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 1, 2019 seminars will be organised and hosted by Adrienne Stone and Scott Stephenson.
The seminars are held weekly on Mondays during semester from 1.10pm - 2.00pm 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.
- 4 March 2019 - Professor Jacqueline Peel with Professor Mark Squillace as discussant
*Please note this session will be held in Room 202*
Title - The Rocky Hill Coal Mine Case: Paving the Way for More Courts to Choose Climate Over Coal?
Abstract - On 8 February 2019, Chief Justice Preston of the NSW Land and Environment Court issued a landmark ruling in the Rocky Hill Coal Mine case, rejecting Gloucester Resources Ltd appeal against refusal of its new coal mine proposal in the NSW Hunter Valley. The judgment has buoyed climate advocates and campaigners worldwide who see it as an important precedent for efforts to use courts to challenge fossil fuel developments that contribute to climate change. Characterising the coal mine proposal as “in the wrong place at the wrong time,” Chief Justice Preston remarked that it was the “wrong time” for a greenhouse gas intensive coal mine project “when what is now urgently needed, in order to meet generally agreed climate targets, is a rapid and deep decrease in … emissions.” In Australia, the judge’s decision has attracted intense attention in the media and legal profession, with some predicting it will affect the viability of coal and other fossil-fuel dependent industries, reduce investment and threaten job creation. Some have also levelled allegations of “eco-bias” and “judicial activism” against Chief Justice Preston.
The Rocky Hill Coal Mine case presents an opportunity to revisit settled understandings of the barriers to successful public interest environmental litigation for climate change causes, including issues of standing, causation, establishing injury, separation of powers and the proper role of the courts in climate governance. In a 2011 article, I summarised some of the key “issues” facing climate change litigation on the basis of the case law developing around the world at that time. This seminar seeks to re-examine those issues in light of the findings in the Rocky Hill Coal Mine case and to analyse the implications of this decision for future climate litigation in Australia and also globally.
- 18 March 2019 - Associate Professor Jianlin Chen with Professor Jenny Morgan as discussant
*Please note this session will be held in Room 202*
Title - Fraudulent Sex Criminalisation in Australia
Abstract - This Article contributes to the understanding of fraudulent sex criminalization in Australia by undertaking the first ever concerted inquiry into the design and enforcement of procurement offence (a sexual offence that punishes obtaining of sex through any false representation) across the eight Australian States and Territories. Situating the amendments to the procurement offence with rape law reform, this Article highlights the how the haphazard nature of sexual offence reform in some jurisdictions has resulted either in a structurally ambiguous relationship between the procurement offence and rape, or unintended decriminalization of a large swath of activities. In terms of enforcement, this Article finds that the procurement offence has been questionably used to prosecute deception where the subject matter of the deception involves criminal activities or otherwise morally problematic behaviors.
- 25 March 2019 - Dr Erin O'Donnell with Professors Sundhya Pahuja and Lee Godden as discussants
Title - Legal Rights for Rivers: a Paradox at the Heart of Environmental Law
Abstract - In 2017 four rivers in Aotearoa New Zealand, India, and Colombia were given the status of legal persons, and there was a recent attempt to extend these rights to the Colorado River in the USA. Understanding the implications of creating legal rights for rivers is an urgent challenge for both water resource management and environmental law. Giving rivers legal rights means the law can see rivers as legal persons, thus creating new legal rights which can then be enforced. However, these new legal rights also establish rivers as potential competitors for scarce water resources. This outcome can undermine the potential benefits of granting rights to rivers in the first place, and legal rights for nature creates an apparent paradox, where more legal rights can lead to less legal protection. This paper seeks an explanation for this apparent paradox by examining the ways in which the environment is constructed in law, and how these multiple constructions interact to generate the paradox. In doing so, it highlights how the movement to extend legal rights to nature, which continues to drive legal reform around the world, may be creating real theoretical and practical problems for environmental law.
