Volume 21. No. 2

Wednesday, 27 February 2019

MLS SSRN Legal Studies Research Paper Series Image

Melbourne Law School published Volume 21 Number 2 of the University of Melbourne Law School Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Adrienne Stone
Expression (812)

At first glance, the Australian Constitution seems to be an exceptional with respect to freedom of expression. The absence of a provision protecting freedom of expression is just one aspect of a widely noted more general feature – the sparsity of protection for rights. Yet the full picture is considerably more complicated. Freedom of expression has long had a foothold in Australian constitutional law and in 1992 the High Court of Australia developed a doctrine known as ‘the freedom of political communication’ which, to some extent, operates like a guarantee or right of freedom of expression.

This chapter, written for the Oxford Handbook of the Australian Constitution, traces the way in which freedom of expression is recognised in Australian constitutional law with special attention to the freedom of political communication. It will outline the current operation of this doctrine, seeking to identify its major themes. The chapter will also consider the extent to which the freedom of political communication resembles an explicit and generally expressed right of freedom, commonly found in other constitutions.

Christine Parker, Fiona Haines and Laura Boehm
The Promise of Ecological Regulation: The Case of Intensive Meat (813)

Eating less intensive meat is a solution to many problems: to human and ecological health and to the intense cruelty visited upon the millions of intensively bred animals across the globe. This Article outlines the contribution regulation makes to this problem and how it might be part of the solution. It begins by summarizing why intensive meat production generates so many problems that cut across regulatory domains. It then shows how current forms of regulation fail to grapple with the intersecting harms generated by intensive meat, highlighting the need for an ecological makeover for regulation itself. Further, regulation, as an instrumental form of law and policy implementation, neglects the interconnected challenges of the whole system. Regulatory scholarship, in the form of responsive regulation, provides ways to overcome at least some of the social aspects of regulatory failure. Yet the Article shows, drawing on two brief case examples highlighting an instrumental and responsive regulatory approach, that the ecological weakness of regulation is often overlooked. Finally, the Article teases out the characteristics of ecologically responsive regulation that can contribute to lowering meat consumption and then examines nascent regulatory tools and strategies that could be refashioned to encourage a shift towards an ecologically rich and socially resilient future.

Paula O'Brien and Andrew D. Mitchell
On the Bottle: Health Information, Alcohol Labelling and the WTO Technical Barriers to Trade Agreement (814)

Since 2010, the World Health Organization has advocated the use of health information labelling to inform consumers of the health risks related to alcohol consumption. The alcohol industry oscillates between opposing and supporting alcohol labelling. This article reviews the minutes of the meetings of the World Trade Organization’s Committee on Technical Barriers to Trade (TBT) (from 2010 to the present day) to garner unique insights into the specific features of alcohol health information labelling that are opposed by the alcohol industry. The article also identifies and analyses the trade law arguments that are made against these contested labelling measures. These arguments primarily come from the WTO’s TBT Agreement. Our view is that the TBT Agreement will provide little comfort to alcohol exporting members who seek to rely on it to challenge alcohol health labelling measures, such as those discussed in the TBT Committee.

Adrienne Stone
Viewpoint Discrimination, Hate Speech Law and the Double-Sided Nature of Freedom of Speech (815)

This essay written for a Symposium on Hate Speech Bans and Political legitimacy addresses a claim (made by James Weinstein and rejected by Jeremy Waldron) that that hate speech laws can undermine the legitimacy of the legal system as a whole and of particular ‘downstream’ laws, such as laws prohibiting racial discrimination.

The debate between Weinstein and Waldron appears to put aside two often dominant questions: whether hate speech causes harm (the harm question) and whether the power to impose or enforce hate speech law will inevitably be used to protect government interests, favour the powerful and disadvantage the vulnerable (the abuse of power question). Weinstein accepts that hate speech causes certain harms and aims his arguments, for the most part at least, at the narrow kind of law that Waldron wishes to defend. (Laws, like s18(1) of the Public Order Act (UK) that are directed at highly vituperative kinds of bigoted speech).

Leaving these questions to one side sharpens this debate by avoiding the need to engage with the resolve the messy questions of fact. It also raises the stakes: Weinstein defence purports to apply even though the speech protected is worthless and even if a law is well targeted and competently administered law. It apparently yields a very strong defence of freedom of speech.

However, I am not convinced that the question of legitimacy of hate speech laws can be resolved in this way. The argument from political legitimacy illustrates how the values underlying speech can be wielded both for and against the protection of speech, a phenomenon I have elsewhere described as the ‘double-sided’ nature of freedom of speech. Precisely for these reasons, as I have also argued elsewhere, the messy realities to which the harm question and the abuse of power question direct us cannot be easily avoided. Nor can Weinstein so neatly avoid questions as to the nature and worth of hateful speech.

Tania Voon and Hope Johnson
Sustainable Health Food Choices: Dietary Guidelines and International Economic Law (816)

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.