Volume 21. No. 3

Melbourne Law School published Volume 21 Number 3 of the University of Melbourne Law School Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Susan Kneebone and Antje Missbach
The Human Rights Implications of Australian and Indonesian Anti-Smuggling Laws (817)

Australia-Indonesia cooperation on anti-smuggling measures dates from the mid-1990s when joint policing activities and cooperation on preventing smuggling began between Australia and Indonesia (Connery, Sambhi, & McKenzie, 2014a; Connery, Sambhi, & McKenzie, 2014b). In this introduction we place the issue of smuggling in the context of responses to global refugee movements and explain Australia’s interest and involvement in framing an anti-smuggling as a ‘crim migation’ response. In the next section we will describe that developing bilateral relationship in order to show how it focused on preventing the movement of asylum seekers who were framed as illegal migrants. In the second half of the paper, we examine the legislative response of each country and its human rights impacts.

Ian Ramsay
A History of the Corporations and Markets Advisory Committee and its Predecessors (818)

From 1983 until the abolition of the Corporations and Markets Advisory Committee (CAMAC) in 2018, there existed an independent body to provide advice to the Australian government on matters of corporate law reform. The abolition of CAMAC was controversial. The purpose of this paper is to provide a history of CAMAC and its predecessors. These law reform bodies published many reports and their influence on corporate law reform has been significant. Yet no one has yet provided a history. A key part of the paper is consideration of the debates leading up to abolition of CAMAC. An examination of these debates demonstrates how the government made this decision in the face of very strong opposition from organisations representing business, shareholders and various professions including the Australian Institute of Company Directors, the Australian Council of Superannuation Investors, the Governance Institute of Australia, the Law Council of Australia, the two major accounting bodies, the Australian Restructuring Insolvency & Turnaround Association and the Corporate Law Teachers Association. In the opinion of the author, the decision to abolish CAMAC has resulted in a weakened law reform process.

Christine Parker and Fiona Haines
An Ecological Approach to Regulatory Studies (819)

Regulatory studies has been mainly occupied with addressing the social and economic crises of contemporary capitalism largely through instrumentally and responsively rational approaches. This paper asks how regulatory studies scholarship can better respond to the ecological crisis now facing our world and our governance systems alongside social and economic crises. Instrumentally rational regulatory approaches see human ecological impact as an externality or market failure. Socio legal approaches to regulatory studies challenged and developed the instrumentally rational approach by emphasizing the need to attend to the social and political aspects of regulation using a responsively rational approach. This paper proposes the need for a third big shift towards an ecologically rational approach to regulatory studies that better comprehends our embeddedness and interconnectedness within ecological systems. Our suggested approach is not alone in arguing for strong limits to be placed on ecologically damaging activity but an ecologically rational approach also calls for an understanding of how multiple, diverse ways of sustainable being can intersect with and challenge current regulatory regimes dominated by an instrumentally rational approach.

Adrienne Stone
Freedom of Expression in Asia (820)

Freedom of expression is widely protected in Asian constitutions in keeping with its global status as a near universal tenet of modern constitutionalism. In many respects, the protection of freedom of expression in Asian constitutions takes a familiar form. Its textual and doctrinal manifestations draw upon, and resemble, the law of freedom of expression seen in other constitutions. However, when it comes to matters of substance differences abound. Just as in the rest of the world, in Asia differing views on freedom of expression are evident, even as between closely related constitutional systems. Indeed, the diversity of approaches to freedom of speech in the region makes out the claim that there is no distinctively Asian form of constitutionalism, though certain common themes are evident.

Emma Jukić and Margaret Young
Australia and International Environmental Law in 2018 (821)

This paper reports on laws, policies, cases and developments in Australia during 2018 that are or may become relevant to international environmental law. It is prepared as a Country/Region Report to be published in the Yearbook of International Environmental Law. The report includes developments at the national and sub-national level on issues ranging from climate change, biodiversity protection, marine and coastal matters, world heritage and trade impacts. It also includes developments with respect to public participation and access to information on environmental matters. Emphasis is given to the adoption of national laws and regulations implementing international agreements, reservations concerning international agreements, court decisions on environmental matters and other cases where trans-boundary environmental problems or cooperation have been discussed.

Lev Bromberg, Ian Ramsay and Paul Ali
The Vulnerability of Older Australians in Bankruptcy: Insights from an Empirical Study (822)

This article presents the results of the first empirical study focused on older Australians in bankruptcy. Our study — based on the examination of a large and unique dataset obtained by the authors from the bankruptcy regulator — provides a valuable insight into the severe financial challenges faced by many older Australians. Our analysis provides insights into the most significant causes of bankruptcy for older Australians as well as some possible explanations for their financial vulnerability. Our findings include that older Australians comprise an increasing proportion of those in bankruptcy and they are far more likely to cite excessive credit as the cause of their bankruptcy compared to younger and middle-aged bankrupts. We also find that the key salient features of older Australians in bankruptcy are their very high credit card debts, particularly in light of their low incomes and modest levels of assets. While older Australians tend to own real estate (such as their own home) and can be described as being ‘asset rich’, we observe that only a very small proportion of older Australians in bankruptcy own real estate.