Melbourne Law School - Research Publications
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ItemMixed methods research(Edward Elgar Publishing, 2024-08)Mixed methods research designs meaningfully integrate both qualitative and quantitative methods to understand a research problem. Mixed methods research methodologies can be used to cast a nuanced light on complex legal problems, generating new answers which would not be perceived with one data source alone. However, mixed methods research appears rare in labour law research, perhaps reflecting gaps in legal data, the time and cost of undertaking such studies, and limited training in quantitative methods in some jurisdictions. This chapter identifies data sources that could enable a new generation of mixed methods labour law research.
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ItemAgents in International Tax Treaties(Oxford University Press, 2023)This chapter discusses agents in international tax treaties. One of the most common ways through which an enterprise may undertake business in another jurisdiction is through the provision of services by an agent. The chapter examines one particular issue in relation to agents in international tax treaties: the treatment of commissionaire arrangements. The question here is whether the commissionaire constitutes a ‘dependent agent’. The issue has arisen due to different conceptions of agents under civil law and common law. The potential for differing tax treatment arising from the various concepts of agents was recognized during the drafting of the first model tax treaties in 1928 but the issue was left unresolved. However, the potential to avoid taxation or minimize taxes through the use of commissionaire arrangements has recently been addressed through the coordinated global effort to target base erosion and profit shifting (BEPS).
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ItemThe League of Nations and International Tax in the 1930s(Hart Publishing, 2023)In 1928, the League of Nations published the first model bilateral tax treaties, which are the foundation of the existing bilateral tax treaty network of more than 3,000 treaties. The 1928 model tax treaties were followed by the publication of two further model tax treaties in 1943 and 1946 (the Mexico and London models respectively). However, the intention after the publication of the 1928 model tax treaties was that the League would work on the development of a multilateral tax treaty. The 1928 model tax treaties were intended to be an interim solution while the League took the time necessary to develop a multilateral solution. However, despite working on the issue for more than a decade, the League again developed bilateral model tax treaties in 1943 and 1946. This chapter will examine the work of the League of Nations’ Fiscal Committee, the first permanent international committee on taxation, in the 1930s. In doing so, the chapter suggests some reasons why the development of a multilateral tax treaty proved elusive.
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ItemNo Preview AvailableThe Consequences of Criminalizing Domestic Violence(Oxford University PressNew York, 2023-11-29)Abstract Discrete offenses of nonfatal strangulation have been introduced throughout America, England, and Wales and Australia over the past 20 years. This chapter focuses on the offense of nonfatal strangulation introduced in the Australian state of Queensland. Many have viewed the introduction of this offense as a success in educating the public about the harms of nonfatal strangulation, ensuring nonfatal strangulation is taken seriously and ensuring that domestic violence abusers are held accountable. The chapter draws on recent reviews of the operation of the offense, highlighting some of the troubling, but predictable, consequences of criminalizing nonfatal strangulation. These consequences flow to victims and offenders and are most evident for marginalized members of the community, including children. It is argued in the chapter that there is a need for an approach that breaks the link between criminalization and incarceration so the criminal law response can be a more valuable and nuanced part of a holistic response to domestic violence.
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ItemThe Islamophobic Consensus: Datafying racism in Catalonia(Cambridge University Press, 2023-11)Chapter 8 analyses the use of AI and ADM tools in welfare and surveillance through the lens of critical race studies. Aitor Jimenez and Ainhoa Nadia Douhaibi point to the necessity of building a non-Anglocentric theoretical framework from which to study a new global phenomenon: the digital welfare and surveillance state. Accordingly, the authors frame its rise within the wider context of the Southern European iteration of racial neoliberalism, what they coin as the Islamophobic Consensus. As the chapter demonstrates, the digital welfare and surveillance state does not rely on the same technologies, focus on the same subjects, and pursues the same objectives in every context. On the contrary, it draws on contextual genealogies of domination, specific socioeconomic structures, and distinctive forms of distributing power. The authors provide an empirical analysis on the ways the Islamophobic Consensus is being operationalised in Catalonia and expose the overlapped racism mechanisms governing the lives of racialized black and brown young adults. The chapter demonstrates how ADM technologies designed to govern “deviated” “risky” and “dangerous” Muslim youth “radicals” connect with colonial punitive governmental strategies.
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ItemA Life Course Approach to Addressing Exponential Inequalities: Age, Gender, and Covid-19(Oxford University PressOxford, 2023-01-19)This chapter argues that age is an exponential amplifier of inequality. It puts forward a life course perspective as a nuanced lens for enriching our understanding of discrimination and its impacts over time. A life course approach offers a targeted focus for addressing exponential inequalities, drawing our attention to discrimination at critical transition points. Building on this life course perspective, experiences of discrimination over time can be seen as non-linear and multi-directional, but still interlinked and biographic, punctuating and shaping life stories in unpredictable ways. These ideas are illustrated through a case study of gendered ageism at work, drawing on empirical evidence to map how gender inequality is amplified with age and time, and further exacerbated by the impacts of the Covid-19 pandemic. Viewed with this life course lens, this chapter argues that discrimination law appears fundamentally ill-adapted for responding to exponential inequalities. The chapter therefore considers the extent to which ‘next generation’ positive duties—like the Gender Equality Act 2020 (Vic)—might address these concerns.
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ItemGroup Privacy? A Further Question for Our Information Societies(Routledge, 2023)The argument in this chapter is that there is an urgent need for the law to herald and shape normative expectations capable of protecting group and collective privacy interests. In a world where decision-making is increasingly digitally driven, legal protection of a broad range of information privacy interests is currently hamstrung by the law’s narrow focus on data that relates to an identified or identifiable individual. Much information that matters to individuals as members of groups, and to groups qua groups, is unprotected by data protection and privacy law. Distribution of the benefits that flow from use and disclosure of data relating to groups is determined by those with the de facto power to do so. This is neither inevitable nor unavoidable. The law can shape normative expectations in relation to data with consequence to individuals as members of groups. It may do so through at least two existing legal mechanisms. There is scope within existing data protection law to extend a privacy impact assessment (PIA) to consider the implications of data processing for society generally and to insist on processing that is ‘fair’ in this light. There is some regulatory support for this idea, but while data protection remains tethered to the concept of personal data, its reach will be limited. In countries with a legal history that permits it, greater opportunity lies in reconnecting with original principles of the common law duty of confidentiality. From this perspective, the law has traditionally been willing to intervene to protect vulnerable parties from abuse of power where unfair use is made of information. There is opportunity, and need, for the courts to take the lead and provide remedy against information wrongs to group privacy where principles of equity, and justice, demand it.
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ItemSeparation of Powers(Edward Elgar, 2023)The separation of powers is a normative concept at the centre of democratic constitutionalism which focuses on the correct constitutional organization of the state. This entry will describe how this concept has combined normative ideas about the importance of institutional balance and divided state functions into four well-known constitutional forms. It will then examine three current debates that focus on the concept’s central ideas of form, balance and function. A critical theme throughout is that the separation of powers remains a dynamic concept that involves arguments about the best way to use constitutional balance, function and form to achieve better types of democratic politics.
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ItemAn Australian perspective(Routledge, 2022-09-30)