Melbourne Law School - Research Publications
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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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ItemReimagining Copyright's Duration(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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ItemAsking the Right Questions in Copyright Cases: Lessons from Aereo and its International Brethren(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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ItemIs It Copyright's Role to Fill Houses with Books?(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.
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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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ItemNo Preview AvailableCompliance: 14 Questions(ANU Press, 2017)
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ItemAn Australian perspective(Routledge, 2022-09-30)