The University of New South Wales law journal

The Royal Commission into Aged Care Quality and Safety (‘RCAC’) revealed that abuse and neglect are widespread in residential aged care facilities (‘RACF’). In 2021, the RCAC’s Final Report recommended that a new Aged Care Act be enacted to replace the Aged Care Act 1997 (Cth), and the new Act explicitly protect the rights of RACF residents. The recommendation included five uniquely formulated rights to be protected, drawing on international human rights law. This article aims to ensure that the new Act adequately respects, protects and fulfils the rights of RACF residents. This article explores the deficiencies in the current regulatory scheme, documenting the significant opportunity for improvement that rights-based legislation represents. It critiques the five RCAC-formulated rights, analysing the source of the rights within international treaties, and the scope of those rights. The article concludes by evaluating the proposed enforcement mechanisms for the RCAC-formulated rights against international enforcement obligations.

Anita Mackay

Laura Grenfell

Julie Debeljak

University of New South Wales Law Journal

A New Aged Care Act for Australia? Examining the Royal Commission’s Proposal for Human Rights Inclusive Legislation

澳大利亚新老年人护理法？审查皇家委员会关于人权包容性立法的建议

Legal accountability in mental health care is increasingly gaining recognition in human rights discourse. Negligence is one accountability mechanism that can provide compensation, but has been criticised for failing to deliver justice. The Mental Health and Wellbeing Act 2022 (Vic), along with immunity provisions for clinicians who act in good faith, have shone the spotlight on whether current mechanisms are effective accountability measures. Analysis of authorities suggests that clinicians and health authorities will ordinarily be protected from liability when clinical decisions are made that are consistent with mental health legislation. Yet clinicians often misunderstand the concept of ‘duty of care’ and use it as an extra-legal power to control. Using a fictional vignette, this article addresses the tensions and dilemmas that exist in tort law and mental health care. Our analysis lends itself to two solutions: the need for effective training and the promise of no-fault insurance schemes.

Penelope Weller

Tina Popa

Lauren Walsh-Buckley

Joey Cook

Chris Maylea

The Importance of Legal Accountability in Negligence and Mental Health Care

疏忽与心理健康护理中法律问责的重要性

The persistent crisis of Indigenous deaths and harms in custody can be understood as a crisis of accountability – the predictable result of ongoing systemic failures to hold police and prison officials responsible for the harms suffered by Indigenous people in their care. This article considers the role of civil liability as a mechanism of such accountability, drawing on a range of case examples involving both individual and class actions. It outlines potential avenues for suing police for harms suffered in custody, as well as the legal, financial, and logistical hurdles faced by would-be plaintiffs. It also analyses how vicarious liability can either undermine or support the accountability impacts of liability. Reflecting on lessons from other jurisdictions, it argues that while civil actions may bring reparations for individuals and their families, targeted reforms are necessary for civil liability to function as a mechanism of accountability and thereby drive meaningful, systemic change.

Lauren Griffin

Sue the Police: The Role of Civil Liability in Addressing Indigenous Harms in Custody

起诉警察：民事责任在解决拘留中对原住民伤害问题中的作用

‘Buy now pay later’ (‘BNPL’) has been described as ‘an Australian fintech growth story’, an innovative and disruptive financial product that has fundamentally changed the global market for consumer credit. Providers assert that BNPL promotes financial inclusion, allowing consumers to avoid the fees and interest associated with other, more expensive financial products. Yet critics maintain that BNPL is too readily accessible and that it can cause serious hardship, particularly for low income earners. This article is the first scholarly empirical study to focus on low income earners’ use of BNPL. It draws on a series of focus groups with consumer advocates and an online survey of consumers who have used BNPL, either alone or in conjunction with payday loans or pawn loans. Drawing on this data, the authors evaluate the Commonwealth Government’s current proposal to regulate BNPL more stringently, under the National Consumer Credit Protection Act 2009 (Cth).

Lucinda O'Brien

Ian Ramsay

Paul Ali

Innovation, Disruption and Consumer Harm in the Buy Now Pay Later Industry: An Empirical Study

"先买后付"行业中的创新、颠覆与消费者损害：一项实证研究

Aspirations for an Indigenous treaty or treaties in Australia must confront a challenging landscape. How can we retrofit a substantive treaty-making process on a legal and political system that has not been designed to engage meaningfully with Aboriginal and Torres Strait Islander peoples? Talking treaty more than two hundred years after first contact is difficult, but many jurisdictions are exploring this conundrum right now. This article provides an update on the Indigenous-State treaty processes underway in Australia. It then examines five key issues that these processes are currently grappling with.

Harry Hobbs

Taking Stock of Indigenous-State Treaty-Making in Australia: Opportunities and Challenges

评估澳大利亚原住民与国家之间的条约制定：机遇与挑战

There is an extensive literature on third party litigation funding (‘TPLF’) of class actions and a separate literature on the longer- standing use of TPLF in claims by insolvency administrators such as liquidators and bankruptcy trustees. Despite this, there has been little comparative study of TPLF in the two species of litigation. This article seeks to fill that gap and, in so doing, draw some distinctions impacting the issue of appropriate regulation in the two contexts. These include salient differences between repeat playing Australian Securities and Investments Commission-regulated professional insolvency practitioners governed under corporate and personal insolvency regulatory architecture and less experienced, less regulated representative plaintiffs in class actions. Further, the existence of vulnerable class members as silent ‘parties’ to class action litigation and funding arrangements and the effect of settlement processes affecting non-responsive class members is noted. These are found to raise differences, despite both types of litigation benefitting from substantial court supervision.

