Faculty Research Seminar Series

Melbourne Law School's Faculty Research Seminar Series is a place to present and discuss work-in-progress, promising arguments and early drafts to interested staff, graduate researchers and visitors

In Semester 2, 2021 seminars will be organised and hosted by Dr Scott Stephenson and Associate Professor Tatiana Cutts.

The seminars are held weekly on Mondays during semester from 1.00pm - 2.00pm.

The presenter will speak for about 30 minutes, followed by time for questions.

2021 Semester 2 Program

  • 9 August 2021 - Miranda Stewart and Dan Halliday

    Major Grants Seminar: Sharing the Wealth:
    Tax and Justice in the Slow Growth Era (ARC Discovery Project DP210100924), 2021-2024.
    This project aims to address fundamental problems of injustice in taxation emerging in the transition to a slow growth economy in Australia and globally. The project aims to develop a new theoretical framework that responds to growing wealth inequality in Australia's longer-lived and aging population, in the context of changing economic and demographic conditions for justice and efficiency of the tax system. This project brings perspectives from philosophy, political economy and law to refresh 20th century theories of tax justice for 21st century economic and political challenges, as wages stagnate and economic growth slows. The project will apply the results of this philosophical inquiry, with a detailed analysis of comparative tax law and policy, to develop specific recommendations for tax reform in Australia and the United States, with relevance to comparable developed countries around the world. It aims to present reform proposals justified by a new approach to tax justice for income, consumption and wealth taxation, with the aim of contributing to policy development and enriching public debate on tax justice. Chief Investigators in the Project are: Professor Miranda Stewart (MLS), Associate Professor Dan Halliday (UM Philosophy), Professor Emeritus Geoffrey Brennan (ANU Philosophy/Political Ecnonomy), Professor Liam Murphy (NYU Law), Professor Miranda Fleischer (Uni San Diego Law). The commencement date of the project is 1 October 2021.

  • 16 August 2021 - Kirsty Gover

    Do settler-state borders apply to Indigenous people?

    In 2020 the Australian High Court held that non-citizen Aboriginal Australians could not be ‘aliens’ and so could not be deported (Love v Commonwealth). Earlier this year, the Canadian Supreme Court held that non-citizen Indigenous Canadians could exercise Aboriginal rights on their traditional territory (R v Desautel). Both cases confirm something akin to a ‘right to remain’, but neither deals directly with a ‘right of entry’, leaving questions to be answered about what happens at the border. Could these cases point to the emergence of something like an Indigenous-specific ‘right of return’ to traditional lands? Do they recognise the authority of Indigenous law on membership?

  • 23 August 2021 - Helen Fraser

    Language in Justice: Introducing a significant law reform project requiring input from both law and linguistics

    Law and linguistics share a concern with language, and both rightly claim expertise in this domain. However, the nature of their expertise is very different. This means that lawyers and linguists sometimes feel they understand one another’s fields, when in fact there are significant misconceptions in both directions. Today’s presentation canvasses a serious threat to justice arising from this mutual misconception.

    The topic is covert recordings used as evidence in criminal trials. When these are indistinct, the law allows a police transcript to assist the court in hearing the content. Of course, the law is well aware that police opinions might be unreliable, and procedures are in place to safeguard juries from being influenced by misleading transcripts.

    The problem is that these safeguards are ineffective – both in practice, as shown via multiple case studies; and in principle, as shown by long-established findings of linguistic science.

    The presentation briefly outlines the problem, with examples, then moves on to consider the solution. The aim is to engage the attention of MLS colleagues for what we in the Research Hub for Language in Forensic Evidence think is a particularly interesting and challenging law reform project, requiring input from both law and linguistics.

  • 30 August 2021 - Rebecca Giblin, Joshua Yuvaraj and Daniel Russo-Batterham

    US Copyright Termination Notices 1977-2020: Applying Computational Methods to Create New Datasets

    In this paper we introduce new empirical research into one of US copyright law’s most hotly-debated sections: the copyright termination provisions. In the US, creators can terminate their copyright assignments, usually after 35 years, even if their contracts say otherwise. Congress introduced these laws to counteract situations where authors would sign away their copyright for very little and not share in the subsequent windfall those works might generate.

