Volume 22. No. 2

Melbourne Law School published Volume 22 Number 2 of the University of Melbourne Law School Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Cheryl Saunders
Constitution Making in Asia (870)

This short essay is an introduction to a symposium on Constitution Making in Asia and the Pacific. It seeks to place constitution-making in Asia in the context of the broader global debate. In doing so, it develops the theme of the relationship between the local and the global in constitution making projects. It suggests four sets of factors that deserve consideration in examining the relationship between local and global influences: ownership, implementation, accountability and legitimacy. A final section reflects on the experiences of constitution-making in Asia and the Pacific and the way in which these factors play out in the various case studies.

Joshua Yuvaraj and Rebecca Giblin
Are contracts Enough? An Empirical Study of Author Rights in Australian Publishing Agreements (871)

A majority of the world’s nations grant authors statutory reversion rights: entitlements to reclaim their copyrights in certain circumstances, such as their works becoming unavailable for purchase. In Australia (as in the UK) we have no such universal protections, leaving creator rights to be governed entirely by their contracts with investors. But is this enough? We investigate that question in the book industry context via an exploratory study of publishing contracts sourced from the archive of the Australian Society of Authors. We identify serious deficiencies in the agreements generally as well as the specific provisions for returning rights to authors. Many contracts were inconsistent or otherwise poorly drafted, key terms were commonly missing altogether, and we demonstrate that critical terms evolved very slowly in response to changed industry realities. In response to this new evidence we propose that consideration be given to introducing baseline minimum protections with the aim of improving author incomes, investment opportunities for publishers and access for the public.

Jane Dixon, Caron Beaton-Wells and Jo Paul-Taylor
Consumer-citizens and Competition Policy in the Era of Supermarketisation (872)

There is a burgeoning body of consumer scholarship that identifies a consumer-citizen identity, reconstructing the consumer as a social and political actor and not just an economic actor. In food systems dominated by supermarkets, some hail the coming of the consumer-citizen as an antidote to the power of large retailers. Drawing on an empirical study of the Australian grocery sector, this paper interrogates the claim that consumer-citizenry will fulfil this promise. It emphasises the need for tempering any optimism in this regard, taking account of the impact of socio-economic constraints facing most consumers, and for which the supermarkets must be held in part responsible. The paper explores the role of government in supporting citizen-inspired consumer concerns and argues that the prevailing adherence to a neo-liberal paradigm of managing markets explains why thus far the state has failed in providing this support. Using a focus on competition regulation, the paper concludes that market-related policies need to be sensitive to the social effects of concentration, on inequality in particular, and that in the face of substantial private economic power, faith in self-regulation and self-correcting markets is misplaced.

Jodie Boyd, Ian Ramsay and Paul Ali
'Contrary to the Spirit of the Age': Imprisonment for Debt in Colonial Victoria, 1857–90 (873)

The reintroduction in 1857 of imprisonment for debt in colonial Victoria flew in the face of international momentum for its abolition. In its criminalisation of debt and poverty, the Fellows Act 1857 (Vic) (21 Vict, No 29) also defied the rapid advancement of democratic and egalitarian principles in the fledgling colony. Frequently referred to as ‘gross class legislation’, the law was used unabashedly to target poor small debtors, leaving ‘mercantile men’ with significant debt untroubled by the prospect of a debtors’ gaol. Despite consistent and broad opposition to the Fellows Act, its advocates resisted repeated attempts to abolish or meaningfully amend it. It is argued here that the law, and its survival against the ‘spirit of the age’, can be understood as part of a broader story of conservative resistance to the democratic innovations that threatened the power of the Victorian mercantilist establishment.

Lael K Weis
Legislative Constitutional Baselines (874)

‘Constitutional baselines’ are interpretive tools that are widely used in constitutional reasoning, although often implicit and unarticulated. They provide standards for measure that enable courts to evaluate the adequacy of the state’s provision of constitutionally guaranteed goods. This article identifies constitutional baselines as a distinctive issue in constitutional interpretation, and it examines an important but under-theorised way that the High Court of Australia defines constitutional baselines: namely, by adopting legislatively–defined norms or standards. The best-known example of this is the electoral franchise line of cases: in determining what the constitutional guarantee of representative government requires, the High Court frequently consults Commonwealth electoral legislation. However, while other commentators have observed and criticised this interpretive practice, it has not been properly understood or evaluated. This article clarifies how legislative constitutional baselines function, refines objections to their use, and develops an analytical framework for their evaluation. It ultimately argues that, at least under some circumstances, legislative constitutional baselines are justified because they provide a more plausible and more defensible method of defining constitutional baselines than methods that rely on other sources of constitutional meaning.

Andrew Christie, James Gloster and Sarah Goddard
An Empirical Analysis of 15 Years of Australian Domain Name Disputes (875)

The .au Dispute Resolution Policy (‘auDRP’) creates an online mandatory administrative procedure for resolving disputes about .au domain names that contain another’s trademark. This study is the first – and, to date, the only – detailed quantitative analysis of every one of the 470 determinations made in the procedure’s first 15 years of operation. By identifying the characteristics of each case and its decision-maker, and by analysing which of those are associated with particular outcomes, we provide previously-unknown information about the factors that contribute to a case’s success, and about the procedure’s integrity. We find that the rate at which cases succeed has not changed over time, and does not differ between the two service providers or between the most prolific panelists. When there is a statistically significant difference in the success rate, it is associated with a difference in the characteristics of the individual case – namely, that the complaint is based solely on a trademark rather than on a name alone or together with a trademark, or on a registered rather than an unregistered trademark, or that the complaint is not defended by the respondent. Importantly, these findings support the conclusion that, contrary to some commonly expressed opinions, the auDRP produces outcomes that are consistent and fair.