Melbourne Law School - Research Publications
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ItemContract Damages for Defective Construction Work: An Unsolvable Puzzle?(Thomson Reuters (Professional), 2022-11-11)This article considers how the common law decides upon the appropriate measure of damages where there is a breach of contract resulting in defective construction work. It focuses upon recent case law from South Australia offering a “menu” of factors which can be taken into account in deciding whether damages based upon the cost of rectification of the work ought to be awarded. This “menu” is by no means unproblematic; it sits in tension with High Court authority which leaves unresolved the more nuanced aspects of how parties’ performance interests are to be upheld by way of damages awards. Hence, the “puzzle” aspect of the article’s title. The article concludes that the “menu” is worthy of consideration outside of South Australia, but should include an overriding factor that rectification will be deemed reasonable to the extent that the defect threatens the health and safety of occupants of the building.
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ItemNo Preview AvailableConsensus and Diversity in the World Trade Organization: A Queer Perspective(Cambridge University Press (CUP), 2022)When the World Trade Organization (WTO) was established in 1995, it was seen as representative of a new era in international law, which claimed to be more functional and cooperative than the Cold War years. Fast forward to 2022, most commentators proclaim that the WTO is in “crisis.” For over two decades, its membership has struggled to reach decisions and, in 2019, the WTO was “dejudicialized” by the United States blocking consensus on appointments to the Appellate Body. In seeking to understand what went wrong, some commentators have focused on the operation of the WTO's consensus procedure and, in particular, the way it can afford states a veto power. In this essay, I take a different approach by considering how the discursive effects of consensus decision making have played into some of the problems facing the WTO today. Inspired by Gibson-Graham's work on “queering the economy,” I do so by unmooring queer theory from its base of gender and sexuality and applying queer insights to a discourse analysis of statements made in relation to the Uruguay Round of multilateral trade negotiations, which lasted from 1986 until 1993 and culminated in the agreement to establish the WTO. I show how the use of consensus decision making served to cultivate an intolerance of economic difference by giving rise to discourses of worldwide sameness and agreement. Finally, I consider what a queerer approach to trade-related decision making might look like.
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ItemThinking with Jurisdiction Shaun McVeigh and Sundhya Pahuja in Conversation(Verlag C.H.Beck oHG, 2022-01-01)
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ItemCOVID-19, Macroeconomic and Sustainability Shocks, Moral Hazard and Resolution of Systemic Banking Crises: Designing Appropriate Systems of Public Support(SPRINGER HEIDELBERG, 2022-08-09)Abstract Banks have so far weathered well the financial turbulence caused by COVID-19 while at the same time being central in the economic and financial response. As the crisis moves from its initial phase as a short-term liquidity shock, the financial sector is facing increasing volumes of non-performing loans, raising the spectre of a banking solvency crisis. In economies already burdened with low-quality assets, the COVID-19 fallout is intensifying existing problems with legacy loans heightening the risk of a banking crisis. These issues are now being worsened by the impact of inflation and the invasion of Ukraine. Thus, addressing increasing volumes of bad loans, while supporting the proper functioning of the financial system, is a major challenge with systemic repercussions for a range of economies. This paper identifies a great paradox: since the bank rescues of the 2008–9 Global Financial Crisis there has been a disproportionate focus on the liability side of bank balance sheets through resolution measures such as bail-in and the accumulation of bail-inable debt. Post-crisis bank resolution regimes have overlooked solutions lying within the asset side of bank balance sheets. This paper analyses historical evidence to argue that concentrating on a liability-focused approach to the exclusion of asset-side solutions is ill-conceived. An excessive accumulation of non-performing loans on the asset side of bank balance sheets inevitably renders resolution interventions on the liability/equity side ineffective or at the very least insufficient to maintain banking system viability and financial stability. Bank asset restructuring involving the use of asset management companies, asset protection schemes and even capital injections can play a critical role in achieving an expeditious restoration of banking systems’ health following a major macroeconomic, sustainability or financial crisis.
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ItemWater rights for groundwater environments as an enabling condition for adaptive water governance(RESILIENCE ALLIANCE, 2022-06-01)
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ItemJudicial Discomfort Over 'Innovative' Treatment for Adolescents with Gender Dysphoria(OXFORD UNIV PRESS, 2022-07-13)Medical treatment for adolescents with gender dysphoria has attracted considerable attention in recent years, with continuing court involvement in Australia and recent judicial review proceedings in the UK. In Re Imogen [No 6], the Family Court of Australia held that an application to the Family Court is mandatory if a parent or a medical practitioner of an adolescent diagnosed with gender dysphoria disputes the diagnosis, the adolescent's capacity to consent, or the proposed treatment. In this article, we examine the Family Court's rationale for preserving its welfare jurisdiction in gender dysphoria cases. We analyse case law developments in Australia and more recently in the UK and identify a thread of judicial discomfort in gender dysphoria jurisprudence about adolescents consenting to medical treatment that the court perceives to be 'innovative', 'experimental', 'unique', or 'controversial'. We explore whether treatment for gender dysphoria can be characterised as 'innovative' and identify four factors that appear to be influencing courts in Australia and the UK. We also consider how such a characterisation might impact (if at all) on an adolescent's capacity to consent to gender dysphoria treatment. We critique the ongoing role of courts in these cases and recommend a robust decision-making framework for gender dysphoria treatment to minimise court involvement in the future.
