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 2018, seminars will be organised and hosted by Adrienne Stone, Julian Sempill and Cait Storr.
The seminars are held every week during semester from 1.10pm -2.00pm.
Seminars will be held in Room 920, Level 9 – Melbourne Law School.
A light refreshment will be provided from 1:00pm by Asylum Seeker Resource Centre Catering.
The presenter will speak for about 30 minutes, followed by time for questions.
- 12 March 2018 - Dr Jarrod Hepburn with Professor Alison Duxbury as Discussant
Title - Unilateral Acts and State Responsibility: Situating Domestic Investment Statutes within International Law
The field of international investment law is usually understood to be based on the extensive network of bilateral and multilateral investment treaties that has been established since the first such treaty was signed in 1959. Nearly every state has signed at least one investment treaty, which now number in the thousands, between all varieties of pairs of states. The treaties have sparked hundreds of investor-state claims in international arbitration, and a mass of commentary and discussion.
Read the full paper online.
- 19 March 2018 - Associate Professor Tarun Khaitan with Laureate Professor Cheryl Saunders as Discussant
Title - Political Insurance for the Poor
Liberal-democratic constitutional discourse has failed the poor. Not so much those who are poor in an absolute sense, i.e. those who lack reasonable access to basic human needs such as food, security, water, shelter, education and warmth. Whatever their lot in the practice of liberal states, at the discursive level mainstream liberal theories have consistently held that the satisfaction of these needs is a fundamental, non-negotiable, task of the state. From the anti-perfectionist liberal tradition, John Rawls thought that the satisfaction of such needs was a constitutional essential. For perfectionist liberals like Joseph Raz, their satisfaction is a necessary precondition for our well-being.
Read the paper online.
- 26 March 2018 - Professor Susan Kneebone, Professor Kirsty Gover and Dr Shireen Morris
Title - Membership of a Political community
Professor Susan Kneebone suggests that you read the following excerpts of her paper, which is available via this link:
- Introduction (pp0-1)
- Nationality and married women, pp3-5
- Nationality … pp5-7 – amendments pp12-13
- Critique and conclusions pp13-17
- Table 3 p22
- Continuing precarity and conclusions pp24-26
Professor Kirsty Gover suggests that you read the following excerpts of her paper, which is available via this link:
- The Introduction (pages 1-4)
- Pages 21-26.
Dr Shireen Morris suggests that you read excerpts of the following texts, which are available via these links:
- 9 April 2018 - Associate Professor Will Partlett with Professor Adrienne Stone as Discussant
Title - Tradition and Comparative Constitutional Law
“In order to know what the law is, we must know what it has been, and what it tends to become.” Oliver Wendell Holmes.
In this short essay, I will argue that an understanding of tradition is an important methodological approach as comparative constitutional law moves beyond the canon. An understanding of tradition allows comparativists to understand the context-specific assumptions within common concepts —like rule of law or constitutional review—that are used to structure comparative inquiry
Read the paper online.
- 23 April 2018 - Professor Jeff Goldsworthy with Professor Hilary Charlesworth as Discussant
Title - Judicial Activism
Revisiting Tom Campbell's paper "Judicial Activism - Justice or Treason?"
Read the paper online.
- 30 April 2018 - Professor Julian Webb with Associate Professor Peter Rush as Discussant
Title - Technology, Legal Education and Human Dignity: A Provocation
Read the paper online.
In 2017, semester 1 seminars were organised and hosted by Glenn Patmore. Semester 2 seminars were be organised and hosted by Adrienne Stone, Julian Sempill and Cait Storr.
- 31 July 2017 - Professor Jack Anderson
Title - Match Fixing and Sport: A Study in Transnational Economic Crime
Abstract - This presentation revolves around the following: a conspiracy to fix or otherwise manipulate the outcome of a sporting event for profitable purpose. That conspiracy is in turn predicated on the conspirators’ capacity to: (a) ensure that the fix takes place as pre-determined; (b) manipulate the betting markets that surround the sporting event in question; and (c) collect their winnings undetected by either the betting industry’s security systems or the attention of any national regulatory body or law enforcement agency.
- 7 August 2017 - Dr Scott Stephenson
Title - Against Interpretationas an Alternative to Invalidation
Abstract - This is an extended abstract for a paper that Scott is in the very initial stages of writing on the use by courts of interpretation as an alternative to invalidation as the means of ensuring legislative compliance with constitutional norms.
