna Huggins

Dr Anna Huggins considers the implications of a recent Full Federal Court decision in AusPubLaw.

Dr Anna Huggins examines the case of Pintarich which she says will have implications for the reliance that Australian taxpayers can place on computer-generated correspondence from the Australian Tax Office. It raises interesting and complex questions about when an authorised officer makes a decision, and whether traditional conceptions of what constitutes a ‘decision’ are still appropriate in the digital era.

Automated processes hold promise for enhancing the efficiency and consistency of administrative decisions, particularly in high volume decision-making contexts. However, these advantages need to be weighed against the risks to public trust in government decision making caused by computer-generated errors, for which traditional administrative law doctrines thus far appear to provide limited protection.

As alluded to by Kerr J in his dissenting judgment in Pintarich, legal conceptions of what constitutes a decision and other administrative law doctrines need to evolve to reflect the reality of how decisions are made in practice in the digital age. Mr Pintarich’s unsuccessful appeal to the High Court represents a missed opportunity to further consider what constitutes a decision in an evolving administrative decision-making context.

Find out more about Dr Anna Huggins and her research outputs in e-prints.

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Can public policy benefit from considering religious perspectives?

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QUT Faculty of Law’s Dr Alex Deagon recently published an article in the prestigious Harvard Journal of Law and Public Policy which considers whether religious arguments ought to have a place in modern politics. Alex responds to the common objection that religion should not contribute to law and public policy because it can be sectarian, divisive and exclusive.

Rather, Alex proposes that religious contributions are an expression of religious freedom and equality because religious perspectives play essentially the same role as non-religious perspectives in policy debate between citizens, and are often just as contested. More importantly, religious arguments can pursue the public good as least as much as secular ones and so are essential resources for the democratic formulation of policy.

Alex is investigating further research on how religious contributions to public policy might enhance freedom and equality in our modern democracy. This will include an analysis of the US and the UK for insights on how they balance religious freedom with equality which Australia can use in its unique legal and political context.

See Alex’s track record to find out more about his research interests and achievements.

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Children as Tissue Donors – Dr Shih-Ning Then’s New Book

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Within Australia, on average 32 children annually will act as bone marrow donors for a sick relative. Worldwide, thousands of children undergo non-therapeutic procedures removing tissue to hopefully provide treatment and cure for a sick relative. While relatively common in medical practice, the participation of children as donors raises ethical, legal and practical issues due to the vulnerability of children in this context.

Dr Shih-Ning Then’s book, Children as Tissue Donors Regulatory Protection, Medical Ethics, and Practice, is the first book to provide a comprehensive and integrated legal, ethical and empirical analysis of tissue donation by children.

In recent years, a growing body of literature concerning the clinical experiences and outcomes for child donors has emerged. This book adds to this by examining another dimension – the regulatory frameworks at play. It examines the ethical arguments for and against children acting as tissue donors and provides an original analysis of the legal and non-legal regulatory frameworks governing children’s participation in the United Kingdom, United States and Australia.

Dr Shih-Ning Then

Shih-Ning’s research interests include issues in healthcare faced by groups traditionally considered as vulnerable in society who have often been denied a ‘voice’, including children and adults with decision-making difficulties. Shih-Ning is an interdisciplinary scholar who works with clinicians, ethicists and social scientists in her research. She is the recipient of competitive grant funding and is currently a member of the Australian National Health and Medical Research Council’s Organ and Tissue Working Committee.

Learn more about the Australian Centre for Health Law Research at QUT .

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Could algorithms help magistrates and judges in making sentencing decisions?

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Dr Nigel Stobbs

QUT Faculty of Law’s Dr Nigel Stobbs is collaborating with a team of legal experts, judges and data scientists to create a framework for the efficient and ethical use of machine learning algorithms and artificial intelligence in Australia’s criminal justice system.

Together with Professors Dan Hunter and Mirko Bagaric from Swinburne University, Dr Nigel Stobbs recently published details of a proposed trial of sentencing algorithms that will provide magistrates and judges with historical and predictive data to assist in making sentencing decisions.

The current stage of the project involves working with stakeholders to determine what levels of functionality, transparency and control are required over forecasting outcomes, to overcome the well-established risks of ‘Algorithmic Aversion’, which make users less confident in the value of machine learning tools.

The team is seeking funding for the next phase of the project in 2019, which will include development of a beta algorithm for field testing with judges in Queensland and Victoria and evaluation of user preferences for data visualisation interfaces and desktop dashboards.

Nigel will be presenting preliminary results of this project within the proceedings of the International Society for Therapeutic Jurisprudence, held in conjunction with the XXXVIth International Congress on Law and Mental Health in Rome, 21–26 July 2019.

To find out more, read the publication Can sentencing be enhanced by the use of artificial intelligence?