Erin's paper is available online. For those short on time, please focus on Parts 2 and 4 (which set up the paradox of legal rights for rivers, and then explain how this paradox has emerged from the ways in which the environment in constructed in law).
- 1 April 2019 - Associate Professor Alysia Blackham with Professor Kirsty Gover as discussant
Title - Laboratory federalism and Australian age discrimination law
Abstract - According to the theory of laboratory federalism, federal systems can promote governmental innovation and experimentation, while containing the risks of innovation to only one jurisdiction. Laboratory federalism offers the possibility of testing and evaluating various policy options, with the aim of optimising policy solutions at both the federal and state level. However, it is unclear whether these benefits are realised in practice, and whether states are actually effective ‘laboratories’.
Focusing on a case study of age discrimination law in Australia, and drawing on the literature on laboratory federalism and related ideas of experimentalism developed in the context of labour law; legal doctrinal analysis of age discrimination law in the Australian states and territories, and at the federal level; and a pilot study of ten qualitative expert interviews, this paper evaluates the extent to which the benefits of laboratory federalism are realised in practice.
I argue that the benefits of laboratory federalism have not been realised in the context of Australian age discrimination law; rather, the federal structure has led to a confused and confusing patchwork of legal regulation. The benefits of experimentation, in this context, may be outweighed by the resulting difficulties of enforcing age discrimination law.
- 8 April 2019 - Associate Professor Farrah Ahmed with Professor Jason Varuhas as discussant
Title - A Theory of Judicial Review of Administrative Action
Abstract -Judicial review, as a significant legal means of holding administrators to account, ought to be well understood. But a crucial set of foundational questions which make sense of the legal doctrine relating to judicial review has received relatively little attention. Why are the rules as they are, and not otherwise? Why is judicial review available on particular grounds and not others? How (if at all) are the rules coherent? How do the different grounds of review fit together? What explains the assumption that judicial review reflects moral values?
Good answers to these questions are essential to fully understand judicial review. This paper offers such answers through an interpretive theory of judicial review, i.e. a theory which aims to make sense of judicial review by revealing the intelligibility, coherence, significance and moral salience of its features. The ‘delegation theory of judicial review’ draws on the idea that administrators are the delegates of either Parliament or the Crown. This idea is deeply embedded in public law and it turns out that unpacking this idea yields a simple and intuitive theory.
Sections I and II of the paper introduce the legal notion of delegation and three ideal-types of delegation relationships. Section III demonstrates how understanding the duties of administrators qua delegates, in the three types of relationship of delegation, makes sense of the grounds of judicial review. Section IV shows that the delegation theory can explain judicial review of the Crown’s prerogative and general administrative powers and Section V shows that it can explain judicial review of de facto powers. Section VI explains how the delegation theory accounts for the doctrine relating to standing and the intractability of debates about the role of judges. The final sections demonstrate the virtues of the theory relative to other interpretative theories of judicial review.
Farrah's paper is available online. For those short on time, please focus on sections I-IV
- 15 April 2019 - Professor Lois Lupica with Senior Lecturer Kate Fischer-Doherty as discussant
Title - Self-Help, Reimagined
Abstract - We will never have enough lawyers to serve the civil legal needs of all low- and moderate-income (LMI) individuals who must navigate civil legal problems. A significant part of the access to justice toolkit must include self-help materials. That much is not new; indeed, access to justice commissions across the country have been actively developing pro se guides and forms for decades. But the community has hamstrung its creations in two major ways. First, by focusing these materials on educating LMI individuals about formal law, and second, by considering the task complete once the materials have been made available to self-represented individuals. In particular, modern self-help materials fail to address many psychological and cognitive barriers that prevent LMI individuals from successfully deploying their contents. This Article makes two contributions. First, we develop a theory of the obstacles LMI individuals face when attempting to deploy professional legal knowledge. Second, we apply learning from fields as varied as psychology, public health, education, artificial intelligence, and marketing to develop a framework for how courts, legal aid organizations, law school clinics, and others might re-conceptualize the design and delivery of civil legal materials for unrepresented individuals. We illustrate our framework with examples of reimagined civil legal materials.