- 14 August 2017 - Panel: Laureate Professor Cheryl Saunders AO, Associate Professors Kirsty Gover and Jason Varuhas with Professor Michael Crommelin AO acting as Chair
Title - Public Law/Private Law
Each presenter will speak to a proposition, as follows:
- Professor Saunders: “The border between public law and private law is porous but not irrelevant; and students need to be able to work across it”
- Associate Professor Gover: “The indeterminacy of the public-private law boundary supports just indigenous-state relationships”
- Associate Professor Varuhas: “Nothing of legal significance should rest on a distinction between public law and private law”
- 21 August 2017 - Associate Professor Farrah Ahmed with Professor Matthew Harding acting as discussant
Title - Expressivism and Symbolic Establishment
Abstract - This paper outline is concerned with establishment, by which Farrah means the privileging of a national church, national religious organisations or particular religious practices by a state. Theocratic states without religious freedom protections for minorities are commonly criticised. But Farrah is interested in the kind of establishment which is considered relatively unproblematic, because the state in question is a liberal state which offers equal citizenship rights, and because the privileges that the favoured church/religion receives are not materially very significant. Instead, the privileges that remain may be regarded as ceremonial or symbolic.
- 28 August 2017 - Dr Alysia Blackham with Associate Professor Anna Chapman acting as discussant
Title - Individual Enforcement of Age Discrimination Claims in Australia and the UK
Abstract - This paper evaluates what is known about the success (or otherwise) of individual enforcement of equality rights in the UK and Australia, with a particular focus on the enforcement of age discrimination law. The common legal foundations of the two countries, similar experiences of population ageing, and similar legal models for addressing age discrimination13make the UK and Australia highly appropriate comparator countries.This comparison stems from a ‘problem-solving’ or sociological approach to comparative law, which examines how different legal systems haveresponded to similar problems (here, the challenges of demographic ageing). This paper particularly focuses on the initial claiming or complaint stages of individual enforcement, rather than court hearings, on the basis that most claims are filtered out of legal systems well before reaching a court or tribunal.
- 4 September 2017 - Panel: Professor Elise Bant, Associate Professor Jeannie Paterson and Dr Dale Smith
Title - Adjudication
Each presenter will speak to a provocation, as follows:
- Professor Elise Bant: “The history of adjudication on the novel prohibition on misleading conduct under the Trade Practices Act and its remedial regime illustrates the nature and strengths of judicial methods of reasoning.”
- Associate Professor Jeannie Paterson: “The reality that most consumer disputes do not go to court means we need to look beyond judicial decision making in developing the law in this area.”
- Dr Dale Smith: “Cases that come before appellate courts may be atypical but we can learn much from them about the nature of law.”
- 11 September 2017 - Associate Professor Jianlin Chen with Professor Jeremy Gans acting as discussant
Title - Fraudulent Sex Involving Religion (and Romance?): The Case Study of Criminalizing Sex under Religious False Pretence in Hong Kong.
Abstract - The issue as to criminalization of fraudulent sex is emotive. Procurement of sex through fraud pits the intrinsic moral objection (and the accompanying long-standing legal sanctions) of deception in the conduct of human affairs, against the common perception that lies are prevalent in sexual relationships. Indeed, it is typical for academics to confront the classic scenario of the criminal getting sex through a dishonest proclamation of love—arguably the most common form of deception in sex—regardless of their stance on the issue, while courts around the world continue to deal with many cases ranging from the relatively mundane (if no less reprehensible) to the more elaborate. Among these, are fraudulent representation that the sexual intercourse is part of medical and other forms of remedial treatment, elaborate deception schemes that co-opt the ease of constructing fake persona over the internet, or the seemingly straightforward lies that raise broader public policy considerations (e.g., sexually transmitted diseases, use of birth control, gender, ethnicity).
Then, there is sex through religious fraud.
- 9 October 2017 - Dr Jenny Beard
Title - Not-For-Profit Law and Freedom of Political Expression
Abstract - This chapter charts the current evolution of Australian charity law by exploring the boundaries within which charities may freely advocate and express their views concerning governmental and political matters in Australia. This issue has generally been understood as a question of where to draw the line between charity and politics. This chapter retains that focus. The ultimate aim of this chapter is to reveal how particular principles entrenched in the Australian Constitution are becoming imbedded in concepts such as charitable purpose and public benefit in Australia. I argue that these constitutional principles are now assuming some of the role that has traditionally been performed by common law doctrines and that it is these principles that may ultimately help to determine where the boundary between charity and politics lies in Australia.
