Legal Studies Research Paper Series Vol 20, No. 8

Melbourne Law School published Volume 20 Number 8 of the University of Melbourne Law School Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Helen Anderson and Tess Hardy
Superannuation Guarantee Contributors as a Tax: The Case for Reincarnation over Reform (800)

The superannuation guarantee charge, which aims to ensure that employers pay compulsory superannuation for their employees, is collected as a tax. This method of collection has advantages because it covers a range of workplaces and types of businesses, including where the workers are outside of the conventional notion of employment. However, despite this, unpaid superannuation guarantee obligations remain a significant concern for government, superannuation funds, trade unions and workers themselves. Attempts to improve recovery — both legislative and procedural — have arguably been tinkering around the edges of a fundamentally misconceptualised scheme. This article suggests an alternative approach which utilises the collection mechanisms of the Fair Work Act 2009 (Cth) and the worker-focused Fair Work Ombudsman as the primary agency overseeing superannuation collection. This would see superannuation recast as “deferred wages”, recoverable in the same way as other employee entitlements. While a further referral of powers from the states to the federal government would be required — or perhaps a constitutional amendment — the article argues that reincarnating the superannuation guarantee in this way could significantly improve recovery for the benefit of workers.

Belinda Fehlberg, Lisa Sarmas and Jenny Morgan
The Perils and Pitfalls of Formal Equality in Australian Family Law Reform (801)

In this paper, we identify the influence of formal equality—and more specifically, formal gender equality (that is, treating men and women the same)—in central areas of major Australian family law reform over the past 20 years. Given the influence of formal equality and our concerns regarding this trend, we consider whether equality-based arguments should be abandoned entirely, at least in the family law context, and explore alternative approaches that could reframe the debate.

Elise Bant
Statute and Common Law: Interaction and Influence in Light o f the Principle of Coherence (802)

This article seeks to lay the groundwork for further discussion and analysis within the broader Australian legal community of the interaction between common law (here including equitable doctrines) and statute in the Australian private law context. Its thesis is that the principle of coherence requires us to take much more seriously than we have done to date the interplay between statute and common law as part of our everyday mode of legal reasoning when addressing private law disputes. Indeed, it arguably requires that statutes and general law must, so far as is possible, be interpreted and applied in such a way as to form part of a coherent private law as a whole.

Paul Ali, Steve Kourabas, Cosima McRae and Ian Ramsay
Consumer Leases and Indigenous Consumers (803)

Consumer leases offer low-income consumers the option to hire household items that they do not have the money to purchase upfront. They are marketed by consumer lease providers as a cheap way to purchase important household items. However, recent studies illustrate that the price ultimately paid to hire goods under a consumer lease contract will generally exceed the retail value of the goods hired and that it is the most expensive form of finance available. Despite this, consumers are often persuaded to enter into consumer lease contracts as a result of predatory practices engaged in by providers. These predatory practices are most effective with low-income consumers who may be experiencing financial difficulties and who live in remote areas that make it difficult to shop for alternative goods or seek financial and legal advice.

Shireen Morris and Adrienne Stone
Before the High Court: Abortion Protests and the Limits of Freedom of Political Communication: Clubb v Edwards; Preston v Avery (804)

Two cases currently before the High Court of Australia — Clubb v Edwards and Preston v Avery — raise the validity of state laws that seek to prohibit certain communication and protest outside abortion clinics. The laws are justified on the basis that they protect the ‘safety’, ‘dignity’, ‘well-being’ and ‘privacy’ of those seeking abortion services. The cases therefore pose the question of how these values are accommodated within the Australian system of representative and responsible government.

Evgenia Bourova, Ian Ramsay and Paul Ali
The Experience of Financial Hardship in Australia: Causes, Impacts and Coping Strategies (805)

This article outlines the findings of Australia’s first large-scale study on the experiences of people who have recently been unable to pay a debt when it fell due. The study builds upon empirical research on the causes and impacts of financial hardship in the United Kingdom and the United States, and examines the coping strategies that debtors employ to deal with their predicament. The study shows that although an overall increase in economic insecurity since the 1980s – together with rising living costs and rapid growth in household debt – have created a situation in which financial hardship can happen to almost anyone, people who are already in a position of socio-economic disadvantage are especially at risk. Debtors at all levels of income in the study favour individualistic strategies for reducing their expenditure – for some, to the point of foregoing essential living needs. However, for debtors on social security incomes, financial hardship has particularly serious consequences, impacting negatively on health, relationships and social inclusion, and undermining their ability to afford necessities such as food, heating and medical care. Consumer protections have been enacted to allow Australians in financial hardship to negotiate payment plans and other arrangements (sometimes known as “hardship variations”) with creditors including banks, utility and telecommunications companies. Consumers struggling to pay utility bills may also be eligible for additional assistance through a company “hardship program”. These protections aim to enable debtors to avoid enforcement action, energy disconnection, and in the most serious cases, bankruptcy. However, only a minority of debtors surveyed are actually using these protections. This article undertakes an analysis of these findings in the context of the literature on economic insecurity, disadvantage and the growing financialization of everyday life in Australia and overseas.