Melbourne Law School - Research Publications

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    Contract Damages for Defective Construction Work: An Unsolvable Puzzle?
    Bell, M (Society of Construction Law, 2022)
    The paper considers the assessment of damages for defective work and the puzzle posed by rectification damages. It outlines the high-level principles applicable to it in the UK and Australia, and goes on to focus on the 2017 Australian decision of Stone v Chappel. In that case the court distilled the factors relevant to whether it is reasonable to award damages based upon the rectification measure, and provided a ‘shopping list’ of principles, which has been recently borne out in Xtraordinary Constructions Pty Ltd v Luppino. The paper suggests that the approach taken in Luppino demonstrates that the list in Stone is sufficiently flexible and robust and is worthy of consideration in other jurisdictions. However, the author highlights a risk that the codification of factors as expounded in Stone could undermine considerations which should be overarching, such as the need for the building to be safe for all occupants. He warns that a potential disparity in bargaining positions could encourage builders to reflect these factors in their contracts in order to preclude arguments that residents should expect anything better than a baseline level of quality. For these reasons, the paper suggests that it should be an overriding factor within any adopted menu of elements that rectification be deemed reasonable to the extent that the defect threatens the health and safety of occupants of the building.
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    Labour Law Enforcement and COVID-19’
    Hardy, T ; Amendola, S ; Tran, O (University of Melbourne, 2020)
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    Compliance Defiance: Reviewing the Role of Deterrence in Employment Standards Enforcement
    Hardy, T (The Hebrew University of Jerusalem, 2020)
    This paper begins by locating the concept of deterrence by first describing orthodox deterrence theory, before considering the extent to which deterrence principles are reflected in some of the most well-known models of employment standards enforcement, including responsive regulation and strategic enforcement. It then examines empirical research which seeks to test the regulatory power and potential of various deterrence-based mechanisms, including criminal prosecution, civil litigation, investigations and administrative sanctions. This paper argues that to better address the problem of compliance defiance, one must move away from the assumption that increasing the severity of the sanction will ‘supercharge’ deterrence in and of itself. Drawing on the preceding analysis, the paper then considers recent developments, and proposed reforms, in Australia to explore paths to possible expansion of the concept of deterrence, and innovative ways in which to shift the relevant compliance calculus.
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    Toward a Legal Framework for Regime Interaction: Lessons from Fisheries, Trade and Environmental Regimes
    Young, M (Cambridge University Press on behalf of the American Society of International Law, 2011)
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    Understanding Academic Educators' Work in Supporting Student Wellbeing
    Brooker, A ; Baik, C ; Larcombe, W (Higher Education Research and Development Society of Australasia Inc, 2017)
    Universities are increasingly concerned with student mental health, as empirical studies indicate a high prevalence and severity of psychological distress among student populations (Larcombe et al., 2016; Bore et al., 2016). From a developmental systems perspective, discussions about student wellbeing must include the perspectives and needs of academic educators. Edward L. Deci and Richard M. Ryan’s Self-Determination Theory (Ryan & Deci, 2000) offers several suggestions for how academic educators can facilitate wellbeing through their teaching, but there is still little evidence of the work that educators do to promote student wellbeing as part of their everyday practice. Using an online survey, we asked 315 academic educators from diverse disciplines at three universities about their experiences with student mental health: their awareness of related issues, their strategies, and institutional supports. In general, respondents were aware and concerned about student mental health. They described diverse strategies for promoting student wellbeing, many of which were common practices in higher education, and all of which were consistent with Self-Determination Theory approaches. The implication for educators concerned with wellbeing is to identify the elements of their teaching that might already be promoting wellbeing. Respondents also wanted greater institutional support around responding to student distress and around mental health literacy. Their comments highlight the importance of a developmental systems approach to student wellbeing in which university systems work together and support each other.
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    Security of Payment in the Construction Industry: Does International Experience Provide a Crystal Ball for North America?
    Bell, M ; Ennis, C ; Juddoo, A ; Rajoo, S ; Reynolds, B ; Vogel, S (Society of Construction Law North America, 2018)
    Over the past two decades, more than a dozen jurisdictions around the world have enacted legislative reform programs to promote ‘security of payment’ within their construction industries. There are two linked foundations to these reforms: ensuring prompt payment for work done, and rapid interim adjudication of disputes over the amount of payment due for that work. This paper examines the reform processes currently underway in North America, focusing on those recently implemented in Ontario, Canada. It then draws on the experience in several other jurisdictions which have had security of payment legislation in place for some time (the UK, Ireland, the Australian states and territories, New Zealand, and Malaysia), along with proposed legislation in Mauritius, in order to distil lessons which can be applied for the benefit of the reform programs in North America. These include the need for clarity and, to the extent possible, cross-border consistency in the drafting and application of the elements of the schemes.
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    Translating the International Convention on Racial Discrimination into Australian law
    Charlesworth, H (Australian Human Rights Commission, 2015)
    The papers in this publication reflect the major themes explored in February: the Act’s history and impact, the question of racial vilification and free speech, emergent challenges concerning cyber racism, the relationship between race and religion, systemic outcomes and the law, and the Act’s ability to protect Indigenous Australians against racial discrimination.