- 6 March 2017 - Professor Elise Bant
Title - Unjust Enrichment and Restitution Law in the Kiefel High Court
Abstract - A succession of important cases over the last thirty years has provided repeated opportunities for the High Court to exert a considerably degree of ‘top-down’ influence on the evolution of the Australian law of unjust enrichment and restitution, to a degree not necessarily found in other jurisdictions. The particular ‘character’ of successive Courts has been an important part of that story. The Mason court saw Mason and Deane JJ in particular repeatedly engage with unjust enrichment analysis as part of a much broader attempt to synthesize principles across the breadth of the private law (also seen, for example, in the Waltons and Verwayen decisions concerning estoppel). Justice Gummow’s scholarship played a marked role in subsequent Courts’ efforts to halt, if not reject entirely, this process of integration and to treat unjust enrichment analysis with corresponding caution. Later decisions in the French court have revealed a fresh state of flux in the field (as marked by Equuscorp, AFSL and most recently Lavin). With the recent appointment of Edelman J comes widespread speculation that there may be again be a changing in the tide within the High Court in favour of the recognition of the value of unjust enrichment analysis. But other recent appointments such as Nettle J and Gordon J are potentially also part of that evolving story, with Kiefel CJ’s own influence and considerable interest in the field also yet to be fully mapped. This paper reflects upon the patterns of influence, decisions and scholarly writings of successive members of the High Court Australia from the Mason court to the present, concluding with some observations on the future of the law of unjust enrichment and restitution in Australia.
- 20 March 2017 - Professor Robert Glicksman
(The George Washington University)
Title - Reorganizing Government: The Functions and Dimensions of Regulatory Authority
Abstract - Longstanding notions of how regulatory institutions relate and interact are being challenged. To date, however, a comprehensive framework for characterizing the allocation of government authority, for comprehending the relationships among governmental institutions, and for assessing the tradeoffs of different potential allocations is lacking.
This presentation is based on a forthcoming book that seeks to revise conventional understandings of institutional relationships, and offers a pioneering model for assessing government organization. It will explain how past approaches have failed to appreciate the full diversity of alternatives for organizing governmental authority to help address human problems. The presentation will focus on the relationships and tradeoffs among three different dimensions of government regulatory authority: the extent to which it should be centralized or decentralized, overlapping or distinct, and coordinated or independent. It will also highlight the value of assessing whether allocations should differ depending on the governmental function—such as funding, planning, permitting, enforcement—being exercised. Past failures by policymakers to consider these attributes of institutional relationships have contributed to reorganization efforts that have proven ill-suited to achieving policymakers’ goals due to mismatches between the perceived defects of existing structures and the allocations of authority chosen to replace them.
- 27 March 2017 - Dr Wendy Ng
Title - Broadening the lens of international competition law: China's potential impact
Abstract - Competition law is increasingly international in its scope and application. Today, over 120 jurisdictions have adopted a competition law, and an international consensus on the norms, standards, and best practices for competition law has been created and fostered. However, this paper argues that this consensus is no longer truly representative of the international competition law community. Developing countries now constitute a majority of competition law jurisdictions, yet the international competition norms that are being developed may be inadequate to address their goals, needs, and concerns. The dynamics of the institutions and means through which international competition law is forged has resulted in norms that reflect the perspectives and approaches of the United States, Europe, and developed countries. With the recent emergence of China as the third pillar of international competition law, alongside the United States and European Union, a question that arises is whether and how China’s competition law and enforcement might lead to an international competition law that better accommodates the perspectives of developing countries, especially in relation to development-related issues. This paper begins to consider this question.
- 3 April 2017 - Dr John Waugh
Title - A queer history of Melbourne Law School
Abstract - Queer history is well established in histories of gender, sexuality and intimacy, but it has been slower to make its way into institutional history. This paper considers some of the ways in which queer perspectives can inform the history of the Melbourne Law School. It takes queer history in two senses, both as a catch-all term for histories of LGBTI people, and as a theoretical approach that encourages alternative interpretations of established histories. The people of the law school provide rich material for both approaches, from the cases fought by the early barrister–lecturers, through the first women graduates, to the Gay Liberation and law-reform movements of the 1970s.
