Volume 22, No. 9

Melbourne Law School published Volume 22 Number 9 of the University of Melbourne Law School Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Andrew D. Mitchell and Paula O'Brien
If One Thai Bottle Should Accidentally Fall: Health Information, Alcohol Labelling and International Investment Law (911)

This article considers the issues that would arise in a dispute under an international investment agreement about two innovative, public health alcohol labelling policies pursued by Thailand. One measure proposes graphic health warnings on alcoholic beverages. The other measure places extensive restrictions on the words and images that producers can use on alcoholic beverage labels. We focus on the consistency of these measures with the obligations of fair and equitable treatment and indirect expropriation. We place particular emphasis on the evidence that would likely be needed to defend these measures, including the areas where the science is somewhat tentative and might therefore pose problems for ‘first-mover’ States like Thailand. We conclude that there is a good chance that the warnings measure would be found compatible with investment law obligations. However, some aspects of the marketing measure are more vulnerable to findings of inconsistency.

Alex Jane and Jeannie Paterson
Frustratingly Unclear? The Interplay Between Common Law, Statute and the ACL in Assessing Consumer Rights in a Time of Crisis (912)

The Citizenship (Amendment) Act, 2019 is unconstitutional for a range of reasons including unlawful discrimination on the grounds of religion and origin, breach of constitutional protections of equal religious freedom and inconsistency with the secular commitments of the constitutional settlement. This paper will argue that the Act is unconstitutional for further, equally significant, reasons. The equality provisions of the Constitution, particularly Article 14, proscribe legislation that is arbitrary as well as legislation that subordinates. The Citizenship (Amendment Act) 2019 is unconstitutional because it is arbitrary and subordinating. The tests for arbitrariness and subordination are currently unclear. So after offering some background to the Act, this paper articulates a test for arbitrariness and subordination, and demonstrates how the Act is unconstitutional when measured against these tests.

Susan Kneebone and Audrey Macklin
Resettlement (913)

Resettlement is one of the three ‘durable solutions’ developed as a response to state responsibilities for refugee protection under the 1951 Refugee Convention. This chapter surveys historical antecedents, and explains the shift from group-based to individualized selection. Unlike the other two durable solutions (local integration and repatriation), which derive directly from non-refoulement/non-discrimination obligations (Refugee Convention Arts 31, 33) resettlement occurs outside the Convention, is not underwritten by legal obligation, and remains in the realm of humanitarian discretion. We explore two implications of resettlement’s discretionary character: First, it permeates the structure of the UNHCR regime, the operation of national programs, and the relationship between refugees seeking resettlement and actors engaged in selection. Refugees play almost no active role in resettlement processes or decisions. Secondly, to the extent that states view their Convention obligations as an impingement on national sovereignty, states may present resettled refugees as preferable, more deserving, and as an alternative to asylum seekers.

Rosemary Teele Langford and Ian Ramsay
The 'Creditors Interests Duty': When Does It Arise and What Does It Require? (914)

Creditors—particularly unsecured creditors—are vulnerable when a company becomes insolvent. A number of mechanisms have evolved to protect unsecured creditors, one of which is the duty of directors to consider (or act in) the interests of creditors when the company approaches insolvency, now contained in s.172(3) of the Companies Act 2006 (UK). This duty, dating back to the 1976 decision of the High Court of Australia in Walker v Wimborne (1976) 137 C.L.R. 1, has required directors to consider the interests of creditors as the company approaches insolvency. The contours of this duty are, however, nebulous. A number of questions arise. First, at what point does the duty arise? Second, what does it require of directors—is it consideration of creditors’ interests, balancing the interests of creditors and shareholders, or prioritizing (or even acting in) creditors’ interests? In this research note the authors discuss the judgment of the Court of Appeal of England and Wales in BTI 2014 LLC v Sequana S.A. [2019] EWCA Civ 112 in which the court considered these two questions.

Tess Hardy
Working for the Brand: The Regulation of Employment in Franchise Systems in Australia (915)

In the past five years or so, there has been a never-ending stream of investigations and inquiries into so-called ‘wage theft’ in franchise systems in Australia. This article seeks to go beyond these public accounts by considering key legislative provisions and recent case law which directly relates to the quality of franchise work and the regulatory behaviour of both franchisees and franchisors. In particular, the article considers three critical issues in this context: 1) the legal classification of franchisees under the Fair Work Act 2009 (Cth) (‘FW Act’), including their possible employment status; 2) the application of collective bargaining arrangements to franchise networks; and 3) the ascription of liability for contravention of the civil remedy provisions of the FW Act, including 2017 reforms expressly directed at franchise relationships. This analysis reveals that while the regulation of work and employment in franchise networks has attracted much attention, it remains uncertain in many key respects and continues to be in a state of great flux.

Anna Chapman
Part 3-1, Adverse Action and Equality (916)

This article examines the extent to which the ‘adverse action’ provisions in Part 3-1 of the Fair Work Act 2009 (Cth) provide effective protection in relation to two central, but as yet unexplored, issues of equality: reasonable accommodation in relation to attributes including disability and family or carer’s responsibilities, and sexual harassment. It concludes that Part 3-1 is deficient in relation to both these matters, and requires legislative amendment.

Lloyd Freeburn and Ian Ramsay
Green Bonds: Legal and Policy Issues (917)

The market for green bonds has grown rapidly in recent years. This has resulted in increased attention on legal and policy issues associated with green bonds. These issues are the focus of this article. The article first describes key aspects of the green bond market including the nature and role of green bonds. It then discusses the main features of green bonds and the green bond market, including their benefits, cost and the role of green bond standards. The final section of the article examines selected issues, including various aspects relating to ‘greenwashing’ – the practice of falsely attributing environmentally positive credentials to a bond claimed to be ‘green’. Other issues discussed include pressures to relax green bond standards arising from demand for green bonds outstripping supply, and the position applying in cases of ‘green defaults’ – where the green promises made in relation to a bond are not fulfilled.