    Despite fierce debates around the effectiveness of these provisions, there’s little empirical research showing how they are being used, which makes it difficult to tell whether they’re doing the job they were designed for. We fill this gap with new datasets, built on data from the publicly accessible (but difficult to navigate and use) Copyright Office Catalog. In this presentation we present some of our key results and showcase the computational methods we used to generate and analyse the data, in collaboration with the Melbourne Data Analytics Platform. These include data scraping and dataframe manipulation in the Python programming language, and are applicable to datasets of varying sizes. As well as contributing to ongoing global debates about how new author termination rights might help get them paid and reclaim lost culture, this research highlights the possibilities of further empirical legal research and skills development when collaborating with MDAP.

  • 13 September 2021 - Jason Varuhas

    The High Court's Role in Private Law Claims Against Government: Upholding Rights or Enabling Government?

    This seminar will address three recent important decisions of the High Court of Australia which involve private law claims against public actors: Smethurst v Commissioner of Police (trespass claim for injunction for return of information unlawfully obtained by police); Lewis v ACT (damages claim against sentencing board for false imprisonment); Roy v O'Neill (trespass claim against police for warrantless entry onto law). The seminar will introduce these cases and reflect on the balance struck by the High Court in each case between individual rights and facilitating government action, which has overwhelmingly been in favour of the latter. The seminar will reflect on broader themes that emerge from these decisions including in relation the High Court's judicial methodology, specifically issues relating to treatment of precedent, transparency in reasoning, and the role of normative reasoning, and how the Court's decision-making fits with the Court's own conception of the judicial role in the separation of powers and commitments to incrementalism.

  • 27 September 2021 - Lulu Weis

    Legislative Constitutional Obligations

    In this seminar Associate Professor Weis  will present some of my current research on legislative constitutional obligations.  This research focuses on alternative formulations of conventional constitutional rights as duties to enact legislation for the realisation of social values and considers the jurisprudential issues that these provisions present, particularly where such duties are incapable of direct judicial enforcement.  The main focus of the presentation will be a forthcoming chapter for a research handbook on constitutional interpretation that examines judicial approaches to a prominent example of this kind of provision: constitutional directive principles.  The chapter explains some of the unique jurisprudential challenges that directive principles present, and surveys the various approaches that courts have used to give them interpretive effect: both directly (through the interpretation and application of directive principles themselves) and indirectly (through the interpretation and application of legislation implementing directive principles).

    In presenting this work, Associate Professor Weis will offer some broader reflections on the challenges that this topic has presented for research generally, and for the handbook genre in particular.  She will also draw together themes from her wider body of work on this topic, including the extent to which legislation is a permissible source of constitutional meaning, and theorising the role of the legislature in  relation to constitutionally mandated legislation.

  • 4 October 2021 - Sundhya Pahuja with Hilary Charlesworth and Christine Parker

    The Corporate Challenge to Democracy: Harnessing International Law
    In this seminar, Hilary Charlesworth and Christine Parker will engage in conversation with Sundhya Pahuja about her new project on Global Corporations and International Law, recently awarded an ARC Laureate Fellowship to begin next year.  The research program of the Laureate is aimed at understanding and addressing the rising power of global corporations by investigating the extent to which international law may contribute to the problem, as well as offer the key to potential solutions. The stated aims of the project are to examine the role of international law in enabling global corporate power, to identify the ways in which international law and institutions can be reformed to limit that power, and to create the world-leading research program and infrastructure on which a more balanced relationship between states and global corporations can be based.
    Christine Parker and Hilary Charlesworth were Sundhya’s grant mentors.  This conversation will range from the substance of the project to crafting of the application.

  • 11 October 2021 - Jianlin Chen

    The Differentiated Religion in the Constitutional Right to Religious Freedom: A Case Study of Religious Fraud Regulation in China, Taiwan and Hong Kong
    This chapter is part of a monograph that examines the law, politics and economics of religious fraud regulation in China, Taiwan and Hong Kong. This chapter first identifies and compares the underlying conception of false religions that drives the respective religious fraud regulation. This chapter then analyzes the constitutionality of these state interventions and proposes alternatives for state interventions that are unconstitutional. Finally, this chapter highlights the perceived legal benefit of a religious fraud designation and contextualizes religious fraud regulation with other disparate treatment of religions.

