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The University of Queensland Law Journal The University of Queensland Law Journal Volume 40(1) 2021 ARTICLES ‘Part of the Future’: Family Law, Children’s Interests and Remote Proceedings in Australia during COVID-19 Felicity Bell Corrective Justice and Redress under Australia’s Racial Vilification Laws Bill Swannie State Consent to the Provision of Humanitarian Assistance in Non-International Armed Conflicts Jessica Schaffer Sexual Assault on Campus: Not Just a Police Matter — A Response to Y v University of Queensland Clare Foran Judicial Activism and Constitutional (Mis)Interpretation: A Critical Appraisal Johnny M Sakr and Augusto Zimmermann BOOK REVIEWS Legal Transplants in East Asia and Oceania Tony Angelo Legal History Matters: From Magna Carta to the Clinton Impeachment Warren Swain THE UNIVERSITY OF QUEENSLAND LAW JOURNAL JOURNAL EDITORS RICK BIGWOOD AND IAIN FIELD This issue may be cited as (2021) 40(1) University of Queensland Law Journal ISSN 0083–4041 Copyright of articles published in The University of Queensland Law Journal is vested jointly in the UQLJ and the contributor. Apart from any fair dealing for the purposes of private study, research, criticism or review, no part may be reproduced without written permission. However, authors may upload their own published work to online and university repositories, or republish their own work as part of a research thesis, without prior approval from the editors provided due acknowledgment is given to the UQLJ. The University of Queensland Law Journal Volume 40 2021 Number 1 EDITORIAL BOARD Professor Andrew Burrows, University of Oxford Professor Ian Dennis, University College London Professor Eilis Ferran, University of Cambridge The Hon Paul Finn, formerly a Judge of the Federal Court of Australia Professor John Finnis, University of Oxford Professor Denis Galligan, University of Oxford Professor Jeffrey Goldsworthy, Monash University The Hon Dyson Heydon, formerly a Justice of the High Court of Australia Professor David Ibbetson, University of Cambridge Professor Vaughan Lowe, University of Oxford Professor John Phillips, King’s College London Professor Charles Rickett, Auckland University of Technology Professor Jane Stapleton, Master, Christ’s College Cambridge Professor Sarah Worthington, University of Cambridge Professor Reinhard Zimmermann, Max Planck Institute for Comparative and International Private Law, Hamburg INFORMATION FOR CONTRIBUTORS The University of Queensland Law Journal is published by The University of Queensland Law School. The Journal is issued three times a year. It aims to publish significant works of scholarship that make an original contribution to different fields of law. This includes all areas of domestic, international and comparative law, as well as jurisprudence, legal history and the intersection of law with other disciplines. The Journal is controlled by an Editorial Board. Every article, comment and case note submitted for publication is subjected to a formal process of blind peer review. A manuscript should not ordinarily exceed 10,000 words and must be an unpublished work not submitted for publication elsewhere. Submissions should be typed, doublespaced and on A4-sized paper. Contributors must supply a copy of their manuscript in Microsoft Word format. Style and referencing of submissions should conform to the current edition of the Australian Guide to Legal Citation, available electronically at <https://law.unimelb.edu.au/mulr/aglc>. Submissions are dealt with on a rolling basis and should be submitted online at <https://journal.law.uq.edu.au>. General queries about submissions may submitted by email to: Professor Rick Bigwood Dr Iain Field [email protected] [email protected] Or by ordinary mail to: The Editors The University of Queensland Law Journal Committee Law School The University of Queensland Forgan Smith Building University Drive St Lucia Queensland 4072 Australia. SUBSCRIPTION RATES Australia Institutions/Libraries/Individuals AUD$105.00 Overseas Airmail AUD$165.00 Back issues per single issue (Aust) AUD$60.00 Subscriptions, orders and inquiries by email to: [email protected] Or by ordinary mail to: Law School The University of Queensland Forgan Smith Building University Drive St Lucia Queensland 4072 Australia. The University of Queensland Law Journal Volume 40 2021 Number 1 CONTENTS ARTICLES ‘Part of the Future’: Family Law, Children’s Interests and Remote Proceedings in Australia during COVID-19 Felicity Bell 1 Corrective Justice and Redress under Australia’s Racial Vilification Laws Bill Swannie 27 State Consent to the Provision of Humanitarian Assistance in Non- International Armed Conflicts Jessica Schaffer 67 Sexual Assault on Campus: Not Just a Police Matter — A Response to Y v University of Queensland Clare Foran 91 Judicial Activism and Constitutional (Mis)Interpretation: A Critical Appraisal Johnny M Sakr and Augusto Zimmermann 119 BOOK REVIEWS Legal Transplants in East Asia and Oceania Tony Angelo 149 Legal History Matters: From Magna Carta to the Clinton Impeachment Warren Swain 154 ‘PART OF THE FUTURE’: FAMILY LAW, CHILDREN’S