Lois' paper is available online.
- 29 April 2019- Professor Elise Bant, Professor Jeannie Paterson, and Associate Professor Andrew Godwin
Title - Banking Royal Commission
A summary of the commission’s recommendations is available via this link.
- 13 May 2019 - Dr Emma Nyhan and Mr Eddie Cubillo with Professor Kirsty Gover as discussant
Title - Translators of Indigeneity in the Israeli/Bedouin Context
Abstract - The new millennium saw the Bedouin in Israel enter the physical space of international law when a grassroots organisation, which included a female Bedouin delegate, submitted a formal request for indigenous recognition at the UN Working Group on Indigenous Populations (UNWGIP). This isolated event is illustrative of the Bedouin’s international indigenisation and quest for UN recognition. By tracing how the Bedouin have become indigenous, it demonstrates the ways in which the international legal concept and category of indigenous peoples is made active and given effect in context. It also hones in on actors involved. Among the constellation of actors, the ‘rights translator’ emerges. The job of the rights translator is to appropriate (take up) rights from the international setting and to translate (decode and tailor) rights into the vernacular in domestic and local settings. Civil society organisations (CSOs), specifically those working on human rights issues, are key because these rights translators are intermediaries—the middle women and men—that transplant rights from the international setting to the domestic and local setting. One focus of this socio-legal inquiry is the role of domestic CSOs in the Israeli/Bedouin context in appropriating and translating the internationally-defined status and rights of indigenous peoples. Second, it focusses on the UN Special Rapporteurs on the Rights of Indigenous Peoples and in particular their involvement in the international recognition of the Bedouin as an indigenous peoples under UN law.
Eddie and Emma's papers are now available. For those short on time please read the abstract.
- 20 May 2019 - Dr Rebecca Nelson with Professor Jacqueline Peel as discussant
Title - Incremental Environmental Change
Abstract -Cumulative environmental effects are a key challenge for the environment, sustainable development, and environmental law across the globe. Many profound environmental problems are accompanied by failures effectively to regulate multitudinous harms that aggregate to become significant—from air pollution, to over-consumption of water, to incremental damage to biodiverse forests. Most scholarship on cumulative environmental effects is found in the scientific literature relating to assessing the impacts of major projects in the context of other impacts with which they aggregate. Illustrated by diverse examples from legal frameworks around the world, this exploratory early-stage working paper argues that (1) legal responses to cumulative environmental effects are vital to effectively understand and control them; (2) a much wider range of environmental and natural resources laws can control cumulative environmental effects than is generally conceptualised as such by the scientific literature; and (3) legal responses to cumulative environmental effects must often operate within multi-level governance frameworks, which pose fundamental challenges to effectively understanding and controlling cumulative environmental effects. The paper forms a component of the ARC-funded project ‘Regulating cumulative environmental effects: Designing global best practice.
Rebecca's paper is now available. Please contact the Office for Research for a copy of the paper prior to Monday's session. For those short on time please read pages 1-6 and 18-25.
- 27 May 2019- Professor Jason Varuhas with Professor Matthew Harding as discussant
Title - The Socialisation of Private Law: Balancing Private Right and Public Good
Abstract -This paper analyses a major trend in private law: the socialisation of private law. ‘Socialisation’ denotes a refocusing of private law away from inter partes rights to public and third party interests, often at the expense of individual rights traditionally protected by private law. The paper (i) charts and analyses the trend of socialisation across a range of areas of private law, focusing on the intensification and acceleration of this multi-faceted process over the last 20 years; (ii) examines the causes of these changes; and (iii) offers some observations on the changes, considering their wider ramifications and the normative desirability of socialisation.
Jason's paper is now available online.