Volume 21. No. 9

Melbourne Law School published Volume 21 Number 9 of the University of Melbourne Law School Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Rosemary Langford and Ian Ramsay
The Reach of Constitutional Conflicts Provisions: How do Companies Contract out of the General Law Duties? (852)

To what extent do companies insert provisions in their constitutions that modify the duties imposed on company directors? This question is of particular significance in relation to conflicts of interest. In this research note, the authors endeavour to answer this question by examining the constitutions of 100 companies listed on the Australian Securities Exchange - 50 large capitalisation companies and 50 small capitalisation companies. Only one of the companies in the sample (a small capitalisation company) did not have a provision in its constitution that modified the duty of directors to avoid unauthorised conflicts of interest. The authors divided the relevant constitutional provisions into six categories (for example, provisions allowing directors to contract with the company subject to disclosure by the director of the interest and provisions allowing directors to hold an office or a place of profit with the company subject to disclosure by the director of the interest) to identify (a) which types of constitutional provisions were most common; (b) whether the type of constitutional provision differed according to the size of the company; and (c) whether the constitutional provisions required authorisation of the conflict by other directors or only disclosure of the interest by the director.

Vivi Tan
Online Dispute Resolution for Small Civil Claims in Victoria: A New Paradigm in Civil Justice (853)

This article seeks to explore some of the implications of integrating information and communications technology into judicial processes to resolve small civil claims. It argues that, as ODR moves from individual private-sector initiatives to widespread public sector institutionalisation, governance and value questions will need to be seriously considered. This is because questions regarding the appropriateness of the use of certain ODR systems in the resolution of small claims and consumer disputes persist, especially in relation to the use of systems which are fully autonomous. For example, how are fundamental due process requirements to be balanced against the economic constraints of resolving low value disputes? What are the limits to the evolution of civil justice to make it more accessible? It is argued that, while ODR holds vast potential for increasing access to justice, attention needs to be given to the dispute system design to ensure that it achieves that goal and does not result in the erosion of fundamental values of civil justice, including accessibility, transparency, legal validity and accountability.

Tarun Khaitan
Indirect Discrimination (854)

Indirect discrimination involves an apparently neutral practice or policy which puts members of a protected group at a disproportionate disadvantage compared with members of a cognate group, and which fails to satisfy a means-end justification test. Law has played a critical role in recognizing and conceptualizing the phenomenon. The conceptual distinction between direct and indirect discrimination, and their relative moral badness remains controversial in legal and philosophical literature. Some have even questioned whether indirect discrimination even counts as ‘discrimination’, and others have asked whether it is wrongful at any rate (the two categories of interrogators do not necessarily overlap). These questions have led to renewed attempts to explore the moral badness of indirect discrimination, and the legitimacy of the legal regulation of the phenomenon.

Helen Anderson
A New Approach to Corporate Structures Involved in Labour Law Breaches (855)

Employers may sometimes deliberately choose to structure their business operations in a way that puts their assets beyond the reach of employee claims. The legally liable company may use liquidation to frustrate recovery action by the Fair Work Ombudsman. This article urges those engaged in law reform to look beyond the form of these arrangements and instead to focus on their substance.

Matthew Bell
Are Australia's Cities Out-Growing Its Construction Legislation? (856)

This article examines the way in which legislative regulation seeks to enhance consumer protection in relation to the procurement of residential construction work. Its focus is upon reforms to the statutory regime for such protection in Victoria which were enacted during 2016–17. These reforms are primarily directed towards reducing the incidence of defective work through the tightening of ‘quality assurance’ provisions, such as ensuring that work is carried out by qualified practitioners, and of ‘safety net’ measures such as conciliation processes to avoid the escalation of disputes. The article analyses these reforms by reference to identified problems relating to defective residential construction work. These range from high-profile incidents such as the 2014 cladding-related fire at the Lacrosse Apartments in Melbourne (and the fire, with similar causes yet tragically more disastrous consequences, at the Grenfell Tower in London in 2017), through to more mundane — yet, frequently occurring — problems such as poor workmanship and behaviours. The article concludes that the Victorian reforms are clearly directed towards many of these identified problems. It cautions, however, that the success of the reforms in contributing to an effective consumer protection regime may be limited because other factors contributing to the widespread incidence of defects remain unaddressed. These factors include gaps such as the non-prescriptive nature of many of the regulatory requirements, and the limited capacity of project participants to assimilate the detailed requirements of the regime, and for regulators to enforce it.

Evgenia Bourova, Ian Ramsay and Paul Ali
'It's Easy to Say Don't Sign Anything': Debt Problems Among Recent Migrants from a Non-English Speaking Background (857)

Legal protections are in place to allow Australians in financial hardship to avoid negative credit ratings and bankruptcy by negotiating alternative payment arrangements with creditors. This article draws upon focus groups with consumer advocates to investigate whether these protections are meeting the needs of recent migrants from a non-English-speaking background. The authors argue that recent migrants receive inadequate support with the financial aspects of settlement in Australia, creating barriers to the resolution of debt problems. They recommend measures that could reduce the vulnerability of recent migrants in consumer transactions and assist them to resolve debt problems before they escalate.