Volume 22. No. 5

Melbourne Law School published Volume 22 Number 5 of the University of Melbourne Law School Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

William Partlett
Russia's 2020 Constitutional Amendments: A Comparative Perspective (887)

This article will place the 2020 amendments to the Russian Constitution in comparative perspective. These amendments have been justified as a way of strengthening the Russian state in order to tackle emerging new problems. Comparatively, these amendments follow the recent ‘populist’ trend toward state-building grounded on constitutional centralism, anti-institutionalism, and protectionism. This populist agenda draws on many of the same ideas found in socialist state-building that contributed to the collapse of the Soviet Union. For modern Russia, therefore, these reforms further entrench this problematic socialist legacy and are therefore likely to undermine the creation of an effective, stable, and strong Russian state.

Rosemary Langford and Ian Ramsay
The Contours and Content of the ‘Creditors’ Interests Duty’ (888)

It is well established in a number of Commonwealth jurisdictions that company directors are subject to a duty to consider the interests of creditors as the company nears insolvency. The precise contours of this duty are, however, indeterminate. Particular questions surround when the duty arises and what it requires of directors. Courts in the UK and Australia have provided different answers to these questions. This article critically examines jurisprudence from the UK and Australia and concludes that the position adopted by the England and Wales Court of Appeal is preferable.

Jeannie Paterson and Elise Bant
Intuitive Synthesis and Fidelity to Purpose? Judicial Interpretation of the Discretionary Power to Award Civil Penalties under the Australian Consumer Law (889)

The fertility of judicial techniques of statutory interpretation is uniquely evidenced in the development of the jurisprudence supporting the award of civil pecuniary penalties for specific contraventions of the Australian Consumer Law (ACL) and equivalent provisions in the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act).

Carolyn Evans and Adrienne Stone
Open Minds: Academic Freedom and Freedom of Speech (890)

This preface to Open Minds: Academic Freedom and Freedom of Speech (2020). It provides context to the book and outlines its core claims.

Carolyn Evans, Adrienne Stone and Jade Roberts
Academic Freedom (891)

In current debates and historical ones, the concepts of freedom of speech and academic freedom are much bandied about. They are often used interchangeably or grouped together under the rather nebulous heading of ‘intellectual freedom’. There is a reason why these two ideas are so prominent. Each is central to the very idea of a university. But against the common usage, we think that there is an important distinction between the two ideas. Academic freedom arises from and serves to enable the university’s role in advancing and disseminating knowledge. Academic freedom will not protect all expressive activity in a university, much of which bears little relation to its research and teaching. But where academic freedom does apply, its protection is strong, allowing robust challenge to orthodox ideas even if the challenge is a minority view and even if it is unpopular or offensive. It also requires that students are provided with an opportunity to learn and sufficient expressive freedom to do so and it brings with it a freedom for academics to criticise university governance. Other kinds of expressive activity on campus – including political protest, non-academic discussion, and the activities of visiting speakers – are protected by the distinct values of a free speech principle.

Ying Liew
Birmingham v Renfrew (1937): The Foundations of the Mutual Wills Doctrine (892)

This paper discusses the facts of Birmingham v. Renfrew and the impact of the decision on the development of the mutual wills doctrine in Anglo-Australian law. Much like laying the secure foundations of a building, Birmingham has supplied three central ‘pillars’ upon which the doctrine has gradually been built upon, and upon which the future development of the doctrine can securely be based. The three ‘pillars’ are: the interaction between ‘contract’ and equity, the meaning of ‘contract’, and the rationale of the mutual wills doctrine.