Legal Research

Semester 1 Topics

Please note, additional topics will be made available once finalised.

• A rose by any other name: Are human rights and fundamental freedoms better protected by laws other than human rights charters?
  (Nicholas Petrie)

  Australia remains one of the only democratic countries to lack a constitutional or statutory charter of rights at the national level. At the State and Territory levels, only Victoria, Queensland and ACT have human rights charters, but courts are hamstrung in the relief they can provide under these charters in various ways. Despite the apparent lacuna of rights protection, the Australian legal framework is not impervious to personal rights infringements. There are various mechanisms to protect rights and lawyers are increasingly seeking to use novel legal claims for this reason. The question for lawyers and academics is: do these alternative and often novel pathways provide a better way forward in terms of rights protection? In this topic, students may want to interrogate questions such as:

  • Is tort law a better way than human rights law to protect the right to life to the extent it is threatened by climate change?
  • Is the common law, which various commentators have suggested operates as a form of ‘common law bill of rights’ in Australia, fertile ground to further strengthen rights protection in Australia?
• Artificial Intelligence, Law and Society
  (Professor Jane Kaye)

  The digital economy increasingly relies on the application of new types of big data analytics, machine learning and Artificial Intelligence (AI) to provide more targeted and sophisticated services and products. The scale and the application of these approaches to most sectors in society are having a huge impact on all aspects of our everyday lives. They have been used to track the trajectory of the COVID -19 virus to improve vaccine delivery; to identify seasonal demands in food production to improve supply chains; to enable predictions about legal outcomes; to better target online advertising and to enable consumers to engage with chatbots. There are also cases where the use of this technology has been detrimental, such as the ‘Robodebt’ scandal where an automated debt recovery programme initiated by the Federal government unlawfully claimed almost $2 billion in payments from welfare benefit recipients.

  Australia’s law and regulatory systems are currently under review to identify if they are fit for purpose, through reports from the Office of the Australian Information Commissioner (2019), the Australian Human Rights Commission ‘Human Rights and Technology Final Report’ (2021), and the Federal Government’s Digital Technology Taskforce’s inquiry into automated decision-making and AI regulation launched in March 2022. In addition, there are a number of legislative changes to existing law and new case law is being developed by the courts. Careful analysis is required to understand how existing and new laws may shape the adoption and implementation of these analytical tools, particularly in the areas relating to privacy and data protection, consumer law, corporate law, finance, competition and anti-discrimination law.

  In this topic we will explore the complexity of legal issues associated with the use of AI which we will use as an umbrella term for the various big data analytics, machine learning and Artificial Intelligence (AI) technologies. This topic will enable you to develop a deeper understanding of the law and the issues touched upon in other subjects in your degree. You will develop your ability to undertake independent legal research by learning to identify research questions, presenting your research topic and writing up your research findings.

• Australian Corporate and Consumer Finance Law: Selected Aspects and Recent Developments
  (Associate Professor Paul Ali)

  Australian companies and consumers routinely make use of credit to finance their business activities and purchases of household items respectively. These credit arrangements can take a wide variety of legal forms ranging from tiny so-called "payday loans" to huge multi-lender loans. This topic will provide an opportunity for students to engage with selected aspects of contemporary finance transactions and recent legal developments relating to corporate and consumer finance. Students will be able to undertake a substantial research paper on topics such as the Personal Property Securities Act 2009 (Cth), potentially harmful consumer credit products, and securitisation.

• Corporate Governance and Directors’ Duties
  (Professor Rosemary Langford)

  Important: Corporations Law (LAWS50035) is a mandatory prerequisite for this topic.

  Corporate Governance and Directors’ Duties builds on knowledge acquired in Corporations Law (LAWS50035) in focusing on the concept of corporate governance and, in particular, in probing aspects of core directors’ duties in further detail. Topics include discussion of the concept of corporate governance and its constituent elements, the role of regulators and of corporate governance codes, the rise of shareholder activism and the application of core directors’ duties in particularly topical contexts, as well as duties applying in the context of purpose-based companies (such as charitable and other not-for-profit companies and social enterprises).

• Feminist Jurisprudence
  (Professor Ann Genovese)

  Since the 1980s feminist scholars, across jurisdictions, have challenged the content and operation of laws that deny all people equality of status and protection. Importantly, they also disrupted the claim that equality before the law was an unequivocal certainty, and through their work instantiated a challenge to legal knowledge itself. In Feminist Jurisprudence, we will investigate and trace some of these diverse resources and sources of feminist thought.