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Dr Bridget Lewis’ new book: Environmental Human Rights and Climate Change

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Dr Bridget Lewis

Dr Bridget Lewis’ recent book, Environmental Human Rights and Climate Change: Current Status and Future Prospects, is now available. Bridget’s book surveys environmental human rights protection around the world to highlight how human rights law can enhance how we respond to climate change.

Bridget’s research examines environmental problems using human rights law, particularly those arising from climate change, to argue that governments are violating human rights by failing to protect the environment. Bridget identifies how human rights law at the international, regional and domestic level applies to environmental degradation and then analyses that law to identify where it needs to be improved to protect future generations who will experience the consequences of environmental destruction. See Bridget’s research track record for a flavour of her research interests and achievements.

Bridget’s research continues to make an impact in her field. QUT staff can see her as part of the QUT women in in research showcase at QUT on Wednesday 21 November 2018 from 12pm to 2pm. Register now.

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Legal toolkit developed to help tackle legal issues that arise in aged care practice

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End of life law in aged care practice

A guest blog post by Penny Neller, Professor Lindy Willmott and Professor Ben White, Australian Centre for Health Law Research, QUT

(First published on the End of Life Directions for Aged Care Blog, 8 October 2018, reproduced with permission).

End of life law governs medical decisions made at the end of life, as well as around Advance Care Planning.

Every year in Australia thousands of deaths occur following a medical decision to withhold or withdraw life-sustaining treatment. This is just one type of end of life decision which may arise in aged care practice. For example, health professionals and aged care workers may also be called upon to:
•decide whether to follow a person’s Advance Care Directive;
•identify the substitute decision-maker for a person who lacks capacity;
•determine the appropriate level of pain and symptom relief that can be given to a person; or
•decide whether or not to provide emergency treatment, or transfer a person to hospital.

In these situations, health professionals and aged care workers perform a legal role. To do this effectively (and to understand what is lawful, and what is not) they need to know end of life law, and where to go for information and advice to manage legal issues. To support health professionals and aged care workers, End of Life Directions for Aged Care (ELDAC) has developed the Legal toolkit with information and resources to help them tackle legal issues that commonly arise in aged care practice.

Using the Legal toolkit can:

  • Help to manage difficult situations that arise in practice. A common example is uncertainty about whether it is lawful to provide palliative medication to a person for pain and symptom relief. Knowing the law can help health professionals and aged care workers to understand what action is allowed, and enables them to provide appropriate care.
  • Reduce legal risk. Better legal knowledge can help health professionals and aged care workers to act lawfully, and reduce the risk of criminal or civil liability.
  • Improve communication with individuals, their families and substitute decision-makers. Disputes about treatment decisions can often arise because of different understandings about the law.
  • Enhance health professionals’ and workers’ confidence and ability to support people receiving aged care, their families, or colleagues where legal issues arise. An example is a resident seeking an aged care worker’s help to undertake Advance Care Planning, or a family seeking information about making decisions regarding care or treatment for a family member.
  • Deliver high quality, appropriate care when legal situations arise.

Most importantly, understanding the law matters to the people being cared for, and their families. The law is designed to protect individuals’ rights so that people receive treatment that is consistent with their goals and preferences. Respecting a person’s care and treatment decisions can support them to be comfortable for the remainder of their life, and experience a ‘good death’.

The ELDAC Legal toolkit was designed by end of life law experts. It contains factsheets, mythbusters, case studies and resources on each of the following legal topics: Capacity and consent to medical treatment; Advance Care Directives; Substitute decision-making; Withholding and withdrawing life-sustaining treatment; Medication for pain and symptom relief; Futile or non-beneficial treatment. There is also a factsheet which provides an overview of End of life law for the Aged care sector, and explains the role of law in aged care practice.

Unfortunately, end of life law is complex, and can be complicated to apply in practice. The law that applies is different depending on whether or not a person has capacity. The law also differs across Australia, as each State and Territory has its own end of life laws. To help address this the factsheets provide a general overview of Australian law each topic, and contain useful links to End of Life Law in Australia, a website created by the toolkit authors which provides detailed information on end of life law in each Australian State and Territory.

The mythbusters clarify common myths about the law, while the case studies (which are based on real issues in aged care) show how the law applies to aged care practice.

From late January 2019 toolkit users will also be able complete online training modules about end of life law through the End of Life Law for Clinicians training project at QUT. Links to the training modules will be uploaded to the legal toolkit in early 2019. For further information and updates about the online training modules email endoflifelaw@qut.edu.au.

The Legal toolkit is online and freely accessible here.

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Law Council Report cites submission from Australian Centre for Health Law Research members

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The Law Council of Australia’s Justice Project: Final Report has been released. The Justice Project aimed to tackle impediments to access to justice for those experiencing significant economic and other disadvantage.

