Melbourne Law School - Research Publications
Now showing items 1-12 of 767
Constitutional Implementation for Sustainable Peace
(Constitution Transformation Network and Folke Bernadotte Academy, 2019)
The purpose of this Report is to explore whether and, if so how, the implementation of constitutional inclusion mechanisms (broadly understood) is significant to sustainable peace. This Report develops an analytical framework to firstly assess constitutional implementation and secondly to identify connections between constitutional implementation and sustainable peace. The case of the Autonomous Region of Bougainville, within the state of Papua New Guinea, is used as an initial case-study to test this analytical framework and to systematically understand the connections between peace-building, constitutions, implementation and sustainable peace.
What Happens to Small Towns Whose Water Becomes Big Business for Bottled Brands?
Groundwater being pumped from a highland aquifer, only to be whisked away in tankers and sold in little plastic bottles by a multinational corporation – it’s a difficult concept for a small farming town to swallow.
Managing the Hidden Water Beneath our Feet
Decision-makers have significant discretion when it comes to regulating groundwater, but there is too little transparency about how it is used and its effect on the local environment.
Why do Australia’s Environmental Laws Fail to Save our Species from Extinction?
Transformative change is needed in Australia to deal with its extinction record, which is being further exacerbated by large resource extraction approvals and increased urbanization. Legal opportunities are procedurally and jurisdictionally complex and imaginative changes that can drive recovery efforts for ecosystems are urgently needed.
Federalism and Environmental Frontiers
Allocating and coordinating powers over parts of the environment horizontally and vertically between governments can help – or hinder – efforts to address environmental problems. As the final blogger in this series, I explain how my research addresses this issue at the intersection of two of the major lines of inquiry of the IACL Research Group on New Frontiers of Federalism, with examples from several jurisdictions around the globe.
‘Rainbow Statelessness’ — Between Sexual Citizenship and Legal Theory: Exploring the Statelessness–LGBTIQ+ Nexus
<jats:p>This article responds to the literature gap within both discourses on ‘sexual citizenship’ and statelessness studies on the nexus between statelessness and sexual orientation, gender identity and expression, and sex characteristics (‘SOGIESC’). It explores the intersectional experiences of stateless lesbian, gay, bisexual, transgender, intersex and queer plus (‘LGBTIQ+’) individuals as well as circumstances in which discrimination on SOGIESC grounds can cause statelessness for LGBTIQ+ persons or their children. In addition to rare reports of arbitrary deprivation of citizenship from LGBTIQ+ persons, the non-recognition of post-transition statuses and intersex realities may lead to situations of statelessness. Finally, complex legislation and administrative practices around assisted reproductive technology — and especially international commercial surrogacy — can leave children born within ‘rainbow families’ at particular risk of statelessness. In arguing that a global nexus does indeed exist between SOGIESC and statelessness, this article calls for further empirical research in order to provide greater nuance and context-specific understandings of the intersectional experiences and causes of statelessness for LGBTIQ+ individuals around the world.</jats:p>
Company Directors' Duties and Conflicts of Interest
(Oxford University Press, 2019)
This book contains the most detailed multi-jurisdictional analysis of directors' conflicts available drawing together relevant case law, codes and statutory regulation from the law applying to directors of companies incorporated under the UK Companies Acts, with extensive reference to the law in Australia, Canada, Hong Kong and New Zealand.
The Grounding Requirement for Direct Discrimination
(Sweet and Maxwell, 2020)
In order for an alleged discriminator to be found liable for direct discrimination in the United Kingdom under the Equality Act 2010, the treatment they accorded the complainant must have been “because of” the complainant’s possession of a protected characteristic (such as their race or sex). We shall refer to this as the “grounding requirement” for direct discrimination. Over the last 30 years, the House of Lords and the Supreme Court have grappled with how best to understand the grounding requirement. Initially, the dominant approach was to understand the grounding requirement as laying down a test of “but for” causation. On this approach, we ask: would the alleged discriminator have accorded the treatment to the complainant but for the complainant’s possession of the protected characteristic? More recently, there has been a shift by some members of the Supreme Court to a different approach. Pursuant to this approach, one asks whether the test or criterion used by the alleged discriminator, in deciding how to treat the complainant, makes reference to the complainant’s possession of a protected characteristic. We shall call this the “criterial approach”. Nonetheless, the but-for test has not been entirely abandoned. Our aim in this article is to criticise both of the approaches utilised by the Supreme Court – ie the but for approach and the criterial approach – and then to suggest a better way of understanding the grounding requirement. In section 2 we first present the but-for test in more detail. We then consider the main objection that has been offered to that test, namely that it cannot adequately resolve cases where there are multiple sufficient causes of the alleged discriminator’s treatment of the complainant. We suggest that it may be possible to modify the but for test so as to meet this objection. However, we will argue that there are other respects in which the but for test is unsatisfactory. In section 3 we consider the criterial approach. This approach has been less discussed in the academic literature. We argue that there will often be no principled way in which to identify a particular criterion as “the” test used by the alleged discriminator. For this reason, as well as others, we contend that the criterial approach is unworkable. In section 4 of the article we present our preferred way of understanding the grounding requirement, which we shall call the “reasoning-oriented” approach. Pursuant to this approach, one should not seek to identify a single criterion on which the alleged discriminator acted. Instead, the grounding requirement is satisfied if the complainant’s possession of a protected attribute featured in any way in the alleged discriminator’s reasoning in support of the treatment they accorded to the complainant. We will argue that this reasoning-oriented approach overcomes the difficulties with the but for and criterial approaches. We will also distinguish this approach from other similar approaches to understanding the grounding requirement. In section 5, we address the objection that our preferred approach is under-inclusive.
Directors' Duties and Whistleblowing
(Springer Nature, 2020)
The relationship between whistleblowing and directors' duties is not straightforward. Directors' core duties (duty of care, duties to act in good faith in the interests of the company and for proper purposes, and duties to avoid unauthorised conflicts and profits) are owed to the company and not directly to whistleblowers or employees.
Online Dispute Resolution for Small Civil Claims in Victoria: A New Paradigm in Civil Justice
(Deakin Law School, 2019)
This article seeks to explore some of the implications of integrating information and communications technology into judicial processes to resolve small civil claims. It argues that, as ODR moves from individual private-sector initiatives to widespread public sector institutionalisation, governance and value questions will need to be seriously considered. This is because questions regarding the appropriateness of the use of certain ODR systems in the resolution of small claims and consumer disputes persist, especially in relation to the use of systems which are fully autonomous. For example, how are fundamental due process requirements to be balanced against the economic constraints of resolving low value disputes? What are the limits to the evolution of civil justice to make it more accessible? It is argued that, while ODR holds vast potential for increasing access to justice, attention needs to be given to the dispute system design to ensure that it achieves that goal and does not result in the erosion of fundamental values of civil justice, including accessibility, transparency, legal validity and accountability.
Understanding Academic Educators' Work in Supporting Student Wellbeing
(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.