Volume 22. No. 3

Wednesday, 13 May 2020

MLS SSRN Legal Studies Research Paper Series Image

Melbourne Law School published Volume 22 Number 3 of the University of Melbourne Law School Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

William Partlett
Engineers' Problematic Comparative Legacy (876)

The majority opinion in the Engineers case has long occupied the unusual position as one of the most heavily criticized but also influential cases in Australian constitutional law. Leading commentators such as Geoffrey Sawer have written that it is “the worst written and organized in Australian judicial history.” But, despite this criticism, Engineers remains one of the most heavily cited and influential cases in Australian constitutional law.

Rosemary Langford
Pursuit Revisited (877)

Some Australian cases concerning company directors have required pursuit of a conflict (rather than real sensible possibility of conflict) in order to found breach of the duty to avoid conflicts. It has been shown elsewhere that real sensible possibility of conflict is more suitable as a baseline standard. However, it is possible that the concept of pursuit may explain or organize categories of cases and requirements relating to conflicted directors. This article critically analyses the suitability of adopting pursuit as an organizing principle in the context of competing directorships, situations in which positive requirements are imposed on conflicted directors, actual conflicts (in the sense used by Millett LJ in Bristol and West Building Society v Mothew) and statutory duties concerning improper use of position or of information. Relevant concepts employed by the courts in relation to conflicted directors are also arranged along a spectrum to bring clarity to the analysis.

Jacob Flynn, Rebecca Giblin and Francois Petitjen
Consumer-citizens and Competition Policy in the Era of Supermarketisation (878)

The United States (‘US’) extended most copyright terms by 20 years in 1998, and has since exported that extension via ‘free trade’ agreements to countries including Australia and Canada. A key justification for the longer term was the claim that exclusive rights are necessary to encourage publishers to invest in making older works available — and that, unless such rights were granted, they would go underused. This study empirically tests this ‘underuse hypothesis’ by investigating the relative availability of ebooks to public libraries across Australia, New Zealand, the US and Canada. We find that books are actually less available where they are under copyright than where they are in the public domain, and that commercial publishers seem undeterred from investing in works even where others are competing to supply the same titles. We also find that exclusive rights do not appear to trigger investment in works that have low commercial demand, with books from 59% of the ‘culturally valuable’ authors we sampled unavailable in any jurisdiction, regardless of copyright status. This provides new evidence of how even the shortest copyright terms can outlast works’ commercial value, even where cultural value remains. Further, we find that works are priced much higher where they are under copyright than where they in the public domain, and these differences typically far exceed what would be paid to authors or their heirs. Thus, one effect of extending copyrights from life + 50 to life + 70 is that libraries are obliged to pay higher prices in exchange for worse access.

This is the first published study to test the underuse hypothesis outside the US, and the first to analyse comparative availability of identical works across jurisdictions where their copyright status differs. It adds to the evidence that the underuse hypothesis is not borne out by real world practice. Nonetheless, countries are still being obliged to enact extended terms as a cost of trade access. We argue that such nations should explore alternative ways of dividing up those rights to better achieve copyright’s fundamental aims of rewarding authors and promoting widespread access to knowledge and culture.

Tarunabh Khaitan
The Indian Supreme Court's Identity Crisis: A Constitutional Court or a Court of Appeals? (879)

This article presents an empirical analysis of the Indian Supreme Court’s discretionary appellate jurisdiction (called the ‘special leave jurisdiction’ or SLP). Based on an analysis of 1100 randomly selected cases spread over 11 years, it argues that the ever-expanding docket under this supposedly exceptional jurisdiction has squeezed the Court’s ability to function as a constitutional court. It shows that the admissibility of special leave petitions has a statistically significant relationship with the presence of a ‘senior advocate’ during the admissions hearing. The paper concludes with some reform proposals. In particular, it stresses the need for an institutional separation of the appellate and constitutional functions of the Supreme Court, either as two separate courts, or as two divisions within a single Supreme Court. It also makes certain suggestions towards reducing or eliminating the potential docket-distorting role of senior advocates over admission decisions — either by taking admission decisions on civil SLPs largely based on written briefs alone or barring senior advocates from appearing in oral admission hearings for civil SLPs entirely.

Cheryl Saunders
Constitutionalism in Australia (880)

This paper, which is written for a collection of essays on the history of Australian law, explores the history of Australian constitutionalism. To this end, it necessarily develops a definition of constitutionalism that fits the sometimes-distinctive Australian approach but that also is plausible from the standpoint of global theory and practice. To assist to frame the historical story, the paper identifies a series of continuing influences on Australian constitutionalism, including the sources on which it draws; the implications of the long Indigenous relationship with country; the nature and duration of colonial status from 1788; and the early impetus towards electoral democracy. Against that background, the paper traces the historical development of written Constitutions in Australia; of the role of popular sovereignty, including conceptions of the people; of the character and extent of constitutional limits on public power; and of judicial review.

Emma Jukic and Margaret Young
Australia and International Environmental Law in 2019 (881)

2019 was Australia’s hottest year on record. Catastrophic bushfires destroyed land and homes and caused the death of an estimated billion animals. This short report provides an overview on laws, policies, cases and developments in Australia during 2019 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 subnational level on issues ranging from climate change, biodiversity protection, marine and coastal matters, world heritage and trade impacts. It also highlights legal developments with respect to public participation (including for traditional owners) 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 transboundary environmental problems or cooperation have been discussed.