  The seminar component of the topic will take the form of a reading group. We will engage in close contextual interpretation and conversation about ground-breaking texts, to explore what methods the authors initiated for critique and challenge to legal thought and action. The objective is to reinvigorate research around contemporary legal questions and problems that draw from these resources. Indicative texts for the reading group in 2022  are: Carol Smart Feminism and the Power of Law (1989); Kimberlé Crenshaw ‘Demarginalizing the Intersection of Race and Sex’ (1989); Margaret Thornton The Liberal Promise: Anti-Discrimination Legislation in Australia (1990); Judith Butler Gender Trouble: Feminism and the Subversion of identity(1990); Moira Gatens Imaginary Bodies: Ethics, Power, and Corporeality (1996); Janet Halley Split Decisions How and Why to Take a Break From Feminism (2006); Aileen Moreton-Robinson ‘Towards an Australian Indigenous Women’s Standpoint Theory: A Methodological Tool’ (2014). For their projects, students will be invited to think with one of the discussed texts to interrogate a current jurisprudential or legal problem of their choice (for example, in the areas of reproductive rights; sexual harassment and #MeToo; family law and family violence; discrimination law; employment law; status of persons before the law; although students are encouraged to apply the techniques discussed in the seminar to any area of law).

• Law, Rights and Identity in Southeast Asia
  (Professor Tim Lindsey AO)

  Southeast Asia is place of extraordinary ethnic, religious and political diversity and has undergone dramatic change over the last thirty years. As champions of conservative authoritarianism and reformist liberal democratic reform compete for political power they exploit this diversity, with issues of law, human rights and identity constantly at the heart of public debate. This topic explores major constitutional and legal controversies in Southeast Asia, focusing on their social, political and cultural contexts and how human rights are articulated in this complex region, one that will be of crucial economic and strategic importance for Australia in the coming decades.

  Students in this topic can work on any one or more of the states of Southeast Asia, including, for example, Vietnam, Malaysia, Indonesia, Singapore, Brunei, Timor Leste, the Philippines, etc. There is a very wide range of issues related to law and rights in the region students can chose to investigate, including, for example, the death penalty, the application of shari’a, racial laws, self-determination, women’s rights, access to justice, disability, treatment of LGBTQI people, the criminal process, constitutional rights, judicial interpretation of rights, freedom of expression and dissent, the right of association, NGOs and trade unions, and Internet rights, to name just a few. There is also flexibility about the type of research project that may be undertaken, including historical, socio-legal, theoretical or doctrinal approaches, among other.

  Prior knowledge of Southeast Asia not necessary.

• Law Reform
  (Dr Olivia Barr)

  If you could change one law, what would it be? Imagine, genuinely imagine, that for one day you were given the powers of Parliament to amend laws. What would be the first thing you did? What problem would you want to solve? Where do you see the greatest injustice? What area of law gets under your skin and you just need to fix it? Is there something missing from the current legislative landscape? Is something no longer helpful, even harmful, that needs radical updating?

  Keeping in mind all the state and federal legislation currently on the books in Australia, which piece of legislation would you change? More specifically, which section or sections would you change, and why? Would your changes remove, alter or create something entirely new? There are so many answers to these questions, but some examples include the authorised destruction of cultural heritage like Juukan Gorge, indefinite immigration detention, Ministerial approvals for developments impacting the environment, tax subsidies for real estate investments, the age of criminal responsibility, and universal basic income.

  Most of the time, as lawyers, we focus on problems, but in this legal research topic we take the opportunity to create solutions. Law reform involves different actors, including ministers responsible for a bill, lawyers and policy officers in government departments providing advice, and parliamentary counsel who are the expert legal drafters. In this topic you will learn about how lawyers participate in law reform, and practice the specialist skills involved in drafting a bill that changes the law.  The purpose of this topic is to give you a chance to embark on a law reform project entirely of your own choice. The only requirement is you engage with a single piece of state or federal legislation. You will need to choose one piece of legislation, identify a legal problem, provide context for that problem, including why it is a problem, propose a solution, and draft an amendment bill implementing your solution. To frame this research topic, in the first seminar we will learn about law reform by focusing on the ‘back of house’ practices of lawyers effectuating change, including how to draft amendment bills. In the second seminar, we will explore some examples and discuss how to go about choosing your topic, and different research methods that may help you approach your chosen topic.

• The Idea of Equity
  (Professor Matthew Harding, The Hon Justice Joseph Santamaria KC and The Hon Justice Stephen Kos KC)

  Equity plays a distinctive role in the common law. The law expresses norms that focus on external conduct and are absolute in their application.  The only exceptions are those that are themselves provided for at law.  The principles of equity, which began to develop in Chancery in the late 15th century, mitigate the absolute impact of the law.  In establishing those principles, the Chancellors explored the concept of conscience, something internal.  Equity restrained the pursuit of legal remedies where the insistence upon legal rights was considered to be ‘against conscience’.  It also closely regulated certain essential relationships in which one party to the relationship was peculiarly vulnerable to exploitation by the other.  Although equitable principles have become established, their application depends upon a finding that a party has behaved unconscionably.  More recently, the law has itself begun to adopt equitable principles as Parliament has expressed legal norms in terms previously deployed solely in equity, for example where it has proscribed conduct said to be ‘unconscionable’.

