Volume 23, No. 1

Tuesday, 5 January 2021

MLS SSRN Legal Studies Research Paper Series Image

Melbourne Law School published Volume 23 Number 1 of the University of Melbourne Law School Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Jason N. E. Varuhas
Evidence, Facts and the Changing Nature of Judicial Review (918)

This paper considers significant changes in the law and practice of evidence and fact-finding in judicial review proceedings, prompted by developments in the substantive law of judicial review, specifically moves towards rights-based adjudication and systemic or structural review. It first appeared on the UK Constitutional Law Blog.

Suzanne Zhou and Jonathan Liberman
Public Health, Intellectual Property, and the Trade and Investment Law Challenges to Australia and Uruguay's Tobacco Packaging Laws (919)

The trade and investment disputes brought against Australia's tobacco plain packaging laws and Uruguay's large graphic health warnings and restrictions on tobacco brand variants are key cases on the relationship between public health and intellectual property. Both cases have been decided in favour of the respondent states, and they are important victories not only for tobacco control but for public health flexibilities in intellectual property agreements more broadly. Key points to take from the jurisprudence include: its confirmation that trademarks do not give trademark owners the right to use those trademarks to market harmful products, its clarification of the scope of intellectual property protections under international investment law, and its findings on the status of the Doha Declaration on the TRIPS Agreement and Public Health and on interpreting the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights coherently with public health more generally.

Paula O'Brien
Missing in Action: The Global Strategy to Reduce the Harmful Use of Alcohol and the WTO (920)

In February 2020, a grave concern with “the ‘slow-moving disaster’ of harmful use of alcohol” led the Executive Board of the World Health Organization (WHO) to decide to develop an “action plan” to implement the WHO’s Global Strategy to Reduce the Harmful Use of Alcohol (Global Strategy).

Adam Lodders and Jeannie Marie Paterson
Scrutinising COVIDSafe: Frameworks for Evaluating Digital Contact Tracing Technologies (921)

Digital technologies are being used to combat the coronavirus disease 2019 (COVID-19) pandemic through a variety of methods, including monitoring compliance with quarantine and contact tracing. These uses of technology are said to promote public health outcomes but risk undermining rights to privacy. In this article we focus on the use of digital technologies for contact tracing, such as the COVIDSafe app used in Australia. We explore the kind of framework that might be used for evaluating the design, deployment and governance of such technologies to ensure they operate in a manner that is proportionate to the ends to be achieved. We conclude that, in addition to issues of privacy, any use of contact tracing technology should address important considerations of efficacy, equity and accountability.

Tess Hardy
Big Brands, Big Responsibilities? An Examination of Franchisor Accountability for Employment Contraventions in the United States and Australia (922)

Big brands such as McDonald’s and 7-Eleven are instantly recognizable. Yet, the challenges faced by franchise workers laboring behind these well-known banners are not nearly as familiar. Until recently, research into the regulation of work in franchises remained on the fringes of mainstream labor law scholarship.

Rosemary Teele Langford
An Integrated Approach to Statutory Interpretation: Directors' Duties in the UK (923)

This chapter outlines the integrated approach taken to statutory interpretation of directors’ duties in the UK in order to highlight how the interaction between case law and the reading of statutes affects the development of the common law. It highlights, and explains the reasons for, the incoherent nature of directors’ duties in Australia. This regime can be contrasted with the more coherent approach adopted in the UK when directors’ duties were codified in the Companies Act 2006. Particular focus is placed on the conflicts and profits rules, with detailed examination of how the law relating to competing directorships has developed in different Commonwealth jurisdictions.

Evgenia Bourova, Ian Ramsay and Paul Ali
Cause to Complain? Consumer Experiences of Internal External Dispute Resolution in the Context of General Insurance (924)

The provision of ‘fair, timely and effective’ mechanisms for the resolution of consumer complaints is ‘a central part’ of the regulatory framework for financial services including general insurance in Australia. Insurers are required to have in place internal dispute resolution (‘IDR’) processes through which policyholders can complain if their insurance claim is subject to delays, or if they are unhappy with its outcome. Insurers must also be members of the recently established Australian Financial Complaints Authority, to which policyholders may escalate complaints that are not resolved through IDR. This article draws upon the findings of a survey of building, home contents and comprehensive car insurance policyholders to shed light on the experiences of consumers who make or escalate complaints in relation to their claims; issues with compliance with the regulatory frameworks governing complaints; and the barriers that can deter consumers from making use of these complaints mechanisms.