Volume 22. No. 4

Melbourne Law School published Volume 22 Number 4 of the University of Melbourne Law School Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Rosemary Langford
Dystopian Accessorial Liability' or the End of 'Stepping Stones' As We Know It? (882)

In Australia a mode of liability that has been known as ‘stepping stones’ has attracted extensive debate and criticism, partly due to the corporate regulator’s propensity to employ it in actions against directors. Stepping stones liability has traditionally consisted of two elements – a breach of the law by the company and a breach of duty by the relevant director in allowing or not preventing the breach. However, the very recent judgment of the Full Federal Court in Cassimatis v Australian Securities and Investments Commission confirms that ‘stepping stones’ is really just a straightforward application of the statutory duty of care (or other duty) to the facts of each particular case.

Megan Prictor, Sharon Huebner, Harriet Teare, Luke Burchill and Jane Kaye
Australian Aboriginal and Torres Strait Islander Collection of Genetic Heritage: The Legal, Ethical and Practical Considerations of a Dynamic Consent Approach to Decision Making (883)

Dynamic Consent (DC) is both a model and a specific web-based tool that enables clear, granular communication and recording of participant consent choices over time. The DC model enables individuals to know and to decide how personal research information is being used and provides a way in which to exercise legal rights provided in privacy and data protection law. The DC tool is flexible and responsive, enabling legal and ethical requirements in research data sharing to be met and for online health information to be maintained. DC has been used in rare diseases and genomics, to enable people to control and express their preferences regarding their own data. However, DC has never been explored in relationship to historical collections of bioscientific and genetic heritage or to contexts involving Aboriginal and Torres Strait Islander people (First Peoples of Australia).

Anna Dziedzic and Dinesha Samararatne
Women and Constitutions in Action (884)

What is the significance of ‘the woman question’ to our understanding of constitutions in action? Recent work on women and constitution-building has focused on textual provisions for women’s equality and the participation of women in the process of constitution making. In contrast, this Policy Brief focuses on how constitutional governance in practice affects women. By shifting the focus in this way, we hope to respond to a broader range of challenges and opportunities that women encounter in ensuring that constitutional practices and institutions are inclusive of women, represent the interests of women, and respect women’s right to substantive equality.

Rosemary Langford
Insolvent Trading, Charitable Companies and COVID-19 (885)

In light of the challenges caused by COVID-19 for all companies, this article analyses the interaction between temporary insolvent trading relief and directors' duties, with particular focus on directors of Australian charitable companies.

Megan Prictor, Megan A Lewis, Ainsley Newson, Matilda Haas, Sachiko Baba, Hannah Kim, Minori Kokado, Jusaku Minari, Fruzsina Molnár-Gábor, Beverly Yamamoto, Jane Kaye and Harriet Teare
Dynamic Consent: An Evaluation and Reporting Framework (886)

Dynamic consent (DC) is an approach to consent that enables people, through an interactive digital interface, to make granular decisions about their ongoing participation. This approach has been explored within biomedical research, in fields such as biobanking and genomics, where ongoing contact is required with participants. It is posited that DC can enhance decisional autonomy and improve researcher-participant communication. Currently, there is a lack of evidence about the measurable effects of DC-based tools. This paper outlines a framework for DC evaluation and reporting. The paper draws upon the evidence for enhanced modes of informed consent for research as the basis for a logic model. It outlines how future evaluations of DC should be designed to maximise their quality, replicability and relevance based on this framework. Finally, the paper considers best-practice for reporting studies that assess DC, to enable future research and implementation to build upon the emerging evidence base.