  • 18 October 2021 - Kristen Rundle

    Revisiting the Rule of Law: the Cambridge Element project
    If the mere sight of the title of this session leaves you with a sinking feeling, a sudden onset headache, or an overwhelming urge to flee, this final Faculty Research Seminar for 2021 is for you.

    There is no paper to read (beyond the draft Prologue), but there is for those interested a discussion to be had about what it is like to teach and write about law in an era in which – for a range of perfectly sound reasons – no one wants to go near the idea of ‘the rule of law’.

    In the seminar I will provide a brief introduction to the commission I have been completing for the new CUP Cambridge Elements project. The aim of the Elements project is to produce short ‘books’ (20,000-30,000 words) on a range of subjects across multiple disciplines. My ‘Revisiting the Rule of Law’ will belong to the ‘Philosophy of Law’ series within the Elements umbrella.

    I thought that this project might be of interest to both colleagues and graduate students because I have been writing it from the perspective of a theoretically-inclined law teacher who wonders how anyone nowadays can engage confidently with the rule of law given the sheer scale and variety of theoretically-inflected scholarship on the idea. I can’t solve this dilemma – and I don’t wish to – but I have used the Elements brief as an invitation to build some tools that might help newcomers to navigate a crowded space as well as to think beyond it. I’m looking forward to sharing some of the lessons learned en route, particularly in relation to the final part of the study in which I attempt to excavate and identify the ‘people’ and ‘relationships’ of rule of law theory.

2021 Semester 1 Program

  • 8 March 2021 - Rhian Parker (Academic Convenor of MAEVe) with Heather Douglas as commentator

    Ending violence against women and their children

    In recognition of International Women’s Day, the first Faculty Research Seminar will profile the work of MAEVe, an interdisciplinary research group run under the auspices of the Melbourne Social Equity Institute – our new neighbours on Level 7.

    The Melbourne Research Alliance to End Violence against women and their children (MAEVe) is a cross disciplinary group across the university which works towards research and action to end violence against women and children. It aims to bring together researchers from across the University in partnership with community, industry and government agencies, to tackle the problem of violence against women and their children. MAEVe strives to make a difference to the lives of women, families and communities by addressing and preventing the problem of violence against women through interdisciplinary and intra-institutional collaboration. Preventing and responding to violence against women and children is not the domain or responsibility of any one discipline. We believe that by working together we can be more effective and innovative in our ongoing efforts to end violence against women and their children. MAEVe is partnered with the Safer Families Centre of Research Excellence.

    MAEVe also works with a group of women survivors of family and sexual violence to focus on research priorities identified by survivors. The WEAVERs (Women and children who have Experienced Abuse and ViolencE: Researchers and advisorS) are women who have survived domestic or family violence informing, advising and co-designing our research. The WEAVERs group was established to ensure that the voices of women and children are central to the work of MAEVe and more broadly to the Safer Families Centre.

    Dr Rhian Parker is the Academic Convenor of MAEVe. Dr Parker is a sociologist by training and has spent many years of teaching and researching in the area of primary health care. Dr Parker has held academic positions at the University of Queensland, University of Melbourne, Monash University and the Australian National University.

    Professor Heather Douglas will kickstart the discussion and facilitate the session.

  • 15 March 2021 - Farrah Ahmed with Adil Hasan Khan and Scott Stephenson as commentators

    Secularism and Human Rights as Subterfuge

    It is no longer a surprise – if it ever was – to hear authoritarian or nationalist governments of our time invoking human rights or other constitutional values to serve their own ends. Such ‘appropriation’, ‘co-option’, ‘weaponisation’ or ‘spoiling’ encompasses a range of strategies for using rights and values. This paper focuses on strategies of subterfuge, where rights or values are used to disguise, conceal or mask the true nature of state action.

    When a government openly breaches human rights, they generally expose themselves to national and international criticism. Strategies of subterfuge pose a particular challenge because they are difficult to identify as such. Even when subterfuge is identified as such, it is difficult to establish, to the standard that courts, political institutions and the public may demand, that rights and values are being used as subterfuge. If the government is skilled at subterfuge, it may also be difficult to establish what precise goal or end the government is trying to disguise, conceal or mask. Yet these difficult tasks are essential steps for any political actor or member of the public who seeks to challenge such government action.

