Volume 23. No. 2

Wednesday, 3 March 2021

MLS SSRN Legal Studies Research Paper Series Image

Melbourne Law School published Volume 23 Number 2 of the University of Melbourne Law School Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Damian Clifford and Jeannie Paterson
Consumer Privacy and Consent: Reform in the Light of Contract and Consumer Protection Law (925)

In its recent Digital Platforms Inquiry — Final Report, the Australian Competition and Consumer Commission (ACCC) made recommendations for the reform of the Privacy Act 1988 (Cth) to provide for better mechanisms for ensuring consumer consent to data collection practices and to the Australian Consumer Law (ACL) to strengthen the protection for consumers against overreaching data collection practices. Such reforms would certainly be timely, given growing concerns about data protection and privacy in the provision of online services to consumers.

Julian R Murphy
Legislating in Language: Indigenous Languages in Parliamentary Debate, Legislation and Statutory Interpretation (926)

There are signs that Australia is beginning a long-overdue process of incorporating Indigenous languages into its parliamentary debates and legislation. These are significant developments in Australian public law which, to date, have attracted insufficient scholarly attention. This article begins the process of teasing out the doctrinal implications of this phenomenon. The article is in four parts, the first two of which describe and normatively defend the trend towards Indigenous language lawmaking in Australia. The third part looks abroad to how other countries facilitate multilingual parliamentary debate and legislation. Finally, the article examines the interpretative questions that multilingual legislation poses for Australian courts. Potential answers to these questions are identified within existing Australian and comparative jurisprudence. However, the ultimate aim of this article is not to make prescriptions but to stimulate further discussion about multilingual legislation, which discussion ought to foreground Indigenous voices.

Paula O'Brien
Warning Labels About Alcohol Consumption and Pregnancy: Moving from Industry Self-Regulation to Law (927)

Alcohol consumption during pregnancy carries known risks to the foetus in the form of foetal alcohol spectrum disorder (‘FASD’). One of the interventions for the prevention of FASD is the application of warning labels to packaged alcoholic beverages. Between 2011 and 2018, the Australian Government allowed the alcohol organisation, DrinkWise, to operate an industry self-regulatory scheme to provide alcohol producers with prototype warnings about drinking during pregnancy. In 2018, the government announced that it would be mandating alcohol and pregnancy warnings through Food Standards Australia New Zealand. This article argues that a proper appraisal of the DrinkWise Labelling Scheme at the outset would have demonstrated its inherent regulatory incapacity to operate as an effective health information policy. The DrinkWise Labelling Scheme is missing two essential elements of functional industry self-regulation: a strong normative framework and mechanisms for norm creation, implementation and enforcement.

Ying Khai Liew
'Unconscionability' and the Case Against Lumping: Three Case Studies (928)

This paper argues that unconscionability provides no good basis for arguments in favour of lumping equitable doctrines in English law. It explores three areas of equity where unconscionability has most strongly divided lumpers and splitters: undue influence and unconscionable bargains; proprietary estoppel and constructive trusts; and the ‘rule in Re Rose’ and the decision in Pennington v Waine. In relation to each discussion, the paper explains how lumpers rely on the idea of unconscionability to argue in favour of merging or expanding those established doctrines, and argues against lumping, by explaining how this distorts a proper understanding of the law.

Anna Dziedzic and Cheryl Saunders
Constitutional Implementation for Sustainable Peace Addendum: Update on the Bougainville case study (929)

This paper provides an Addendum to the first report. It updates the case study and the findings to take account of events to the end of 2020, including the referendum on independence and the Bougainville elections that followed. It foreshadows the inter-governmental consultations on the outcome of the referendum which will get underway in 2021. It also makes some observations on the role of the judiciary in interpreting and applying the constitutional provisions that can be traced to the Bougainville Peace Agreement.

The paper revisits the conceptual problem of the relationship between peace agreements and constitutions. We regard the two sets of instruments as distinct, but accept the need to resolve the challenges that arise when the resolution of conflict requires constitutional change. Our study suggests that one reason for the relative success of constitutional implementation in Bougainville, at least to this point, lay in carefully and explicitly managing the links between the Peace Agreement and the Constitutions of both PNG and Bougainville at the points of peace making and constitution making. Others may be able to learn from this experience.

Margaret Young
Sustainable Oceans, Trade and Fisheries Subsidies (930)

The protection and sustainable use of the world’s oceans are urgent goals. This chapter, written as an encyclopedic entry on environmental law and trade, reviews the role of international norms and institutions in changing production and consumption practices and facilitating improved management. It focuses on trade measures to end illegal, unreported and unregulated (IUU) fishing, the prohibition of harmful fisheries subsidies, and the protection of marine areas. Fulfilling these goals depends in part on the activities of bodies including the United Nations and World Trade Organization, as well as political and legal support for their interaction.

Ying Khai Liew
Making Sense of Agreement-Based Constructive Trusts in the Commercial Context (931)

‘Agreement-based’ constructive trusts have increasingly been applied in the commercial context. Worryingly, they are plagued by fundamental uncertainties over their underlying rationales, ambits, and requirements. Recent cases have revealed the urgency of resolving these uncertainties. This paper demonstrates how sense can be made in this area of law.