INTERESTS AND REMOTE PROCEEDINGS IN AUSTRALIA DURING COVID-19 FELICITY BELL* In March 2020, the family law courts, like other Australian courts, moved to hearing proceedings ‘remotely’, by phone, audio-visual link or software platform. This article examines the particular circumstances of family law cases that likely impact on whether it is appropriate for remote procedures to be used. Giving context to these themes, the article reports on a survey of Australian federal judicial officers about their experiences of conducting family law proceedings remotely. I INTRODUCTION The rapid expansion of ‘remote’ proceedings to family law matters during the COVID-19 pandemic1 was met with reactions both hopeful and disapproving.2 As essential services,3 the family law courts, like all Australian courts, remained operational but transitioned to remote hearings (those conducted by telephone or audio-visual communication platforms) in March/April 2020. The Family Court of Australia and the Federal Circuit Court of Australia — collectively ‘the family law courts’ — hear ‘private’ family law disputes pursuant to the Family Law Act 1975 (Cth) (‘FLA’). The state-based Children’s Courts, which exercise jurisdiction * Research Fellow, Future of Law and Innovation in the Profession Research Stream, UNSW Law. The author thanks Professor Michael Legg and the anonymous reviewer for their helpful comments. 1 See World Health Organisation, ‘Coronavirus Disease (COVID-19) Pandemic’ <https://www.who. int/emergencies/diseases/novel-coronavirus-2019>. 2 For example, an order made by telephone to remove a two-day-old baby from its mother was referred to as ‘horribly cruel’: Anna Khoo, ‘Remote Hearings for Family Courts “Horribly Cruel”’, BBC News (online, 4 June 2020) <https://www.bbc.com/news/uk-england-52854168>; cf Kate Allman, ‘Lunch with Registrar Brett McGrath’, Law Society Journal (online, 10 June 2020) <https://lsj.com.au/articles/skype-with-family-court-national-covid-19-registrar-brett- mcgrath/> (referring to the ‘opportunity’ presented by the pandemic). 3 Michael Legg, ‘The COVID-19 Pandemic and Courts as Essential Services’ (2020) 94(7) Australian Law Journal 479. 2 Family Law and Remote Proceedings During COVID-19 2021 over care and protection matters, also moved to limit face-to-face hearings.4 Typically, this was in line with procedures adopted by the Magistrates Courts (or Local Courts in New South Wales), of which the Children’s Courts form a part.5 In a statement made on 26 March, the Chief Justice of the Family Court announced: Judges, Registrars and staff are committed to providing access to justice when called upon to do so. This includes conducting hearings both via videoconferencing through the use of Microsoft Teams or other platforms, or by telephone. The Courts are also conducting mediations electronically and through other safe means.6 Michael Legg has explained that ‘[t]he use of video conferencing [by courts] can be traced back to at least 1997 and is now used extensively in Australian courts, although usually referred to as an audio visual link’.7 Originally, audio-visual link (‘AVL’) technology was developed specifically for the courts,8 and was predominantly used to connect one participant in a remote location to the courtroom, where the main proceedings were occurring face-to-face.9 With the onset of the pandemic, the family law courts turned also to the use of third-party software platforms such as Zoom and Microsoft Teams.10 It was later reported that more than 80 per cent of the family law courts’ work was conducted by electronic means during the period from March to May 2020.11 Similar changes, in terms of a rapid move to entirely electronic hearings, occurred in comparable jurisdictions such as England and Wales and the United States of America. In mid- 4 See, eg, Children’s Court of New South Wales, ‘Public Notice of Response to Covid-19 Pandemic No 6’ (9 July 2020); Jacqueline So, ‘COVID-19 and Australian Courts and Legal Bodies Updates: 27 April’, Australasian Lawyer (26 April 2020) <https://www.thelawyermag.com/au/news/general/ covid-19-and-australian-courts-and-legal-bodies-updates-27-april/220698>. 5 Children’s Court of New South Wales (n 4). 6 Family Court of Australia and Federal Circuit Court of Australia, ‘Statement from the Hon Will Alstergren — Parenting Orders and COVID-19’ (26 March 2020) <http://www.familycourt.gov.au/ wps/wcm/connect/fcoaweb/about/news/mr260320>. 7 Michael Legg, ‘The COVID-19 Pandemic, the Courts and Online Hearings: Maintaining Open Justice, Procedural Fairness and Impartiality’ (2021) 49 Federal Law Review (forthcoming); available at SSRN <https://ssrn.com/abstract=3681165> 4. 8 Ibid, citing, eg, Supreme Court of New South Wales, The Virtual Courtroom — Practitioner’s Fact Sheet (Version 1, 23 March 2020). 9 Bruce M Smyth et al, ‘COVID-19 in Australia: Impacts on Separated Families, Family Law Professionals, and Family Courts’ (2020) 58(4) Family Court Review 1022, 1036 n 9. 10 Zoom <https://zoom.us/>; Microsoft Teams <https://www.microsoft.com/en-au/microsoft- 365/microsoft-teams/group-chat-software>.
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