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Graw, Stephen --- "Preface" [2024] JCULawRw 1; (2024) 30 James Cook University Law Review i

PREFACE

In this year’s annual Mayo Lecture, Judge Nathan Jarro presents ‘An Aboriginal Perspective (from the Bench),’ discussing a little of his own background, sharing some of his observations, made as a circuit judge in Townsville, Mount Isa, and, to a lesser extent, Cairns, where the Indigenous population is more obvious than that of South-East Queensland, and reflecting, in particular, on the make-up of juries in the criminal trials over which he presided. He notes the apparent lack of Indigenous members of those panels and considers the possible reasons for their absence – with emphasis on the findings and recommendations of the Australasian Institute of Judicial Administration (’AIJA’) June 2023 report, ‘The Australian Jury in Black & White – Barriers to Indigenous Jury Representation’.

Dr Bede Harris’s paper looks at the impact of conflicts between animal owners and bodies corporate, noting that such conflicts are ‘a notorious feature of communal living’, not helped by the fact that the powers that bodies corporate have over animal ownership vary widely between Australian jurisdictions. It also considers the increasing trend towards local governments enacting animal containment measures and suggests a number of statutory reforms that could re-balance the law.

Problems with the absence of single legal framework to govern digital trade is the topic of Haodi Deng’s paper. It considers the main causes for the fragmentation of the available regimes and suggest a role for the WTO in creating and standardising a multilateral digital trade agreement within its own legal framework to complement and eventually supercede the rules under the existing regional trade agreements (RTAs).

Pre-filling, by the ATO, of information on personal income tax returns is now a standard feature of taxation administration both in Australia and overseas. However, one potentially major consequence of that change is not yet recognised in the legislation – the ongoing onus on taxpayers to ‘get it right’. In his paper Professor Rob Woellner reflects on whether the onus of proof provisions in ss 14ZZK and 14ZZO of the Taxation Administration Act 1953 (Cth) are still fit for purpose or, indeed, fair, given the amount of information on which the Commissioner now relies in making an assessment which is, in no real sense, sourced from the taxpayer.

Two papers consider practical aspects of legal practice. In the first, Barry Yau and Glenda Bloomfield examine what happens to law graduates once they complete their degrees and report on the results of a longitudinal study into the motivations of those who choose not to pursue (or to continue) a formal career in the legal profession. In the second, Maxine Evers probes a significant, but poorly understood, cohort within the legal profession, the sole general practitioner. Her paper notes that, despite their contributions to the legal profession in general and the communities they serve in particular, their contribution to ensuring access to the law tends to be lost in the confusing definitions of sole and small firm practitioners. Her article acknowledges their unique place in the profession and suggests that it will only be properly recognised if the concept of pro bono work is more broadly redefined.

Continuing with the legal profession theme Dr Jason Donnelly looks at the critical role of timely written reasons in legal decision-making. It explores the implications of delayed written reasons, particularly in high-stakes cases such as migration and visa cancellations, where timely decisions are essential for justice. It also underscores the necessity of thorough reasoning in both urgent and routine matters and highlights the need for administrative bodies to be adequately resourced to deliver well-reasoned, legally sound and timely decisions.

Moving from legal decision-making to Ministerial decision-making, Jason Livori and Harry Yous examine the Barngarla radioactive waste facility decision by the Federal Minister for Resources that was set aside following a challenge by the Barngarla Determination Aboriginal Corporation on the grounds of apprehended bias, legal unreasonableness, and alleged errors of law. The paper focuses on the successful apprehended bias argument and on the risks, for a Ministerial decision-maker, of allowing the distinction between their political and decision-making roles to blur.

In their paper Dr Sean Mulcahy and Professor Kate Seear review the effect of Queensland’s 2019 inclusion of a right to health services in its human rights charter on access to those services by people who use drugs. They conclude that, while there are no signs that the right to health services is retrogressing, there are some situations in which it is being deliberately avoided or where compliance with the right has ramifications for other human rights of those people.

In the concluding paper in this volume Kaushalya Madugalla looks at how the competing interests of copyright owners and copyright users are balanced – considering the question through the lens of the two provisions in the Copyright Act 1968 (Cth) that permit libraries and archives to copy copyright material and to provide it to users and other libraries and archives. The paper discusses several reasons why it has been difficult to achieve a workable balance and suggests that it will only be achieved through targeted clarifying legislation.

Finally, and in closing, the Editorial Board would like, once again, to record our sincere appreciation of the significant commitment by our contributors and our referees of both time and intellectual rigour. Without them the diversity of legal scholarship in this, the 30^th volume of the JCULR, would not have been possible. We are very grateful.

Emeritus Professor Stephen Graw

(for the Editorial Board)