Volume 23. No. 3

Melbourne Law School published Volume 23 Number 3 of the University of Melbourne Law School Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Paula O'Brien
Reducing the Power of the Alcohol Industry in Trade and Investment Agreement Negotiations Through Improved Global Governance of Alcohol (932)

The power of the alcohol industry pervades the global governance of alcohol. The influence of the industry is seen in trade and investment treaty negotiations, operating through direct and indirect means. Curbing the influence of the industry is vital to improving the treatment of health issues generally and in trade and investment policy particularly. The World Health Organization has an opportunity to start to rein in the power of the industry with its current work on drafting an ‘action plan’ for 2022-2030 to implement the Global Strategy of the Harmful Use of Alcohol. The WHO working paper, however, proposes inadequate controls on alcohol industry influence. The WHO proposes ‘dialogue’ with the industry and allows the industry to take a role with government in public health labelling of alcohol. The public’s health will suffer if the WHO does not take a firmer stand against the industry in the ‘action plan’.

Ying Khai Liew
Explaining Assignments of Arbitration Agreements (933)

The case law and literature to date have struggled to locate the rationale for the assignability of arbitration agreements. While different justifications have been proffered, each of them rests on questionable premises. This has given rise to a host of uncertainties over the rules which apply in practice. This paper proposes that a satisfactory rationale can be found in the “acceptance principle”. This principle indicates, first, that arbitration agreements which are not actual burdens can be assigned, and second, that the assignability of arbitration agreements is grounded in the assignee’s acceptance in the form of non-disclaimer of the assignment. Bringing the acceptance principle to the fore not only provides a theoretically sound justification for the assignability of arbitration agreements; it also suggests how the practical uncertainties in this area of law can be resolved satisfactorily.

Alysia Blackham
Why Do Employment Age Discrimination Cases Fail? An Analysis of Australian Case Law (934)

Employment age discrimination cases are notoriously unsuccessful in Australia.While it is arguable that most strong cases are settled through conciliation, serious questions remain: are those cases that proceed to the courts particularly weak? Or are there procedural or substantive legal hurdles that operate as barriers to the success of claims? As the first rigorous study of age discrimination case law across all Australian jurisdictions, this article evaluates these two questions, drawing on employment age discrimination case law at federal, state and territory level up to 2017. This article interrogates and maps, both qualitatively and quantitatively, potential legal barriers to age discrimination claims. It offers original and innovative insights into the cases that proceed to court, and why they fail. It argues that while some cases may be weak, there appear to be procedural and substantive hurdles that limit the success of age discrimination cases. This article offers compelling evidence of the need for legal reform, or for a more sympathetic interpretation of existing statutes by the courts, if individual enforcement is to be used as a means of addressing age discrimination.

Lucinda O'Brien, Malcolm Anderson and Ian Ramsay
The Geography of Bankruptcy in Australia (935)

This study analyzes a unique data set to explore geographic variations in bankruptcy across Australia, drawing upon United States research that points to striking differences between urban and rural bankruptcies. The U.S. research finds that rural debtors enter bankruptcy in much more severe financial distress than their urban counterparts. The present study draws upon data obtained from the Australian Financial Security Authority, as well as data gathered by the Australian Bureau of Statistics. It finds that, compared with debtors in regional areas, debtors in major cities earn higher incomes, are more likely to be employed and more likely to cite the "excessive use of credit," rather than unemployment, as the cause of their financial problems. In most respects, however, it finds that differences between Australian bankruptcies in urban and non-urban locations are neither consistent nor pronounced. It concludes that broad generalizations about financial hardship in regional areas cannot do justice to the complex geography of bankruptcy in Australia. In this sense, the study poses a contrast to the U.S. research, which identifies stark differences between urban and rural debtors. It offers a nuanced account, one that links bankruptcy rates to localized factors such as housing prices and the impact of specific industries, such as mining.

Ying Khai Liew
Justifying Anglo-American Trusts Law (936)

Is the existence of trusts law within Anglo-American law justified? The literature to date does not provide a satisfactory answer. Situating the doctrinal features of trusts law within the liberal tradition of political morality, this paper suggests that trusts law is justified because it enhances personal autonomy in a unique way. It is comprehensively autonomy-enhancing, with express, constructive, and resulting trusts each playing a unique role in achieving this aim. Thus, the law provides a facility for property owners to unilaterally deal with their own property (express trusts), allows individuals the freedom to enlist others in their pursuit of their goals (some constructive trusts), and ensures that only conclusive choices have long-lasting legal effects (other constructive trusts and resulting trusts).

Colin Campbell and Dale Smith
The Grounding Requirement for Direct Discrimination (937)

In order for an alleged discriminator to be found liable for direct discrimination in the United Kingdom under the Equality Act 2010, the treatment they accorded the complainant must have been “because of” the complainant’s possession of a protected characteristic (such as race or sex). We shall refer to this as the “grounding requirement” for direct discrimination. In this article, we critique the two main approaches that the House of Lords, and then the Supreme Court, have taken towards the grounding requirement, and offer an alternative, which we call the “reasoning-oriented” approach. Pursuant to this approach, the grounding requirement is satisfied if the complainant’s possession of a protected characteristic featured in the alleged discriminator’s reasoning in support of the treatment they accorded to the complainant. We argue that the reasoning-oriented approach overcomes the difficulties with existing approaches. We also distinguish this approach from similar approaches to understanding the grounding requirement. Finally, we address the objection that our preferred approach cannot account for unconscious discrimination.

Andrew Godwin, Steve  Kourabas and Ian Ramsay
Financial Crisis Management Under the Twin Peaks Model of Financial Regulation – Australia and the UK Compared (938)

This chapter explores the operation of the Twin Peaks model of financial regulation in the context of financial crisis management and compares the model in Australia with the model in the UK. The comparison reveals significant differences in terms of each jurisdiction’s approach to financial crisis management. In Australia, the legislative framework does not make specific reference to financial crisis management and essentially involves collective responsibility on the part of the regulators for managing a financial crisis. Further, financial stability is generally addressed through microprudential regulation. The framework in the UK, on the other hand, contains detailed provision as to ‘who is in charge of what, and when’ and vests primacy responsibility for financial crisis management in the Bank of England. Each approach has its advantages and disadvantages. The Australian approach is heavily dependent on having the right culture of coordination and, some might argue, has not yet been fully put to the test. By comparison, the UK approach provides an overarching framework for macroprudential regulation, under which systemic financial stability is elevated as a primary regulatory objective and mechanisms are in place to ensure that this objective is achieved.