Melbourne Law School - Research Publications

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    Agents in International Tax Treaties
    Jogarajan, S ; Haase, F ; Kofler, G (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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    The League of Nations and International Tax in the 1930s
    Jogarajan, S ; Harris, P ; de Cogan, D (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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    Lloyds Bank Ltd v Bundy: the Influence of the Omnibus Principle of Unequal Bargaining Power
    Paterson, J ; Bant, E ; Gardner, J ; Ramsay, I (Hart, 2024)
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    The consequences of criminalizing domestic violence: A case study of the non-fatal strangulation offense in Queensland, Australia
    Douglas, H ; Fitzgerald, R ; Douglas, H ; Fitz-Gibbon, K ; Goodmark, L ; Walklate, S (Oxford University Press, 2023-11-01)
    Discrete offences of non-fatal strangulation have been introduced throughout America, England and Wales and Australia over the past 20 years. We focus on the offence of non-fatal strangulation introduced in the Australian state of Queensland. Many have viewed the introduction of this offence as a success in educating the public about the harms of non-fatal strangulation, ensuring non-fatal strangulation is taken seriously and ensuring that domestic violence abusers are held accountable. We draw on recent reviews of the operation of the offence highlighting some of the troubling, but predictable, consequences of criminalizing non-fatal strangulation. These consequences flow to victims and offenders and are most evident for marginalized members of the community, including children. We argue 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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    Meta-regulation: legal accountability for corporate social responsibility
    Parker, C (Routledge, 2017-01-01)
    The chapter argues that legal accountability for corporate social responsibility (CSR) must be aimed at making business enterprises put themselves through a CSR process aimed at CSR outcomes. It sets out what meta-regulating law must do and be in order to hold companies accountable for their responsibility. The chapter briefly explains how this notion of meta-regulating law relates to the plurality of legal, non-legal and quasi-legal ‘governance’ mechanisms at work in a globalising, post-regulatory’ world. It also sets out the critique that law which attempts to meta-regulate corporate responsibility will focus on internal governance processes in a way that allows business to avoid the conflict between self-interest and social values, and therefore to avoid accountability. Meta-regulatory law is a response to the recognition that law itself is regulated by non-legal regulation, and should therefore seek to adapt itself to plural forms of regulation.
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    Consumer Choice as a Pathway to Food Diversity: A Case Study of Açaí Berry Product Labelling
    Johnson, H ; Parker, C ; Maguire, R ; Isoni, A ; Troisi, M ; Pierri, M (Springer International Publishing, 2018)
    Forest lands and the rich social and ecological diversity contained within are being lost as demand for agriculture land expands globally. During this process traditional cultivation practices are marginalised resulting in a loss of dietary diversity. As Vira et al. observe 'Despite the huge potential of forest and tree foods to contribute to diets, knowledge on many forest foods, especially wild foods, is rapidly being lost because of social change and modernisation' . Forest loss coupled with the associ­ated declines in dietary diversity and traditional knowledge are a threat to the human right to food. This right requires diverse food production systems that are sustain­able, support livelihoods (especially those who are most marginalised) and meet nutritional needs. This chapter explores the exporting and labelling of a traditional food source the "acai berry" and examines whether the production and sale of acai has the potential to improve food diversity.
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    The Islamophobic Consensus: Datafying racism in Catalonia
    Jimenez, A ; Douhaibi Arrazola, AN ; Bednarz, Z ; Zalnieriute, M (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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    Reimagining Copyright's Duration
    Giblin, R ; Giblin, R ; Weatherall, K (ANU Press, 2017)
    This collection’s foundational chapter revisited the vexed historical rationales for the grant of copyright. That uneasy juxtaposition of instrumentalist and naturalist motivations is perhaps most evident during debates about the duration of those rights. If we granted copyrights purely on instrumentalist grounds, we would grant the minimum we determined necessary to incentivise a socially optimal amount of creation. If we were driven exclusively by naturalist considerations, those rights would be perpetual.
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    Asking the Right Questions in Copyright Cases: Lessons from Aereo and its International Brethren
    Giblin, R ; Ginsburg, J ; Pistorius, T (Edward Elgar Publishing Ltd, 2018)
    This chapter addresses the implications of business models that fulfill demand for individual access to works in a manner which avoids liability for infringing the public performance and reproduction rights. The authors argue that the opportunistic engineering choices that obscure some courts’ perceptions of the impact on the on-demand access market risk removing evolving markets from the scope of copyright owners’ exclusive rights. Businesses that free-ride on copyrighted works also obtain an unfair competitive advantage over copyright licensees. The authors argue that liability should not turn on ancillary questions such as who did the act, whether unique copies were made, or the size of a transmission’s potential audience, because these bases for (or against) liability can be vulnerable to manipulation and exploitation. Instead asking the ‘right’ questions should lead to principled conclusions about the legal effects (if any) that should flow from distinctions between technological modes of exploitation.
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    Is It Copyright's Role to Fill Houses with Books?
    Giblin, R ; Frankel, S ; Gervais, D (Victoria University Press, 2017)
    The tale of the beggar, the cook and the judge appears now and then in folklore. A common version begins with a beggar savouring the aroma of a merchant's stew. When hauled before a court to account for his theft, he is forced to disgorge his tiny stock of coins. But the merchant doesn't get to keep them: the judge rules that the sound of the money is sufficient to compensate for the smell of the dish. This allegory is a helpful prompt in thinking about legal treatment of intangibles generally, but is particularly thought-provoking in the current socio-technological environment.