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CLR2021-Vol18 2.Pdf Canberra Law Review (2021) 18(1) ii Canberra Law Review The Canberra Law Review is a peer-reviewed law journal published each year by the Canberra Law School at the University of Canberra. It brings together academics, other scholars, legal practitioners, and students within and outside the University. It provides a peer-reviewed open access venue for innovative, cross- disciplinary and creative scholarly articles and commentaries on law and justice. Submissions The editors of the Canberra Law Review seek submissions on aspects of law. We welcome articles relating to theory and practice, and traditional, innovative and cross- disciplinary approaches to law, justice, policy and society. Guidelines • Scholarly articles should be 5,000-14,000 words, case notes 1,500-3,000 words and book reviews 1,000-1,500 words (including references). • Submissions must conform to the 4th edition of the Australian Guide to Legal Citation (AGLC4) and be 12 pt Times New Roman, single-spaced. • Scholarly articles must be accompanied by an abstract of no more than 250 words. • Submissions must not have been previously published in another journal. Submissions should be emailed as MS Office .docx or .doc documents to [email protected]. Peer-Review Scholarly articles are blind peer-reviewed by reviewers. Open Access Consistent with the Canberra Law School’s emphasis on inclusiveness, the Review is open access: an electronic version is available on the University of Canberra website and on the Australasian Legal Information Institute (AustLII) website. ISSN ISSN 1839-2660 (Online) The ISSN for pre-digital (ie print) issues of CLR is 1320-6702. Canberra Law Review (2021) 18(1) iii TABLE OF CONTENTS The Editor iv Introduction to Issue 18(1) Articles Bede Harris 1 Does non-recognition of out-of-State roadworthy certificates breach the freedom of inter-State trade and full faith and credit provisions of the Constitution? Jingjing Qian and John Zeleznikow 18 ‘Who Shares Legal Liability for Road Accidents Caused by Drivers Assisted by Artificial Intelligence Software?’ Sarah Kendall 36 Reconceptualising Reforms To Cross-Examination: Extending The Reliability Revolution Beyond The Forensic Sciences Benedict Sheehy, Widya Tuslian and Luther Lie 60 The Use of International Soft Law for Corporate Social Responsibility Reporting in the Retail Industry: A Study of Four Major Retailers in the Asia-Pacific Tony Meacham 81 ‘100 Years of the Engineers Case – how Australia carved a constitutional path away from Britain’ Neil Samuel Hope 91 The Mystique Of ‘Equitable Subrogation With Respect To Extinguished Common Law Rights’: Time For A New Label – ‘The Equitable Indemnity Principle’ Review Bruce Baer Arnold 111 Catherine Ordway (ed), Restoring Trust in Sport: Corruption Cases and Solutions (Routledge, 2021) Student Section Jennifer Szkiela 115 What does Sports Integrity Australia and enhanced anti-doping capabilities mean for athletes and the privilege of self- incrimination? Canberra Law Review (2021) 18(1) iv INTRODUCTION This issue of Canberra Law Review (the first in 2021) again features articles from Australian and overseas contributors, alongside a review of a major collection on sports law. It comes at a time where courts and other bodies continue to struggle with emerging questions about artificial intelligence, rationality in the administration of non-digital systems, and changing values regarding corporations. Bede Harris, whose excellent Constitutional Reform as a Remedy for Political Disenchantment in Australia (Springer, 2020) will be reviewed in the coming second issue, asks ‘Does non-recognition of out-of-State roadworthy certificates breach the freedom of inter-State trade and full faith and credit provisions of the Constitution?’. Dr Harris offers a persuasive argument about non-recognition as a discriminatory burden of a protectionist kind in a breach of s 92 of the Constitution. He also proposes a new interpretation of the full faith and credit requirement contained in s 118 of the Constitution which would govern instances where one jurisdiction issues a certification as to status relating to a person or thing as a result of the application of a common standard which has been adopted by different jurisdictions. A finding that non-recognition is unconstitutional under either or both of s 92 and s 118 would relieve vehicle owners who already have a certificate issued in one jurisdiction of the burden of having a vehicle re-tested when they seek to register it in another. ‘Who Shares Legal Liability for Road Accidents Caused by Drivers Assisted by Artificial Intelligence Software?’ by Jingjing Qian and John Zeleznikow notes research showing over ninety per cent of road accidents are caused by human error. Artificial Intelligence (AI) has been regarded as a potential solution to resolve road safety concerns but accidents caused by drivers using AI pose new challenges to regulators in identifying legal liability. Conventional road safety regulations and laws respond mainly to the behaviour of human drivers. The authors focus on causality in car accidents and the nature of liability factors instead of the vehicle’s automation level or the new functionality developed by the manufacturers. By developing a Hybrid Liability Assessment Tool to categorize and analyze the causes of accidents occurring when drivers use AI assistance, the article explores the nature of the liability for such car accidents. The article concludes by making recommendations based on modifying the current road safety legal framework. Sarah Kendall’s ‘Reconceptualising Reforms To Cross-Examination: Extending The Reliability Revolution Beyond The Forensic Sciences’ considers the ‘reliability revolution’, ie research challenging the reliability of various forensic science techniques. Her thought-provoking article examines current empirical research on cross-examination methods and argues that the reliability revolution should now be extended to cross- examination to improve the reliability of testimony elicited from witnesses. ‘The Use of International Soft Law for Corporate Social Responsibility Reporting in the Retail Industry: A Study of Four Major Retailers in the Asia-Pacific’ by Benedict Sheehy, Widya Tuslian and Luther Lie examines the reported use of six major international soft law instruments in four multi-national retail enterprises in Asia. The case study method contributes to understanding of these instruments and their aims in the Asia-Pacific region, pertinent because of the increasing importance of soft-law for corporate social responsibility in Asia. Retailers in particular are expected to behave responsibly, provide sustainable products and services to their consumers and persuade or pressure their suppliers to operate Canberra Law Review (2021) 18(1) v sustainably. They are, therefore, in a unique position to disseminate sustainability. Further, because of their significant social and environmental footprints in addition to their size, their participation in international soft law regimes is critical to the regimes’ success. Tony Meacham’s ‘100 Years of the Engineers Case – how Australia carved a constitutional path away from Britain’ considers the High Court’s 1920 landmark decision where that Court’s constitutional judgments broke free from British considerations at the time of the Commonwealth of Australia Constitution Act 1900 (Imp). ‘The Mystique Of ‘Equitable Subrogation With Respect To Extinguished Common Law Rights’: Time For A New Label ‘The Equitable Indemnity Principle’’ by Neil Samuel Hope critiques equitable subrogation. Hope incisively comments that the topic is plagued by poor taxonomy, legal fiction, and a fundamental misconception that Institutional Equity has the capacity to revive extinguished common law rights, which has meant that the endeavour to arrive at settled doctrine has not been achieved. He argues that the law remains to settle upon an appropriate name for the principle under discussion. His article is an attempt to dispel some of the myths about the topic and to introduce some sense of doctrinal certainty. Bruce Baer Arnold’s review of Catherine Ordway (ed), Restoring Trust in Sport: Corruption Cases and Solutions (Routledge, 2021) describes that work as a valuable addition to the literature on sport, regulation, crime and entertainment. Canberra Law Review also includes work by current students and recent graduates, typically a version of their LLB dissertations. This issue of the Review features a version of Jennifer Szkiela’s dissertation ‘What does Sports Integrity Australia and enhanced anti-doping capabilities mean for athletes and the privilege of self-incrimination?’ It explores what Sports Integrity Australia and enhanced anti-doping capabilities mean for athletes and the privilege of self-incrimination. Ms Szkiela argues that is understandable, even admirable, that Australia does not want to merely meet its obligations under the WADC but wants to go above and beyond to eliminate doping from sport. The investigation and prosecution of criminal offences by SIA, however, is not granted by the SIA Act. The focus of Australia’s NADO should be directed to protecting the rights of clean athletes in accordance with the WADC. Although catching doping cheats may fall within the wide ambit of prevention, respect of human rights must come first. Whether by choice, or oversight, Australia is now straying away from collective global values. *** Canberra Law Review (2021) 18(1) vi Does non-recognition of out-of-State roadworthy
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