    This paper studies India’s current Hindu nationalist government’s defence of its new citizenship law in order to demonstrate the types of strategies of subterfuge that authoritarian nationalist governments may deploy and to demonstrate how such subterfuge – as well as the true goals of government action – may be identified and established. The paper focusses on three strategies of subterfuge which play a significant role in the government’s legal and political defence.

    The first strategy is the introduction and incubation of imposter versions of constitutional values. The paper argues that the Indian government uses an imposter version of secularism, rather than constitutional secularism, to serve nationalist ends. The second strategy is the use of human rights as camouflage to deflect criticism of the government’s true aims. The paper argues that, in debates about the new citizenship law, religious freedom functions as camouflage which hides the government’s goal of removing those it regards and ‘infiltrators’.  The third strategy is the invocation of pretended human rights precedents for state action which breaches human rights. This section shows, drawing on Adil Hasan Khan's work, how the government’s citation of the Nehru-Liaquat Pact as a precedent is unfounded and false.

  • 22 March 2021 - Christine Parker with Paula O'Brien as commentator

    An Impossible task? Australian Food Law and the Challenge of Novel Meat Analogues

    This paper argues that that the legislative remit and regulatory approach for pre-market assessment of new foods into Australia is too narrow to address the range of concerns raised about the future of food systems by the entry of new processed meat analogue products. We illustrate our argument by reference to the recent application by Californian technology company Impossible Foods Inc to sell its burger products containing a genetically modified protein that is said to make their burger ‘bleed’. Our argument is based on literature analysing the public discourse surrounding new meat analogues and our own thematic analysis of public submissions to the Impossible application. We analyse the relevant provisions of the Food Standards Australia New Zealand Act 1991 (Cth), the Australia New Zealand Food Standards Code and Food Standards Australia and New Zealand’s (FSANZ) in practice assessment of the Impossible application to demonstrate the narrow scope and application of Australian pre-market regulatory approval for new foods. We show that Australia’s regulatory pre-approval process focuses almost exclusively on the safety of individual ingredients rather than the impact of new foods on the food supply as whole, and leaves broader issues to the market and consumer choice with limited support from laws addressing misleading labelling and marketing of foods. The regime has little capacity to engage with broader and longer term, social, ecological and public health implications of new foods and changing food markets. We conclude with some suggestions as to how food regulation and policy could address urgent issues for food systems policy. These issues will become more urgent as other new foods, such as cell-based meats, enter the marketplace and apply also to the preponderance of processed foods.

  • 29 March 2021 - Jeannie Paterson, Mark Taylor and Megan Richardson with Tatiana Cutts as commentator

    Algorithmic decision-making tools: privacy, data protection and consumer protection perspectives

  • 12 April 2021 - Adrienne Stone with Ronan McDonald as discussant

    Academic Freedom

    In this chapter from a recent book (Open Minds: Academic Freedom and Freedom of Speech) Carolyn Evans and Adrienne Stone develop an account of academic freedom that follows from the contribution of university research and teaching to public well-being, directly, though the pursuit and dissemination of knowledge, and indirectly, through support for free democratic government. To perform this role, universities in turn require freedom in research and teaching, broadly conceived, and an appropriate level of independence from government and other external influences.

    Having stated the principle in outline, the chapter then considers what it means in practice by focusing on the issue of public commentary by academic researchers, a context in which the two freedoms are sometimes confused. As the chapter shows, there are two circumstances in which academics should be understood to be relying on academic freedom: when speaking within their broad area of expertise and when commenting on or criticising university governance. In contrast, when academics make general public comments that are not informed by their academic expertise, academics are exercising their free speech rights.

    The distinction is important, because although academic freedom is narrower than a general right to freedom of speech, it is also stronger. When relying upon academic freedom, the position of academics is (or at least should be) quite different from the position of others. Specifically, academics ought to have much more freedom than other employees of universities to discuss their work and ideas and to criticise university governance. When exercising ordinary free speech rights, however, academics are more or less in the same position as other citizens and, specifically, other employees of universities. This still leaves them with a considerable and broad scope of free speech, but it is subject to a wider variety of justifiable limitations.

