Volume 21. No.10

Melbourne Law School published Volume 21 Number 10 of the University of Melbourne Law School Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Tarunabh Khaitan
The Point of Discrimination Law (858)

This chapter supports the growing philosophical opinion that it is freedom rather than equality which provides a better foundation for discrimination law. What these other freedom-based theories of discrimination lack (or, at least, fail to make sufficiently explicit) is the insight that the freedom we are entitled to also depends on the freedom that others enjoy. In other words, our liberty-interest is relative, because three of the four basic goods that constitute this interest have an essential connection with what others enjoy. Secured negative freedom cannot be enjoyed if there are particularly striking power imbalances between different societal groups. The range of opportunities that is adequate for us to have a flourishing life depends on the range of opportunities it is possible to have, which in turn depends on how much access the better-off people have. Even our self-respect has a relative dimension, inasmuch as it depends on how much respect others show to us, and how successful we believe our lives to be in relation to the success of the lives of others.

Monica Brierley-Hay and Liam Elphick
Riding Towards Inclusion in the Film Industry: Quotas and Special Measures Under Australian Discrimination Law (859)

Diversity has long been a problem in the film industry, whether for actors, directors, or crew members. Various groups are under-represented in film, particularly women, persons with a disability, LGBTI+ persons, and those from diverse racial, cultural and linguistic backgrounds. To address this, Academy Award winner Frances McDormand used her 2018 Oscars acceptance speech to draw attention to inclusion riders. An inclusion rider is a clause that actors can incorporate into their contracts with film companies to require the film company to hire a more diverse range of candidates both on- and off-screen in a way that reflects the demography of a film’s setting. Various actors and film companies have since flagged their plans to implement inclusion riders, yet their lawfulness remains largely unexamined. We consider how Australian discrimination law would apply to inclusion riders, focusing particularly on the ‘special measures’ provisions found in the four federal discrimination Acts. These provisions exempt otherwise unlawful discriminatory acts where they seek to further the opportunities of historically disadvantaged groups, thereby allowing for the use of quotas and other positive action in certain circumstances. We argue that inclusion riders would likely be lawful under these provisions, but that the inconsistency and complexity of special measures provisions in Australia renders further reform necessary in order to encourage and empower actors and film companies to take up inclusion riders.

Katy Barnett
Thorne v Kennedy: A Thorn in the Side of 'Binding Financial Agreements'? (860)

A discussion of the High Court of Australia's recent decision in Thorne v Kennedy with reference to the three vitiating factors discussed by the High Court: duress, undue influence and unconscionable conduct. It is suggested that the High Court left unclear the status of lawful act duress, and the overlap between duress and actual undue influence remains unclear. Moreover, it is also unclear how equitable principles interact with the provisions of the Family Law Act. The significance of independent legal advice and a post-nuptial binding financial agreement in this case is also discussed.

Michael Crommelin
Tenure, Title and Property in Geological Storage of Greenhouse Gas in Australia (861)

The disposal of greenhouse gas by underground storage in geological formations provokes several questions of legal entitlement: to the land in which the formations occur; to the formations which accommodate the stored gas; to the stored gas; to locate these formations; to store gas therein; to deal with these exploration and storage rights, and to protect them. This chapter examines how those questions arise and are resolved, onshore and offshore, in Australia.

Tomer Broude and Inbar Levy
Outcome Bias and Expertise in Investigations under International Humanitarian Law (862)

Many international law decisions are made by individuals, often possessed with expertise, legal or otherwise. We examine individual international humanitarian law (IHL) decision-making, on two-levels: military decisions made ex ante regarding real-time operational questions, under conditions of uncertainty and imperfect information; and subsequent ex post evaluations of the propriety of military decisions, in the context of military investigations regarding legal responsibility with respect to proportionality and reasonableness. IHL requires ex post investigators to consider only information available at the time decisions were made. Through an experimental vignette-study conducted with lay-persons, legal experts and people with field experience, we test whether they are susceptible to cognitive ‘outcome bias’, specifically the extent to which knowledge of operational outcomes, especially regarding incidental civilian harm, influences ex post normative evaluations. Our results demonstrate a general tendency towards outcome bias, somewhat tempered by expertise. Individuals with operational decision-making experience may be less prone to outcome bias than legal experts. We discuss possible implications for the design of military investigations relating to IHL.

Cheryl Saunders
Common Law Constitutionalism under a Codified Constitution (863)

This essay was written to mark the retirement of Dame Sian Elias, as Chief Justice of New Zealand. It examines the meaning and application of common law constitutionalism in common law states where the Constitution is codified. It argues that there are principles and practices associated with the common law that are revealed or assume enhanced significance when a codified constitution is brought into play. These justify inclusion in an extended conception of common law constitutionalism. The essay examines these features at the point of constitution making, in relation to the substance of codified constitutions and through the lens of constitutional interpretation. Most of the distinctive features of common law constitutionalism in this setting are driven by the characteristics of codified constitutions: the sources of legitimacy, the accoutrements of status and the need for integrity over time. These differences are significant for comparative purposes. Equally significantly, however, they need to be understood in moving from uncodified to codified constitutional arrangements. The essay uses Australia as a case study throughout, with the usual disclaimers about the limitations of a single case study in a project of this kind. Australia has enough in common with other common law states with codified constitutions to illustrate the argument at a level of generality. The unusually thin Australian Constitution has one other advantage for present purposes as well; it enables a question to be raised about whether and how theories of common law constitutionalism developed for common law states without codified constitutions can thicken or supplement a codified constitution of the kind that exists in Australia.