  The research topic offers participants the opportunity to reflect upon equity and its relationship to the law.  That reflection may generate research papers that explore the origins and development of equity, its peculiar features, how and why it has come to regulate certain relationships, the rationale behind its maxims, the meaning of its touchstone ‘against conscience’ and the relatively modern development in which equitable principles are used in statute.

• The Politics of the Rule of Law: from Plato to the Present
  (Dr Julian Sempill)

  Since around the middle of the twentieth century, some academics, and some of their current and former students, have come to think of ‘the rule of law’ as a list of criteria that laws or legal systems should satisfy. For example: are the laws public and prospective? Are they sufficiently general and clear? The widespread support for this way of thinking about ‘the rule of law’ sometimes leaves students with the impression that there is no other way to think about it.

  This topic aims to undo that false impression by considering alternative ideas about the rule of law. Which ideas about ‘the rule of law’ are best? There is no sensible answer to that question that is not shaped by where and when it is answered, and, perhaps, by whom. Nor is there any sensible answer that is not informed by morality and politics. The rule of law is always a political doctrine and, also, in large part, traditional and rhetorical. As the rule of law is political, traditional, and rhetorical, our efforts to understand it should be contextualizing and critical. Students should take this topic if they are interested in the history and politics of ‘the rule of law’.

• The Process of Proof: Truth, Error and Values
  (Professor Andrew Roberts)

  The aim of this legal research topic is to provide you with an opportunity to think in more depth about the inquiry with which the criminal trial is concerned. Put simply, we might say that its aim is to discover the truth of the events that led to the defendant being tried. But juries are frequently presented with competing claims as to what occurred, neither of which might represent the truth of the matter. An attempt to discover the truth of past events is no easy task. The evidence presented to fact-finders is likely to suffer from various deficiencies. Fact-finding will depend on inferential reasoning, that in turn relies on what is referred to as common knowledge and experience. But the knowledge, possessed by fact-finders, and the extent of their experiences, may well provide an inadequate basis for reliable fact-finding. The way in which they approach their task is likely to be influenced - often unconsciously - by their commitment to certain moral and political values. Moreover, it is now well-established the emotions that fact-finders experience when presented with evidence will affect they reason.

  The fact-finding process that we expect juries to undertake in criminal trials is a complex one. Given this it should be no surprise that there is no consensus as to what should we take the aims of the law of evidence to be. Some suggest that the primary function of the rules of evidence should be to ensure accurate outcomes; that is to say, to ensure - as far as is possible - that the factually guilty are convicted, and the factually innocent acquitted. Others take the view that the consequences of wrongful conviction are so serious that the overriding objective of the law of evidence ought to be avoiding this kind or error. Alongside these epistemic issues, are questions about the non-epistemic values that the criminal trial and the law of evidence ought embody, and the extent to which pursuit of the truth, and conviction of the factually guilty, ought to be prioritised ought to be prioritised over some of these values.

  In this legal research topic, you will be expected to engage in critical thinking about the law of evidence. This might be about its fundamental aims, or how competing objectives ought to be prioritised. You might use these ideas, or the difficulties associated with fact-finding process undertaken in the criminal trial as a starting point for critical evaluation of a particular evidential rule or issue and associated jurisprudence.

• Treason, Sedition, Heresy and Dissent: Political Trials in History
  (Associate Professor Amanda Whiting)

  Students will research and write a paper on the continuing significance of an historically important prosecution and trial for ‘political crimes’ such as treason, sedition, rebellion, agitation, heresy, blasphemy and other forms of dissent. After studying examples of this genre of legal history writing and a selection of primary source materials, students will be assisted to select their own topic.

  Students already acquainted with historical research methods will be able to refine their skills. There is, however, no expectation of prior historical training, and students who are new to the study of history will be given guidance to develop an appropriate research methodology to fit their chosen topic. The research paper should include at least two of the following three aspects (unless permission for a variation has been granted): (i) analysis of trial records and contemporaneous documentation such as reports in the mass media, pamphlets and other polemical materials; (ii) examples of the way the trial has been mythologised and reinterpreted, for example through subsequent treatment in elite or popular culture or within politico-legal discourse; (iii) evaluation of changing ‘serious’ or academic analysis by historians and legal scholars and how and why scholarly interpretations have changed over time.

  A small selection of some of the many excellent research papers written by JD students who have previously taken this topic can be found in Legal History Matters: From Magna Carta to the Clinton Impeachment, edited by Amanda Whiting and Ann O’Connell (Carlton: Melbourne University Press, 2020) – e-book held in university Library.