Melbourne Law School - Research Publications
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ItemThe Coherence of the Doctrine of Legitimate Expectations(Cambridge University Press, 2014-03)The doctrine of legitimate expectations is a developing area of administrative law, and many issues remain outstanding. Promises, practices, and policies generate legitimate expectations, but what is special about them? Why do they and only they generate legitimate expectations? The lack of an obvious answer has led some commentators to claim that the doctrine is ultimately incoherent and should be disaggregated. In this paper, we challenge this claim by arguing, first, that promises, practices, and policies each comprise or make applicable a certain type of rule, and second, that having a legitimate expectation is a matter of such a rule binding a public body to act in some way. This rule-based account gives the doctrine of legitimate expectations both coherence and distinctiveness.
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ItemNo Preview AvailableAlternative Dispute Resolution in Irish Sport(First Law Ltd., 2016)This article briefly reviews how alternative dispute resolution (ADR) is being used to resolve disputes in Irish sport. The focus of this article, which is written around four broad themes, is principally on the use of arbitration to resolve disputes arising out of the disciplinary remit of national governing bodies (NGBs).
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ItemA requiem for Champagne Heidsieck: Trade mark use and parallel importation(Thomson Reuters (Professional), 2016-04-01)The “Champagne Heidsieck rule”, under which the importation and sale of legitimate branded goods has been held not to involve use as a trade mark, has historically provided an important mechanism to facilitate the parallel importation of trade marked products in Australia. However, following a number of recent Federal Court decisions, the rule has been written out of Australian law. This means that parallel importers and sellers of second-hand goods need to rely on the problematic defence contained in s 123 of the Trade Marks Act to avoid liability. This article traces the history and reception of the Champagne Heidsieck rule in Australia, and argues that the courts have taken a wrong turn by doing away with the rule, in part based on a misunderstanding of the history of the role of confusion in registered trade mark law. After discussing the numerous problems with the current s 123 defence, we consider how the Australian law on parallel importation and sale of second-hand goods could be improved, concluding that the best option is to resurrect the Champagne Heidsieck rule.
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ItemFuller's Internal Morality of Law(Blackwell Publishing, 2016)Teased out through a playful tale about a king who failed in eight ways to make law, Lon L. Fuller's eight principles of the ‘internal morality of law’ became an important contribution to legal philosophy and rule of law theory alike. Moreover, it was Fuller's claim that his principles were not just internal to the enterprise of law, but also ‘moral’ in character, that precipitated a particular kind of ‘natural law versus legal positivism’ contest that continues among legal philosophers today. But as a recent revival of interest in Fuller's thought indicates, his scholarly agenda around the idea of ‘the internal morality of law’ was wider still and deserves revisiting for the range of avenues of inquiry it opens up.
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ItemThe Stakes of Procedural Fairness: Reflections on the Australian Position(Thomson Reuters, 2016)The justification for the rules of procedural fairness is often explained in “dignitarian” terms that prioritise the dignity of the person or “utilitarian” terms that focus on the contribution of the rules to better decision-making outcomes. This article explores what might be at stake in these different justifications for the exercise of administrative authority specifically.
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ItemNo Preview AvailableTwenty Years after the High Court's Wik Decision, How Does the 'Judicial Activism' Charge Stand Up?(The Conversation Media Group, 2016)2016 marks 20 years since the High Court handed down the Wik Peoples v Queensland decision on the extent to which pastoral leases over land in Queensland extinguished native title. This year also marks the 20-year anniversary of the stoking of the judicial activism debate in Australia.
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ItemReforming Centralism and Supervision in Armenia and Ukraine(International Institute for Democracy and Electoral Assistance, 2016)
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ItemThe Elite Threat to Constitutional Transitions(University of Virginia, 2016)Democratic constitutional transition conjures up images of a better form of politics involving enhanced popular participation and rational deliberation. But what institutions should be used to create this higher form of politics? The universal answer—focusing primarily on enhancing popular participation—argues that extraordinary institutions such as constituent assemblies and referendums are preferable to ordinary legislatures in creating this kind of elevated politics. This universal account is drawn from the theory and practice of revolutionary constitution-making in eighteenth-century America and France and its legacy in Western developed democracies today. Recent experience of post-communist constitution-making, however, challenges the universality of this answer. In this context, extraordinary institutions did not elevate the politics of constitutional transition. Instead, they did the opposite, providing a platform for partisan elites to claim popular mandates and then dominate constitution-making. These self-interested elites then abused this dominant position to insert constitutional rules into new constitutions that undermined individual rights and entrenched their own power. Ordinary legislatures, by contrast, were able to help build more impartial constitutional orders by constraining elite self-dealing and unilateralism in constitutional drafting. This post-communist experience suggests the dangers of transplanting this revolutionary constitution-making tradition into post-authoritarian contexts. In these settings, an extraordinary and revolutionary form of constitution-making politics can enable elite self-dealing. Post-communism therefore suggests that an ordinary form of constitution-making politics—centered around ordinary legislatures and ordered politics as bargaining—can help to solve this elite threat and therefore encourage a more deliberative, popularly engaged, and therefore successful process of constitutional transition.
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ItemIs Socialist Law Really Dead?(New York University School of Law, 2016)This Article argues that the socialist legal system did not die in the late 1980s. Instead, the statist parts of the socialist legal system — drawn from Leninist ideology and the Russian legal tradition — have strongly influenced the law in the People’s Republic of China since the early 1980s. In fact, these Russo-Leninist transplants from the socialist legal system remain resilient in contemporary China. This Article will demonstrate how these Russo-Leninist transplants help create distinctive public law institutions and approaches in China that have been ignored by many scholars. By understanding these particular institutions and approaches, this Article will seek to better understand the possibilities of reforming China’s distinctive formal legal institutions as well as its public law system.
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ItemTo What Extent Should Lead Firms be Held Liable for Workplace Contraventions?(Australian National University, 2016)