The report cites the submission made by Australian Centre for Health Law Research (ACHLR) and QUT academics Kelly Purser, Bridget Lewis, Tina Cockburn and Fiona McDonald. Citing Purser et al’s submission, the Report identifies older persons, especially older women, as a ‘hidden’ group experiencing significant disadvantage, where knowledge gaps require targeted research.

The Report also makes reference to Purser et al’s recommendation to develop national capacity guidelines to establish a nationally consistent, best-practice approach to assessing legal capacity.

Read the final report.

Read the submission from ACHLR.

Dr Kelly Purser

Associate Professor Fiona McDonald

Dr Bridget Lewis

Associate Professor Tina Cockburn

 

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Law research to help victims of child abuse

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Photograph of Ben Mathews

Professor Ben Mathews’s research on the law relating to child abuse and neglect has influenced legislative reform and policy development across Australia and internationally, including reforms to mandatory reporting laws and laws relating to civil claims for injury through child sexual abuse.

Mandatory reporting of suspected abuse

Each year, thousands of Australian children are sexually abused, causing lifelong psychological and social cost, and vast socioeconomic costs. Professor Mathews’s work was a key driver behind the enactment of the Child Protection (Mandatory Reporting—Mason’s Law) Amendment Bill 2016, which requires early childhood educators and carers to report suspected cases of child physical abuse and sexual abuse.

Reform of statute of limitations for civil claims

Until recently, survivors of child abuse had only three years after turning 18 in which to make a claim. The time limit, in addition to psychological injuries, made it almost impossible for survivors to bring civil claims. Professor Mathews recognised the need for change, and has worked systematically since 2003 to bring about reform across Australia.

Professor Mathews’s research was cited extensively by the Royal Commission into Institutional Responses to Child Sexual Abuse in 2015, which recommended that the time limits for civil claims be removed. The time limit has now been abolished in seven states and territories, opening up the possibility for survivors to make civil claims.

A voice for the vulnerable

Find out more about Professor Mathews’s work in our research impact story, A voice for the vulnerable.

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EVENT: Intellectual Property and Sustainable Development

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Join some of the leading thinkers in their fields for a one-day symposium on 6 September 2018, on the relationship between intellectual property and the United Nations Sustainable Development Goals.

As well as special guest Associate Professor Sara Bannerman, the Canada Research Chair in Communication Policy and Governance at McMaster University, this event will feature speakers from QUT, Griffith University, and the University of Queensland.

Associate Professor Sara Bannerman – Canada Research Chair in Communication Policy and Governance, McMaster University

This event is part of the research theme of international trade and sustainable development at the QUT IP and Innovation Law Research Program. It will cover issues such as access to knowledge, public health, access to clean energy and climate change, and the global economy. Particular focus will be given to global issues within the remit of the World Intellectual Property Organization’s Development Agenda.

This event considers the relationship between intellectual property and the United Nations Sustainable Development Goals (SDGs). The new Secretary-General of the United Nations Antonio Guterres has expressed concerns about the implementation of the Sustainable Development Goals. ‘Implementation has begun, but the clock is ticking… The rate of progress in many areas is far slower than needed to meet the targets by 2030.’ The Director-General of the World Intellectual Property Organization Francis Gurry has emphasised the interconnections between intellectual property and the Innovation Goal (SG9). He also stressed that innovation has an impact on a number of other SDGs, such as SDG2 (End hunger, achieve food security and improved nutrition and promote sustainable agriculture), SDG3, SDG6 (Ensure availability and sustainable management of water and sanitation for all), SDG7 (Ensure access to affordable, reliable, sustainable and modern energy for all), SDG 8, SDG11 (Make cities and human settlements inclusive, safe, resilient and sustainable), and SDG13 (Take urgent action to combat climate change and its impacts).

Special guest

Associate Professor Sara Bannerman
Canada Research Chair in Communication Policy and Governance, McMaster University

Speakers

Dr Md Shahiduzzaman – Research Fellow, QUT Business School, Management, QUT
Muhammad Zaheer Abbas – PhD Law Candidate, QUT
Dr Rowena Maguire – Senior Lecturer, Faculty of Law, Law School, QUT
David J. Jefferson, JD – PhD Candidate, University of Queensland
Dr Carol Richards – Senior Lecturer, School of Management, Business School, QUT
Professor Charles Lawson – Griffith University
Associate Professor Saiful Karim – Faculty of Law, Law School, QUT
Professor Virginia Barbour – Director AOASG, QUT
Professor Matthew Rimmer – Professor of Intellectual Property and Innovation Law, Faculty of Law, QUT
Sanath Sameera Wijesinghe – PhD Researcher, QUT
Jocelyn Bosse  – PhD Candidate, University of Queensland
Dr Kamalesh Adhikari – Research Fellow, University of Queensland
Dr Peter Walters – Senior Lecturer, University of Queensland
Dr Frances Humphries – Griffith University

Please follow the link to register – http://bit.ly/IPandSD