Volume 21 No. 1

Melbourne Law School published Volume 21 Number 1 of the University of Melbourne Law School Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Ian Ramsay and Corinne Tan
Social Impact Bonds in Australia (806)

Social impact bonds are a recent innovation but the number of issued bonds is increasing as investors, governments, providers of social services that can be funded by the proceeds of these bonds and others focus on the advantages of this type of investment. In this article the authors: (a) define social impact bonds; (b) discuss some of the benefits and challenges associated with these bonds; (c) provide examples of social impact bonds in Australia, the United Kingdom and the United States; (d) discuss the transaction structure for social impact bonds; and (e) consider legal issues related to disclosure to potential investors.

Adrienne Stone
Judicial Reasoning (807)

‘Constitutional reasoning’ refers to the explanation of, and justification given for, the application of constitutional principles to specific circumstances. In common law systems, constitutional reasoning is most commonly understood as judicial reasoning and in Australia its focus is usually the Constitution of the Commonwealth (the text enacted by the Parliament at Westminster as s 9 of the Commonwealth of Australia Constitution Act 1900 (UK) and adopted by the people of the Australian colonies voting at referendum). Although, not all constitutional reasoning takes this form, this essay written for the Oxford Companion of he Australian Constitution focuses on the narrower conception of constitutional reasoning as judicial reasoning. As it will show, judicial constitutional reasoning in Australia is firmly eclectic, routinely deploying a variety of ‘methods’ (sometimes described as ‘modalities’) of interpretation. Despite the confidence with which these methods can be identified, the interplay between them and their application in particular cases remains highly complex and contested. In its final part, the chapter will turn to consider circumstances in which there is, or has been, considerable disagreement (within the High Court or amongst scholars of the Constitution) about constitutional interpretation.

Graeme Austin
'This is a Complex Issue': A Few More Questions about Fair Use (808)

Taking the lead from the government’s comment that the scope of copyright exceptions is a “complex issue”, this article raises three questions that could benefit from further discussion during deliberations on the Productivity Commission’s recommendation that a US-style fair use standard be incorporated into Australian copyright law. First, it asks whether Australian courts would derive much guidance from US case law, given the doctrinal uncertainty that exists in US fair use jurisprudence. Second, it questions whether an Australian version of fair use would necessarily be applied in cases involving new technological uses of copyright protected works, rather than the production of new works of authorship. Third, it asks whether sufficient attention has been given in the fair use debate to the incentives needed to create functioning markets for copyright-protected works.

Christine Parker and Hope Johnson
Sustainable Health Food Choices: The Promise of 'Holistic' Dietary Guidelines as a National and International Policy Springboard (809)

A healthy diet is generally a sustainable diet. This point is illustrated in the large body of work exploring the interconnections between public health nutrition and environmental issues associated with food choices. Unhealthy diets and their contribution to diet-related noncommunicable diseases (NCDs) are receiving growing attention from international and national policy-makers. Dietary guidelines that inform consumers about food choices and that shape policy actions to enable choices in line with the guidelines are foundational to both national and international responses to diet-related NCDs. The purpose of this paper is to argue for holistic dietary guidelines as part of national and international policy responses to diet-related NCDs. Holistic dietary guidelines simultaneously address health and environmental sustainability to address common causes and harness synergistic solutions. They are based on evidence, and free of conflicts of interest. Moreover, they act as a policy springboard for effective regulatory action to change the food environment and not just as an education tool. Holistic dietary guidelines raise potential concerns under international trade and investment law, for example, to the extent that such guidelines promote local products as a means of supporting both nutritional and environmental health. These issues will be examined in more depth in a second paper in this special issue that follows on from this one.

Yvette Maker, Jeannie Paterson, Anna Arstein-Kerslake, Bernadette McSherry and Lisa Brophy
From Safety Nets to Support Networks: Beyond 'Vulnerability' in Protection for Consumers with Cognitive Disabilities (810)

This article considers the significance of the obligations in the United Nations Convention on the Rights of Persons with Disabilities (‘CRPD’) for consumer protection law and policy. The current legal response to consumers who require additional decision-making support is primarily focused on mechanisms to release consumers classified as ‘vulnerable’ from transactions tainted by concerns about a lack of genuine consent. While these legal responses provide an important safety net of protection against predatory and exploitative behaviour, they are limited in their ability to encourage social participation and equal access to goods and services for consumers with cognitive disabilities. We argue that the CRPD requires an approach to consumer protection that provides more meaningful support for consumers with cognitive disabilities and make suggestions about what this support might entail in terms of changes to both the legislative regime and contracting practices.

Bert-Jaap Koops, Bryce Newell, Andy Roberts, Ivan Škorvánek and Maša Galič
The Reasonableness of Remaining Unobserved: A Comparative Analysis of Visual Surveillance and Voyeurism in Criminal Law (811)

The criminalization of offensive, privacy‐intrusive behavior is an important form of privacy protection. However, few studies exist of visual observation in criminal law. We address this gap by researching when nonconsensual visual observation is deemed harmful enough to trigger criminal sanctions, and on what basis the law construes the “reasonableness of remaining unobserved,” through a nine‐country comparative study. We distinguish between voyeurism‐centric approaches (focusing largely on nudity and sex) and broader, intrusion‐centric approaches (such as observation inside closed spaces). Both approaches explicitly or implicitly reflect “reasonable” privacy expectations, listing criteria for situations in which people can reasonably expect to remain unobserved or unrecorded. We present a framework for criminalizing non-consensual visual observation, encompassing factors of technology use, place, subject matter, and surreptitiousness, supplemented by factors of intent, identifiability, and counter‐indicators to prevent over‐criminalization. This framework is relevant for protecting visual aspects of privacy in view of individuals' underlying autonomy interests.