- 10 April 2017 - Professor Christine Parker,
Associate Professor Suzanne Le Mire
(University of Adelaide), and
Dr Anita Mackay (Latrobe University)
Title - Lawyers, confidentiality and whistleblowing: lessons from the McCabe tobacco litigation
Abstract - In 2006 Christopher Dale leaked information about Clayton Utz’s internal investigation into the events surrounding the destruction of documents that would have been relevant and damaging to their client, British American Tobacco in the 2002 McCabe litigation. This paper uses this case study to examine whether lawyers can and should act as whistleblowers against colleagues and clients who abuse the administration of justice. We argue that although lawyers must have strong obligations of confidentiality to clients and others, their role as gatekeepers of justice also demands that they be allowed to blow the whistle when where they have information about clients or other lawyers using legal services to subvert the administration of justice, and be protected when they do so. The paper evaluates the circumstances in which such whistleblowing is appropriate and makes suggestions about how the law should be reformed by reference to three touchstones: the nature of the relationship between the lawyer and the wrongdoer; the nature of the wrongdoing itself; and, the process used to disclose the wrongdoing.
- 24 April 2017 - Dr Olivia Barr
Title - Legal Footprints
Abstract - Outside Yulara, tourists increasingly refrain from walking on Uluru in respect of Anangu Tjukurpa (i.e. Anangu law). Likewise, visitors to Aboriginal lands in Western Australia and the Northern Territory often seek permission before entering, another sign of respect for Aboriginal laws. Yet in Australian cities, apart from occasional acknowledgements of Country in institutional settings, we do not tend to seek permission before entering another’s Country, when we cross, for instance, the Sydney Harbour Bridge. We do not seek permission to walk city streets. Why not?
As legal and anthropological research has long shown, Aboriginal law is a form of law that is different from Australian law, and continues to be practiced, not just out bush, but in the cities too. Taking this seriously, what might it mean to walk in a city where the land is another form of law? And how might public artists focus our legal attention? In this seminar, working with the ‘40,000 Years’ mural in Redfern as an example, I explore my basic proposition that when we walk in the city, we do so as legal subjects of a state-based law, while also walking on land that is another form of law. In other words, each footprint is a legal relation.
- 1 May 2017 - Associate Professor Margaret Young
Title - Energy Transitions, Fossil Fuel Subsidies and International Law
Abstract - Climate scientists have argued that oil, gas and coal reserves must remain unexploited to limit global warming increases to 2 degrees Celsius above pre-industrial levels. Yet governments are continuing to provide financial support for the increased production and consumption of such reserves; annual fossil fuel subsidies are estimated to be $650 billion globally. This presentation traverses the trade regime’s disciplines on subsidies, the climate regime’s concept of territorially-bounded emissions and customary international law notions of due diligence. It compares the position of energy exporting states (such as Australia) in each of these governance frameworks, drawing wider implications for an equitable, effective and legitimate transition to a low carbon economy. This work in progress will be further developed as part of Young’s visit to the European University Institute (EUI) and Freie Universität Berlin in semester 2.
- 8 May 2017 - Brad Jessup
Title - The Sustainability Business Clinic – A model for Australian clinical legal education for a ‘new environmentalism’ and integrative environmental law
Abstract - Australia is observing a ‘new environmentalism’ – with a wave of community representatives and groups shifting their attention away from government action towards enterprise collaboration and localised community organisation as a means of achieving environmental protection. Meanwhile, legal scholars have started to write about a ‘fourth generation’ of environmental laws that see environmental law as being ‘integrated’ – more connected with other sub-disciplines of the law and as an instrument to accommodate a plurality of values about the environment. This paper situates the MLS Sustainability Business Clinic within this context, and presents the clinic as successful in positioning environmental problems across multiple subject areas within and beyond law.
- 15 May 2017 - Professor Carolyn Evans
Title - Law, Religion and Women’s Rights
Abstract - Using two cases as focal points (one from Europe and one from Malaysia) this talk will examine the ways in which women’s rights are both hindered and enhanced by religion and law. In the Dahlab case, the European Court uses the law to restrict women’s choices around religious clothing in the name of gender equality and tolerance. In Lina Joy the Malaysian Court defers to religious norms and allows them to undermine constitutional rights. In both cases, the law fails religious minority women.
Challenging much of the modern discourse about religion being inherently oppressive and women needing to be rescued from it by secular legal systems, the talk argues that both law and religion can play liberating and oppressive roles in women’s live. Women use the tools available to them to work towards outcomes that they see as valuable.