  • 19 April 2021 - Jackie Peel with Margaret Young, Ella Vines, Bec Nelson, Kathleen Birrell and Joo-Cheng Tham as commentators

    The Role of Law in Imagining and Responding to Climate Futures 

    This panel discussion moderated by Jackie Peel will discuss the current climate challenges that are facing us, showcase the contributions of research at Melbourne Law School and highlight the importance of the expert voice to better understand and respond to our climate-changed future. We expect the seminar to serve as a call to action for interested academics, students, and staff to consider their actions and contributions in the lead up to the 26th Conference of the Parties (COP) to the UN Convention on Climate Change in Glasgow (Scheduled November 2021).

  • 26 April 2021 - Christina Ward (Liaison Librarian)

    Keep The Receipts: Finding Evidence of Your Research Impact

    Where can you find evidence to demonstrate the quality and impact of your research? Legal researchers are not well served by “standard” citation databases that provide comprehensive details to other disciplines at the click of a button, and their impact is not reflected in widely used comparative metrics like the h-index or field weighted citation impact scores. However, supplying evidence of the reach and standing of your work is an inescapable task, one that can seem overwhelming without setting a strategic direction at the outset of your search. During her seminar Christina will share some tips and tricks on how to track down mentions of your work (both scholarly consideration and other attention), give a rundown of some of the different metrics and rankings available, and discuss the limitations of various metrics, databases, and ranking lists.

  • 10 May 2021 - Sean Cooney with Alysia Blackham as discussant

    Regulation of Digital Labour Platforms

    This seminar will discuss a global study on the impact of digital labour platforms (such as Uber, Amazon Mechanical Turk, Deliveroo and Airtasker) on work relationships. The study is the 2021 ‘flagship report’ of the International Labour Organization. The focus of the seminar will be on the regulatory questions that arise from platform work. The seminar will examine the study from three angles. Sean Cooney, who is the lead author of the chapter on regulation, will first explain how the project was conceived and carried out internationally despite the pandemic. Sean will then talk about the main regulatory findings and recommendations in the report. Finally, he will explain the contribution of the report to the new MLM course Digital Technologies and the Law,  which has just concluded. Alysia Blackham, who proposed and co-taught the course with Sean, will act as discussant.

  • 17 May 2021 - Heather Douglas with Jamie Walvsich as commentator

    Proving Non-Fatal Strangulation in Family Violence Cases: A Case Study on Criminalisation of Family Violence

    Non-fatal strangulation is recognised as a common form of coercive control in violent relationships. Overwhelmingly it is perpetuated by men against women. It is dangerous both because of the immediate and serious injuries it can cause, and the risk of future violence associated with it. A discrete offence of non-fatal strangulation has been introduced in many countries. Queensland, Australia introduced a discrete non-fatal strangulation offence in 2016. While the offence is charged often, around half of the non-fatal strangulation charges laid by police do not proceed. We spoke to prosecution and defence lawyers to better understand the evidential obstacles to successful prosecution.  We found that the prosecution of the offence faces challenges common to family violence offences more broadly, despite it being a discrete physical act. Specifically, we found that the willingness of the victim to testify and the perception of the victim's credibility were key to successful prosecution.

  • 24 May 2021 - Dr Jake Goldenfein

    The Life, Death and Afterlife of Platform Regulation in Australia – The Case of the News Media Bargaining Code

    The Australian News Media Bargaining Code was the first major output of the 2019 ACCC Digital Platforms Inquiry. Addressing a 15 year old global dispute about the distribution of advertising revenues between news media organizations and digital platforms, the Australian example made world news when, in response to the threat of regulation, Facebook removed news and government information from its social media service. Although the Australian government responded with tough talk on platform bullying, Facebook’s action achieved amendments to the code that, best case, turned a legitimate effort to achieve algorithmic transparency and re-balance bargaining power between platforms and content suppliers into a paper tiger, or worst case, legitimated the business of model of gatekeeping content according to platforms’ commercial priorities and entrenched reliance on the profits of behavioral advertising to fund public goods. This seminar presents a policy brief being drafted for Konrad-Adenauer-Stiftung in advance of a round table on comparative approaches to Big Tech Regulation. It discusses the normative foundations of the News Media Bargaining Code, its political life from 2017 ACCC Inquiry Terms of Reference to legal passage in 2021, and the issues left open, unresolved, or abandoned.