Volume 22 No. 1

Melbourne Law School published Volume 22 Number 1 of the University of Melbourne Law School Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Michael Crommelin
The Federal Principle (864)

The Commonwealth of Australia Constitution Act 1900 (UK) provided for the people of the six Australian colonies to be united in ‘a Federal Commonwealth under the name of the Commonwealth of Australia’, a self-governing polity within the British Empire. The existing colonies, already self-governing polities within the Empire, became the ‘Original States’ in the federation.

Cheryl Saunders
Constitution Transformation (865)

This essay explores the extent to which if at all, the very concept of a constitution is undergoing change in the conditions of globalisation that characterise the early decades of the 21st century, to the extent that might be described as transformation. The question is prompted both by familiar manifestations of the interdependence of domestic constitutional and international law and practice and by the interpretation placed on them by some of the literature on global constitutionalism. Some, although by no means all of the literature and the experience on which it draws relate to the extent of transnational influence on the way in which constitutions now are made or changed: constitution transformation in the narrow, or more particular, sense.

Andrew Mitchell and James Munro
No Retreat: An Emerging Principle of Non-Regression from Environmental Protections in International Investment Law (866)

A principle that host States not regress from existing environmental protections in their domestic legal systems to promote foreign investment has quietly begun to establish itself in international investment law in the last decade. With origins in the North American Free Trade Agreement, more than 130 countries now subscribe to this idea in at least one of their international investment agreements. The simplicity of the concept of non-regression and the evident legitimacy of environmental objectives mask deep complexities in measuring levels of environmental protection and identifying reductions in those levels. These complexities are exacerbated by the wide variety of drafting of non-regression clauses, with significant implications for their operation and potential enforcement through investment treaty disputes. Despite the increasing popularity of non-regression clauses as evidenced by an extensive survey of existing treaties, States’ current approaches to these clauses leave major questions unresolved, creating the potential for unintentionally increasing host State liability without necessarily enhancing environmental or economic goals.

Ian Ramsay and Miranda Webster
The Evolution and Consolidation of External Dispute Resolution Schemes in the Financial Sector: From the Banking Ombudsman to the Australian Financial Complaints Authority (867)

The Australian Banking Industry Ombudsman (ABIO) was the first external dispute resolution (EDR) scheme set up and funded by industry members at a national level in Australia. It came into operation in 1990. The ABIO was a significant first step in the development of EDR schemes to resolve disputes between financial service providers and consumers. At one stage there were seven different industry-funded EDR schemes in existence in the financial sector. However, the existence of multiple schemes proved to be problematic. Several of the EDR schemes merged in 2008 to create the Financial Ombudsman Service (FOS), and in November 2018, FOS, the Credit and Investments Ombudsman and the Superannuation Complaints Tribunal were replaced by a single body, the Australian Financial Complaints Authority. This article examines the establishment of the ABIO, outlines the expansion of industry-established EDR schemes operating in the financial sector, and then considers the arguments for the consolidation of the schemes.

Margaret Young
International Adjudication and the Commons (868)

Theories of ‘the commons’ predict human capacity for cooperation and competition over ownerless or commonly-held places or things. The popular conception of the ‘tragedy of the commons’ holds that relentless free-riding leads to resource depletion. Elinor Ostrom disproved the inevitability of tragedy by showing how small-scale communities manage common pool resources. Graduated sanctions and rule enforcement form part of the institutions for collective action. This article is the first to consider how these concepts relate to international courts and tribunals. It includes discussion of the ‘global commons’ outside national jurisdiction (such as the high seas and the deep seabed), but also ascribes as ‘common pool resources’ or ‘global public goods’ the objects of past international litigation: whales, southern bluefin tuna, sea turtles and even freedom from the threat of nuclear weapons. Part of a symposium on ‘the role of international courts in protecting environmental commons’, the article focuses on the International Court of Justice, the International Tribunal for the Law of the Sea and the World Trade Organization. By analyzing legal process as well as underlying rights and obligations, the article brings to the fore the social, cultural and economic conditions that have been at play in international litigation over commons-type scenarios, and reflects upon whether the tribunals have been well-equipped to deal with them. The article’s findings have implications for future engagement by international courts in the ideals and ideas of the commons, and for the framing of shared interests in international law.

Evgenia Bourova, Ian Ramsay and Paul Ali
Limitations of Australia's Legal Hardship Protections for Women with Debt Problems Caused by Economic Abuse (869)

Research on economic abuse has identified multiple ways in which perpetrators use debt to exercise power and control over women in violent relationships. However, there have been few attempts to evaluate consumer credit law’s role in responding to perpetrators coercing or deceiving women into taking on debt in their own names or in joint names. At present, one option for women managing such debt is to negotiate payment arrangements with creditors under the legal protections for Australians in financial hardship. In this article, the authors draw upon focus groups with consumer advocates to examine the extent to which these protections and their implementation by creditors facilitate – or undermine – women’s financial recovery. The authors argue that these protections have limited capacity to assist victims of economic abuse, in the absence of provisions for severing liability for joint debt incurred in the context of gendered dynamics of power and control.