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ItemThe Organisational Pattern of Rohingya Refugee Community in Malaysia: Structural Opportunities, Constraints, and Intra-Community Dynamics(OXFORD UNIV PRESS, 2022-06-02)Abstract This article draws attention to the proliferation of Rohingya community organisations in Malaysia. Based on interviews with Rohingya activists in Kuala Lumpur greater area, evidence shows that the refugee community organisations continue to be the focal points for welfare service and protection. It is argued that the ambivalent asylum policy and increasingly unfavourable socio-political environment of the host state were mediated by the organisations through support from the accumulated social capital and established social networks in their localities. We also found that despite a call for a united, collaborative Rohingya voice in Malaysia from humanitarian observers, the community continues to mobilise in separate, locally oriented organisations. Contributing factors are shown to derive partly from the structural opportunities and constraints encountered in the local contexts of Malaysia and partly from the persistent intergroup tensions. This article contributes to debates on refugee self-reliance and their prospective role in enhancing host countries’ social and economic life, as indicated by the Global Compact on Refugees. It is also relevant to general debates about refugee mobilisation in transit countries in Southeast Asia.
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ItemEthics of Buying DNA(SPRINGER, 2022-07-19)DNA databases have significant commercial value. Direct-to-consumer genetic testing companies have built databanks using samples and information voluntarily provided by customers. As the price of genetic analysis falls, there is growing interest in building such databases by paying individuals for their DNA and personal data. This paper maps the ethical issues associated with private companies paying for DNA. We outline the benefits of building better genomic databases and describe possible concerns about crowding out, undue inducement, exploitation, and commodification. While certain objections deserve more empirical and philosophical investigation, we argue that none currently provide decisive reasons against using financial incentives to secure DNA samples.
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ItemEthics guidelines use and Indigenous governance and participation in Aboriginal and Torres Strait Islander health research: a national survey(WILEY, 2022-10-17)OBJECTIVES: To assess the use of NHMRC Indigenous research guidelines by Australian researchers and the degree of Aboriginal and Torres Strait Islander governance and participation in Indigenous health research. DESIGN, SETTING, PARTICIPANTS: Cross-sectional survey of people engaged in Indigenous health research in Australia, comprising respondents to an open invitation (social media posts in general and Indigenous health research networks) and authors of primary Indigenous health research publications (2015-2019) directly invited by email. MAIN OUTCOME MEASURES: Reported use of NHMRC guidelines for Indigenous research; reported Indigenous governance and participation in Indigenous health research. RESULTS: Of 329 people who commenced the survey, 247 people (75%) provided responses to all questions, including 61 Indigenous researchers (25%) and 195 women (79%). The NHMRC guidelines were used "all the time" by 206 respondents (83%). Most respondents (205 of 247, 83%) reported that their research teams included Indigenous people, 139 reported dedicated Indigenous advisory boards (56%), 91 reported designated seats for Indigenous representatives on ethics committees (37%), and 43 reported Indigenous health research ethics committees (17%); each proportion was larger for respondents working in Indigenous community-controlled organisations than for those working elsewhere. More than half the respondents reported meaningful Indigenous participation during five of six research phases; the exception was data analysis (reported as apparent "none" or "some of the time" by 143 participants, 58%). CONCLUSIONS: Indigenous health research in Australia is largely informed by non-Indigenous world views, led by non-Indigenous people, and undertaken in non-Indigenous organisations. Re-orientation and investment are needed to give control of the framing, design, and conduct of Indigenous health research to Indigenous people.
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ItemPromoting innovation or exacerbating inequality? Laboratory federalism and Australian age discrimination law(SAGE, 2023)According to laboratory federalism, federal systems can promote governmental innovation and experimentation, while containing the risks of innovation to only one jurisdiction. However, it is unclear whether these benefits are realised in practice, and whether states are actually effective ‘laboratories’. This article evaluates the extent to which laboratory federalism is occurring in practice, focusing on a case study of age discrimination law in Australia. Drawing on related ideas of democratic experimentalism; legal doctrinal analysis of age discrimination law in the Australian states and territories, and at the federal level; and qualitative expert interviews with 66 Australian respondents, I map the potential and limits of laboratory federalism in advancing age equality. I argue that, in this particular context, the benefits of experimentation may be outweighed by the resulting difficulties of enforcing age discrimination law, exacerbating inequality in practice. The federal structure has led to a confused and confusing patchwork of legal regulation. There is therefore a need for stronger federal structures to facilitate mutual learning and better realise the benefits of laboratory federalism.