Volume 21. No. 4

Monday, 15 July 2019

MLS SSRN Legal Studies Research Paper Series Image

Melbourne Law School published Volume 21 Number 4 of the University of Melbourne Law School Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Cheryl Saunders
Challenges of Multi-Level Constitutionalism (823)

The focus of this paper is multi-level government within the state, defined to include a range of forms of significantly devolved government, of which federation is one. The argument was sparked by the apparent paradox that, while multi-level government is now widely regarded as a desirable feature of a system of government, for many good reasons that include its potential to deepen democracy, multi-level systems tend to become increasingly centralised over time, detracting from the advantages they offer. The paper suggests that a partial explanation lies in prevailing conceptions of constitutionalism, almost all of which were developed by reference to the assumptions of a unitary state. It argues instead for a concept of constitutionalism adapted to the objectives and circumstances of multi-level government, in a compound form that might be described as multi-level constitutionalism. Multi-level constitutionalism would not dictate the degree of devolution, but it would support its adoption and operation once in place. Implementation of multi-level constitutionalism in turn demands cultural change on the part of the principal actors, to give it practical effect. The paper explores what this might require of political elites in pursuing intergovernmental arrangements and of courts, interpreting and applying the governing constitution. It concludes with still-tentative suggestions about the extent to which a suitably modified version of multi-level constitutionalism could apply above the level of the state, to regional and international arrangements.

Sean Cooney
The 'Labour Relationship' in Chinese Jurisprudence: Mistranslating Definitional Barrier to Labour Protection (824)

The construction of the ‘employment relationship’ in the People’s Republic of China (PRC) merits close analysis for several compelling reasons. China’s huge urban workforce of more than 400 million means that PRC labour law regulates more workers than any other jurisdiction. The country’s global clout grows daily; China’s gross domestic product is already the world’s largest based on purchasing power parity and will surpass the United States in nominal GDP over the next decade. This domestic economic power is increasingly projected internationally, as international investments, now spearheaded by the ‘belt and road initiative’, reach across the globe. The regulatory consequences of this influence for other countries, including on labour, are already being analysed and debated.

Andrew Roberts
The Frailties of Human Memory the Accused's Right to Accurate Procedures (825)

It is often claimed that the criminal justice system has not taken sufficient account of the findings of experimental studies that have revealed much about the limitations and vulnerabilities of human memory and cognition. Indeed some have suggested that those responsible for the administration of justice are generally disinterested in what psychologists have to say about the nature of memory and its frailties, and unwilling to consider the adequacy of legal rules and practices in light of what is known about these matters.

Hilary Charlesworth
Freedom of Expression in Asia (826)

Prefigurative politics is a form of activism harnessing theories of social change. In essence, it means a group’s adoption of structures and styles of reasoning that the group is promoting, a modelling of the desired political and social outcomes; the aphorism ‘be the change you want to see’ sums up the practice of prefiguration. The term ‘prefigurative tradition’ first emerged in the 1970s in the context of Marxist methods, describing them as a movement embodying ‘within the ongoing political practice … those forms of social relations, decision-making, culture, and human experience that are the ultimate goal.’ The idea was that Marxist prefigurative politics would undermine ‘the division of labor between everyday life and political activity.’ The women’s camp at Greenham Common, established in 1981 to protest against the presence of Cruise missiles at a US Air Force base in the United Kingdom, was a prefigurative venture in challenging traditional family structures. Another example is the Occupy! movement in 2011, which set out to establish public spaces in the heart of large urban areas where free food, medical care and education were available.

Jason Bosland
Restraining 'Extraneous' Prejudicial Publicity: Victoria and New South Wales Compared (827)

This article explores the powers available to courts in Victoria and New South Wales to restrain the media publication of ‘extraneous’ prejudicial material – that is, material that is derived from sources extraneous to court proceedings rather than from the proceedings themselves. Three sources of power are explored: the power in equity to grant injunctions to restrain threatened sub judice contempt, the inherent jurisdiction of superior courts and, finally, statutory powers in New South Wales under the Court Suppression and Non-publications Orders Act 2010 (NSW) and in Victoria under the Open Courts Act 2013 (Vic). It argues that the approach of the Victorian courts is much broader in terms of the scope and application of orders, which potentially explains why orders restraining extraneous material are more commonly made in Victoria than in New South Wales. It further argues that the Victorian approach presents some significant consequences for publishers.