Michael Duffy

Sulette Lombard

A Comparative Analysis of Litigation Funding in Insolvency Claims and in Class Actions

破产诉讼与集体诉讼中诉讼融资的比较分析

This article assesses a hypothetical battery claim for noise exposure in Australia using Canada’s Freedom Convoy as a case study. I first advance a normative account for why battery ought to respond to noise- related interferences using Kit Barker’s taxonomy of ‘vindication events’. I argue that battery, relative to negligence and private nuisance: (1) more accurately ‘marks’ and ‘declares’ the plaintiff’s right to bodily integrity and ‘denounces’ the defendant’s intentional interference; and (2) improves access to ‘appropriate compensation’ post-infringement. I also explain how the ‘prevention of rights infringements’ fits within my normative account. I then answer the key doctrinal questions of whether and when noise exposure constitutes an actionable battery. I draw from existing common law precedents to show that physical contact by sound waves is ‘direct’ and capable of being ‘offensive’. I conclude by addressing the concern that my doctrinal conclusions would unduly burden protesters’ implied freedom of political communication.

Brandon D Stewart

Intentional Noise Exposure as a Battery? A Case Study of Canada’s Freedom Convoy

有意噪音暴露作为电池？加拿大自由车队案例研究

Voluntary assisted dying (‘VAD’) commenced in Victoria, Australia, in 2019. Drawing on qualitative interviews, we investigate how patients’ and family caregivers’ actions to overcome access barriers may be conceived of as ‘regulatory’. We adopt Julia Black’s definition of regulation as sustained, focused, and intentional action to alter behaviour. Participants performed various actions to overcome access barriers, primarily motivated by a desire to support VAD access for individual patients. However, many participants sought to make the VAD system better for others. Participants perceived their actions improved individual experiences of VAD and sometimes also altered the behaviour of key participants in Victoria’s VAD system or impacted the system more broadly. Patients and family caregivers should have opportunities to be involved in regulation if they wish. However, consideration must be given to addressing VAD access barriers to reduce the burden on patients and family caregivers of having to take action to overcome these barriers.

Ruthie Jeanneret

Eliana Close

Lindy Willmott

Ben P White

‘Regulatory Action’ by Patients and Family Caregivers to Overcome Barriers to Accessing Voluntary Assisted Dying: A Qualitative Study in Victoria, Australia

患者及家庭护理人员为克服自愿安乐死获取障碍的“监管行动”：澳大利亚维多利亚州的一项定性研究

Throughout the West, there has been a surge in clinical diagnoses among people aged under 18 of ‘gender dysphoria’ or ‘gender incongruence’. Those individuals have sought treatment for distress and/or impaired functioning associated with a discrepancy between their sex assigned at birth and their experienced and/or expressed gender identity. A principal medical model for treating minors who are diagnosed with gender dysphoria or gender incongruence is controversial. Described as ‘gender-affirming’ or ‘gender- affirmative’ ‘care’, it can entail puberty blockers, hormone treatment, and sometimes surgical procedures. This article examines various arguments posited in the evolving debate in medical and lay communities about this intervention, and then explores examples of the wide diversity and mutability of legal responses to it in different jurisdictions in the West. The article analyses key issues that are pertinent to developing laws regarding this area of medicine and matters that might be taken into account in doing so.

Gabrielle Wolf

Gender-Affirming Medical Treatment for Minors: International Legal Responses to an Evolving Debate

未成年人性别确认医疗：国际法律对不断发展的辩论的回应

Sensitive course content pervades all courses in a law degree and is one of many diverse and complex factors impacting law student wellbeing. This article defines sensitive course content and examines its effects through the lens of trauma, particularly vicarious and collective trauma. It explores two examples from Australian universities where trauma-informed practices were integrated into the legal curriculum. Incorporating trauma-informed practices offers numerous benefits: it supports the mental wellbeing of law students, enhances their employability and destigmatises conversations around this critical issue. However, implementing these practices in legal education faces challenges, such as the diversity of legal practices, institutional constraints and law school culture. Legal education providers must lead the way in mitigating the impacts of sensitive course content by integrating trauma-informed practices and conducting further research to support law student wellbeing.

Aesha Ziad

Kelley Burton

Supporting Law Student Wellbeing: Integrating Trauma-Informed Practices in Legal Education

支持法律学生福祉：在法律教育中整合创伤知情实践

Abbreviation	UNSWLJ
Journal Impact	1.28
Quartiles(Global)	LAW(Q1)

ISSN	0313-0096, 1839-2881
h-index	10

Publication Information	Publisher: Law School, University of New South Wales，Publishing cycle: ，Journal Type: journal，Open Access Journals: No
Basic data	Year of publication: 2018，Proportion of original research papers: 93.18%，Self Citation Rate:8.30%， Gold OA Rate: 0.00%

The University of New South Wales law journal

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